Filed 5/29/13 P. v. Pena CA6
                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       SIXTH APPELLATE DISTRICT



THE PEOPLE,                                                          H037550
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC945872)

                  v.

DANIEL GEORGE PEÑA,

         Defendant and Appellant.



         Defendant Daniel George Peña is serving a prison term of 32 years to life for
attempted murder (Pen. Code, §§ 187, subd. (a), 664)1 accompanied by firearm use
resulting in great bodily injury (§ 12022.53, subds. (d), (e)(1)). On appeal, he claims that
the trial court erred by not instructing the jury to consider the less serious offenses of
voluntary manslaughter and attempted voluntary manslaughter. He also claims that
counsel rendered ineffective assistance of counsel when he failed to ask the court to
instruct on completed and attempted voluntary manslaughter.
         The claims are without merit and we will affirm the judgment. Defendant has also
filed a petition for writ of habeas corpus, which we have ordered considered with this
appeal. In it, he makes an additional claim of ineffective assistance of counsel arising



         1 All statutory references are to the Penal Code.
from the jury trial. We have disposed of the petition by separate order filed this date.
(Cal. Rules of Court, rule 8.387(b)(2)(B).)
                             PROCEDURAL BACKGROUND
       A first amended information charged defendant with murdering Álvaro Galindo
(§ 187) and attempting to murder Jeremy Luna (§§ 187, 664). It alleged that the
attempted murder was deliberate and premeditated (see § 664, subd. (a) [providing for a
life sentence with the possibility of parole if an attempted murder is willful, deliberate,
and premeditated]) and that defendant committed an offense to benefit a criminal street
gang (§ 186.22, subds. (b)(1)(C) [pertaining to the murder charge], (b)(5) [pertaining to
the attempted murder charge]). It also alleged that a principal in the charged offenses
intentionally discharged a firearm, causing great bodily injury to a person other than an
accomplice. (§ 12022.53, subds. (d), (e)(1).)
       Defendant was tried by jury. The jury found him guilty of attempted murder and
found true the gang and firearm-use allegations, but deadlocked on the murder charge and
whether the attempted murder was deliberate and premeditated. The trial court declared a
mistrial on the deadlocked matters and dismissed the jury. The court sentenced defendant
to the middle term of seven years for the unpremeditated attempted murder (§§ 190, subd.
(a), 2d par., 664, subd. (a)) consecutive to 25 years to life for the firearm-use
enhancement (§ 12022.53, subd. (d)). The court stayed sentencing on the gang-benefit
enhancement.
                                           FACTS
       Although defendant was charged with Galindo’s murder, in fact defendant and
Galindo were comrades-in-arms in the Sureño criminal street gang. Galindo was actually
killed by a member of the Norteño criminal street gang during a confrontation. The
prosecution’s theory was that defendant committed murder under the provocative act
doctrine, “a descriptive term referring to a subset of intervening-act homicides in which
the defendant’s conduct provokes an intermediary’s violent response that causes

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someone’s death.” (People v. Gonzalez (2012) 54 Cal.4th 643, 649, fn. 2.) As noted, the
jury could not agree on this charge and found defendant guilty only of attempted murder.
      The underlying conduct relating to this case occurred on April 12, 2009. On that
date, defendant and Galindo decided to retaliate for an incident in 2008 in which a group
of Norteños attacked defendant as he was eating at a taquería. They drove to an
apartment complex known to contain Norteño residents and a shootout ensued. Galindo
wounded one of the Norteños before another Norteño killed him. Defendant, who had
been walking next to Galindo when the shootout started, fled when he heard the sound of
a gun being cocked. The parties do not point us to any evidence that defendant was
armed during this incident. A San José police sergeant testified that defendant told him
he had not brought a gun to the showdown, and defendant insisted at trial that he had
never pulled a gun or knife on anyone.
      Defendant testified that on the day of the shootout Galindo called him and told
him that he had driven past the taquería and seen people who looked like the assailants
from the 2008 incident. Galindo asked defendant whether he wanted to fight them.
Defendant said yes. He had remained angry about the 2008 attack on him.
      Defendant further testified that Galindo picked him up in his car. In his testimony,
he denied knowing that Galindo was armed. (On cross-examination the prosecutor would
challenge defendant’s lack of knowledge; we will provide more detail in our discussion
of defendant’s ineffective assistance of counsel claim, post, p. 9.) They parked and
walked up a driveway to a place where people were present. Defendant and Galindo
initially pretended to be Norteños and asked what gang the people in the driveway
belonged to. The men responded that they were neither Norteños nor Sureños.
Defendant and Galindo then asked them to lift up their shirts, checking their gang
affiliation, and defendant noticed that some of them were wearing red or red-accented
items, suggesting that they were members of the Norteño criminal street gang.



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       At this point, defendant testified, he saw an older woman coming from her garage
and, accordingly, decided to leave the area out of respect for her. As he and Galindo
walked toward the car, he saw two people approach rapidly, heard a gun being cocked,
and said to Galindo, “vámonos,” i.e., “Let’s go,” and ducked behind a car. Gunfire
erupted, with perhaps eight rounds discharged. Jeremy Luna’s prior testimony, which
was read to the jury, implied that he and Galindo confronted each other. Galindo shot
and wounded Luna, a Norteño. Then, as established by other evidence, someone shot and
killed Galindo.
       About two months later, a San José police officer searched a place where
defendant was living after the incident. She found a camera containing photographs of
defendant, defendant’s California driver license, and blue clothing and recorded media
that suggested a link to the Sureños. She also found notebooks filled with Sureño-
identified profanity-laced references to Norteños.
                                       DISCUSSION

       I.     Failing to Instruct on Lesser Included Offense of Voluntary Manslaughter
       Defendant claims that the trial court infringed on his right to due process under the
Fifth and Fourteenth Amendments to the United States Constitution and article I, section
15 of the California Constitution, and erred under state law, by failing to instruct on
voluntary manslaughter, a lesser included offense to murder, and on attempted voluntary
manslaughter, a lesser included offense to voluntary manslaughter and attempted murder.
              A.     Background
       On July 12, 2011, the trial court and parties discussed the jury instructions to be
given. The prosecutor mentioned that the court and counsel had an in camera conference
about the instructions on the preceding Friday and that the current proceeding was a
“settlement conference.”
       Concerned to ensure that instructional decisions were placed on the record, the
trial court asked the parties to recite for the record “[a]ny others that you want to

                                              4
comment on.” In particular, the court asked about “the concept that we discussed [about]
the possibility of lessers . . . ,” i.e., lesser included offenses. “[N]one were included,” the
court noted.
       Defense counsel stated: “I did ponder it, of course, . . . and I wondered whether
voluntary manslaughter was an appropriate lesser to be included.
       “Frankly, I thought it would be a stretch to find the heat of passion, sudden quarrel
evidence that would support that.
       “And for the lack of any evidence to support it and also for tactical reasons, I did
not request any lessers.”
               B.     Legal Principles
       “ ‘ “Murder is the unlawful killing of a human being with malice aforethought.
[Citation.] A defendant who commits an intentional and unlawful killing but who lacks
malice is guilty of . . . voluntary manslaughter. [Citation.]” ’ ” (People v. Moye (2009)
47 Cal.4th 537, 549.) Voluntary manslaughter is one “of three kinds” (Pen. Code, § 192)
of the offense of manslaughter. It is an unlawful killing that occurs “upon a sudden
quarrel or heat of passion.” (Ibid.)
       “ ‘ “Manslaughter . . . is a lesser included offense of murder.” [Citation.]
“Although section 192, subdivision (a), refers to ‘sudden quarrel or heat of passion,’ the
factor which distinguishes the ‘heat of passion’ form of voluntary manslaughter from
murder is provocation.’ ” [Citation.] ‘The “ ‘heat of passion must be such a passion as
would naturally be aroused in the mind of an ordinarily reasonable person under the
given facts and circumstances . . . .’ ” [Citation.]’ [Citation.] ‘ “The provocation which
incites the defendant to homicidal conduct in the heat of passion must be caused by the
victim [citation], or be conduct reasonably believed by the defendant to have been
engaged in by the victim.” [Citation.] “[T]he victim must taunt the defendant or
otherwise initiate the provocation.” ’ ” (People v. Souza (2012) 54 Cal.4th 90, 116.)



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       “ ‘[T]he fundamental [part] of the inquiry [into whether provocation has negated
the malice element of murder and would justify a voluntary manslaughter verdict] is
whether or not the defendant’s reason was, at the time of his act, so disturbed or obscured
by some passion—not necessarily fear and never, of course, the passion for revenge—to
such an extent as would render ordinary men of average disposition liable to act rashly or
without due deliberation and reflection, and from this passion rather than from
judgment.’ ” (People v. Rich (1988) 45 Cal.3d 1036, 1112, first bracketed word added
here, second instance of bracketed material in original, italics deleted.)
       Heat of passion or sudden quarrel is not the only basis on which a verdict of
voluntary manslaughter may be rendered. Imperfect self-defense is another basis. “For
purposes of voluntary manslaughter, an intentional unlawful killing can lack malice when
the defendant . . . acted under ‘[an] unreasonable but good faith belief in having to act in
self-defense.’ ” (People v. Blacksher (2011) 52 Cal.4th 769, 832-833.)
              C.     Analysis
       Because defense counsel invited any error, defendant’s claim is unavailing.
       Defense counsel did not discuss on the record whether he had also considered
asking for a voluntary manslaughter instruction based on imperfect self-defense, i.e., a
lethal act based on an unreasonable but good faith belief in the need to defend oneself or
another person (see People v. Randle (2005) 35 Cal.4th 987, 997 [“one who kills in
imperfect defense of others—in the actual but unreasonable belief he must defend another
from imminent danger of death or great bodily injury—is guilty only of manslaughter”],
overruled on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1201).
Accordingly, on July 6, 2012, after defendant had filed his appeal, this court ordered the
trial court and parties to “undertake preparation of a settled statement with respect to any
statements by defense counsel regarding his intent to pursue the theories of self-defense
or defense of others.”



                                              6
       On July 23, 2012, the trial court and parties held a hearing to address this court’s
order. The court invited defense counsel to address “your intent to pursue the theories of
self-defense or defense of others.”
       Counsel stated: “I recall at the time of trial we met in chambers. And by ‘we,’ I
mean the Court and counsel met in chambers to discuss what jury instructions would be
given. And there was a list . . . of all the possible jury instructions that could have been
given, and Court and counsel went through each of those to see which were appropriate,
which were not, which was to be given, and which would not be given.
       “As to the self-defense and defense of others instructions, when we came to that
series of instructions, I recall saying something to the effect that ‘This is not a self-
defense case. I’m not requesting these instructions.’ And both Court and counsel agreed
that that was, in fact, the case. And we moved on.
       “I did not, at the time, articulate any particular reason for it other than the fact that
there was no substantial evidence at all to indicate that those instructions would be in any
way appropriate. I didn’t see the case as a self-defense case. I didn’t plan to argue it as a
self-defense case or defense of others. And so . . . those instructions were simply gone
over and not requested.
       “And, of course, later, as the record would reveal, when the Court asked on the
record whether there were any instructions that were not given . . . that were, in fact,
requested, I did not respond.” “And that’s the way I recall it.”
       “The doctrine of invited error is limited to those situations where it is clear that
counsel acted for tactical reasons or where there is a ‘clearly implied tactical purpose’ to
counsel’s actions.” (People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267, fn. 3.)
       “ ‘The doctrine of invited error is designed to prevent an accused from gaining a
reversal on appeal because of an error made by the trial court at his behest. If defense
counsel intentionally caused the trial court to err, the appellant cannot be heard to
complain on appeal. . . . [I]t also must be clear that counsel acted for tactical reasons and

                                               7
not out of ignorance or mistake.’ In cases involving an action affirmatively taken by
defense counsel, we have found a clearly implied tactical purpose to be sufficient to
invoke the invited error rule.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)
       “[C]ounsel’s affirmative action, as opposed to mere acquiescence,” may imply “a
tactical purpose.” (People v. Moon (2005) 37 Cal.4th 1, 28.)
       As noted, at the July 12, 2011 court session, defense counsel did not mention self-
defense but only heat of passion or sudden quarrel. At the July 23, 2012, post-trial
hearing precipitated by this court’s order for a settled statement, defense counsel recalled
having stated during the in-chambers conference that occurred during the trial that he had
considered and rejected a self-defense theory as well. At the earlier session in open court,
counsel mentioned having tactical reasons for not seeking voluntary manslaughter
instructions. It is implicit from his statements at the later hearing that tactical reasons
informed his decision not to pursue a self-defense strategy (see People v. Moon, supra, 37
Cal.4th at p. 28), just as he had expressly stated at the July 12, 2011 court session that
tactical reasons informed his decision not to pursue a voluntary manslaughter instruction
on a heat of passion or sudden quarrel theory.
       We express no opinion whether the trial court erred in failing to instruct on
voluntary manslaughter, because even if it did, the error was invited and defendant cannot
complain of it on appeal. The same is true of attempted voluntary manslaughter. In
general, an attempt is a lesser included offense of a completed crime (People v. Bailey
(2012) 54 Cal.4th 740, 753); additionally, it has been held that voluntary manslaughter is
a lesser included offense to attempted murder (People v. Van Ronk (1985) 171 Cal.App.3d
818, 820, 824-825). Counsel had his tactical reasons for not seeking instructions on any
lesser included offenses. Thus, we reject defendant’s claims that the trial court failed to
instruct on lesser included offenses.




                                               8
       II.    Ineffective Assistance of Counsel
       Defendant also claims that he received ineffective assistance of counsel because
counsel failed to seek voluntary manslaughter and attempted voluntary manslaughter
instructions. (He also argues that if we find forfeited his instructional-error claims, then
counsel’s failure to preserve such claims for review was ineffective. He does not further
discuss this notion, however, and in any event his claims of error were preserved for
review under sections 1259 and 1469.)
       Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
effective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) “The
ultimate purpose of this right is to protect the defendant’s fundamental right to a trial that
is both fair in its conduct and reliable in its result.” (Ibid.) A claim of ineffective
assistance of counsel in violation of the Sixth Amendment entails deficient performance
under an objective standard of professional reasonableness and prejudice under a test of
reasonable probability of an adverse effect on the outcome. (Strickland v. Washington
(1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply to defendant’s
claim under article I, section 15 of the California Constitution. (E.g., People v. Waidla
(2000) 22 Cal.4th 690, 718.)
       It is settled law that “ ‘ “trial counsel’s tactical decisions are accorded substantial
deference [citations], [and] . . . [a] reviewing court will not second-guess trial counsel’s
reasonable tactical decisions.” ’ ” (People v. Maldonado (2009) 172 Cal.App.4th 89, 97.)
Defendant recognizes this principle but argues that there could be nothing reasonable
about failing to seek instructions on voluntary manslaughter and attempted voluntary
manslaughter inasmuch as there would be nothing to lose by doing so.
       In fact, however, there could. The evidence before the jury was that defendant and
Galindo were looking for a fight with Norteños who they believed might have assaulted
defendant in 2008. In his testimony, defendant denied knowing that Galindo was armed,

                                               9
but on cross-examination the prosecutor challenged this assertion, asking defendant
whether he really meant to say he did not know that Galindo, who defendant
acknowledged to be a good friend, had been using the gun regularly, including firing
shots at people on a porch on the night before he was killed, shooting at people who were
standing on a street corner about two weeks before that, and leaving a man paralyzed by
gunfire in 2009. Counsel could reasonably have concluded that this cross-examination
made defendant’s denial lack credibility, allowing the jury, instead, to reason that
defendant embarked on a hunt for Norteños with a comrade-in-arms and good friend who
he knew to be armed. These possibilities could make an argument for voluntary
manslaughter based on heat of passion, sudden quarrel, or imperfect self-defense look
like an effort to massage the facts beyond any reasonable interpretation—it would, as
defense counsel told the trial court, be a “stretch.” Counsel could also have reasonably
concluded that the jury would find it obvious that defendant and Galindo were bent on
revenge, which foreclosed a voluntary manslaughter theory. (People v. Rich, supra, 45
Cal.3d at p. 1112.)
       Instead, at closing argument, defense counsel argued vigorously that his client did
not shoot anyone or intend that anyone be shot, and basically found himself in a more
serious situation than he anticipated, “more than they bargained for.” Then, counsel
argued, his client attempted to withdraw from the situation before the gunfire erupted.
Counsel could reasonably have concluded that arguing for voluntary manslaughter,
whether attempted or completed, and asking for instructions on those theories, could
make the jury less receptive to his lack-of-intent and effort-to-withdraw arguments. And
counsel could reasonably have decided that relying on voluntary manslaughter, even if he
succeeded in persuading the trial court to instruct on it, would have allowed the
prosecutor to undermine his case by highlighting the evidence of revenge. Indeed,




                                             10
counsel acknowledged the revenge factor at closing argument: “He wanted to get
revenge,” counsel said of his client. “Nobody has disputed that.”2 As noted earlier,
voluntary manslaughter cannot be based on revenge. Counsel’s closing argument
explicitly acknowledging the revenge factor at play indicates a tactical decision to base
his defense on a theory other than the lesser included offenses of voluntary manslaughter,
whether by self-defense, imperfect self-defense, heat of passion, or sudden quarrel.
       Through his advocacy, defense counsel succeeded in getting the jury to deadlock
on the more serious charge of murder and on the allegation that the attempted murder was
premeditated. We are generally disinclined to second-guess counsel’s tactics at trial, and
all the less so when they brought about partial success in the face of very difficult facts.
We therefore find no ineffective assistance of counsel.




       2 “We have repeatedly recognized that sensible concessions are an acceptable and
often necessary tactic.” (People v. Gamache (2010) 48 Cal.4th 347, 392.) Depending on
the state of the evidence, “candor may be the most effective tool available to counsel.”
(People v. Mayfield (1993) 5 Cal.4th 142, 177.)



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                                 DISPOSITION
     The judgment is affirmed.




                                    _______________________________
                                               Márquez, J.




WE CONCUR:




______________________________
 Rushing, P. J.




______________________________
 Grover, J.




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