Filed 2/11/15 P. v. Garcia CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064313

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD233007)

JOVAN A. GARCIA,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Joan P.

Weber, Judge. Affirmed.



         Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

William M. Wood and Felicity Senoski, Deputy Attorneys General, for Plaintiff and

Respondent.
       A jury found Jovan A. Garcia guilty of first degree murder (Pen. Code, § 187,

subd. (a))1 and made a true finding on a firearm enhancement (§ 12022.53 subd. (d)).

The trial court sentenced Garcia to a prison term of 50 years to life.

       Garcia contends (1) the trial court erred in denying his posttrial petition for the

release of juror information; (2) the trial court erred because it did not sua sponte give a

clarifying instruction regarding the role of provocation in deciding whether a murder is

first degree rather than second degree; and (3) defense counsel was ineffective for not

requesting a clarifying instruction on provocation. We conclude that Garcia's arguments

are without merit, and accordingly we affirm the judgment.

                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND

       Shortly before noon on March 13, 2011, Garcia killed Jesus Hernandez on the

street in front of Hernandez's house by shooting Hernandez five times while Hernandez

drove by on a small motorcycle. Two witnesses — Garcia's brother-in-law and a

neighbor — saw the shooting take place. Three days later, Garcia was identified as a

suspect and questioned by police. During the interview Garcia admitted to the shooting.

Garcia was charged with murder (§ 187, subd. (a)), with the further allegation that he

personally used a firearm causing death or great bodily injury.

       At trial, Hernandez's brother-in-law, Javier Garcia (Javier),2 testified that he was

standing in front of the family home watching Hernandez drive up and down the street on


1      Unless otherwise indicated, all further statutory references are to the Penal Code.

                                              2
a small motorcycle. Javier noticed Garcia walking down the sidewalk on the opposite

side of the street toward him and Hernandez. As Hernandez drove toward Garcia on the

motorcycle, Garcia crossed into the middle of the street and opened fire on Hernandez

from about three to four feet away, shooting five bullets into Hernandez's shoulder, chest

and thigh. Hernandez and the motorcycle fell to the ground. Garcia ran away and was

picked up by someone in a brown station wagon.

       The shooting was also witnessed by a neighbor, Delfino Flores. While walking

down the sidewalk to another neighbor's house, Flores crossed paths with Garcia just

prior to the shooting. Garcia had been dropped off near the corner by a brown station

wagon, and Flores described Garcia as looking troubled and lost.

       Flores was speaking with his neighbor and had his back turned when the shooting

started, but he turned around when he heard gunshots. He saw Garcia pointing a gun at

Hernandez and saw Hernandez on the ground. After going into the backyard of his

neighbor's house to look for something to use as a weapon, Flores came back out to the

front of the house and saw Garcia get picked up by the vehicle that had dropped him off

minutes earlier.

       Flores did not hear Garcia say anything during the shooting. Javier, in contrast,

heard Garcia say something including the word "National." Although he could not

remember the exact words at trial, Javier told the police immediately after the shooting

that Garcia said "This is National Boys." There was evidence at trial that Garcia or his

2      Because the defendant and Javier share the same surname, we will refer to Javier
by his first name, and we intend no disrespect by doing so.

                                             3
family members were associated with a group called the National Boys3 who were in a

dispute with another local group called the Untouchables. Further, according to evidence

at trial, members of the Untouchables lived on Hernandez's street.

       Garcia's videotaped interview with the police was played for the jury. During the

interview, Garcia explained why he committed the shooting.4 According to Garcia, for a

short time he had been "kick[ing] it" with the National Boys group. During that time, his

girlfriend was beaten up while at the playground with their young son.5 Garcia later

found out that "it was the guys from UT" who beat up his girlfriend.6 On the morning of

the shooting, according to Garcia, he was on a work break in the parking lot of Home

Depot when Hernandez drove up and tried to run over him with a blue truck. Garcia left

work, obtained a gun, and had a friend drive him to Hernandez's street. As Garcia

explained, he was walking down Hernandez's street when Hernandez came up to him

"trying to scare me with his dogs" who were following the motorcycle.7 Garcia


3     The group was also referred to during trial as "National Block," "National Block
Boys" or "National Block Soldiers."

4      We quote from a transcript of the interview, which was an exhibit at trial.

5    During the girlfriend's testimony, she explained that she had been beaten up in
November 2010, several months before the March 2011 shooting.

6       Although not explicitly explained at trial, from the context we infer that "UT"
likely refers to the Untouchables.

7      Witnesses testified that Hernandez owned one pit bull dog, but the testimony was
conflicting as to whether the dog was with Hernandez at the time of the shooting.

                                             4
explained, "And I was like, 'What's up?' It's like, 'What the fuck?' Then he was like,

'What's up then?' Like, I was like, 'You really want to beef with me? Like, what the

fuck? Like, what's the deal?' And then he's like, 'Yeah,' and then that's when he was going

to get off his bike and I don't know what he was going to do, I think he was going to

come at me, so I just did it." According to Garcia, Hernandez was "laughing at" him.

        During closing argument, defense counsel argued that instead of finding that

Garcia committed murder, the jury should return a verdict of voluntary manslaughter

based either on a theory of imperfect self-defense or on the theory that Garcia acted in the

heat of passion, which arose when Hernandez laughed at him, adding to Garcia's

preexisting anger toward Hernandez.

        The jury found Garcia guilty of first degree murder and made a true finding on the

firearm allegation. The trial court sentenced Garcia to prison for a term of 50 years to

life.

                                               II

                                        DISCUSSION

A.      The Trial Court Properly Denied the Petition for Release of Juror Information

        After trial, Garcia filed a petition for an order directing that the addresses and

telephone numbers of the jurors be disclosed so that defense counsel could prepare a

motion for a new trial based on jury misconduct. The trial court denied the petition on

the ground that Garcia did not make a prima facie showing of good cause for the release

of the information. Garcia challenges that decision on appeal.



                                               5
       1.     Law Governing Release of Juror Information

       As applicable here, the law provides that after the recordation of a jury's verdict in

a criminal jury proceeding, the court's record is sealed, with all personal juror identifying

information of trial jurors removed from the court record. (Code Civ. Proc., § 237,

subd. (a)(2)-(3).) Under Code of Civil Procedure section 206, subdivision (g), "a

defendant or defendant's counsel may . . . petition the court for access to personal juror

identifying information within the court's records necessary for the defendant to

communicate with jurors for the purpose of developing a motion for new trial or any

other lawful purpose."

       Code of Civil Procedure section 237, subdivision (b) sets forth the standard by

which a petition for release of juror information is evaluated. "The petition shall be

supported by a declaration that includes facts sufficient to establish good cause for the

release of the juror's personal identifying information. The court shall set the matter for

hearing if the petition and supporting declaration establish a prima facie showing of good

cause for the release of the personal juror identifying information, but shall not set the

matter for hearing if there is a showing on the record of facts that establish a compelling

interest against disclosure. A compelling interest includes, but is not limited to,

protecting jurors from threats or danger of physical harm." (Ibid.)8



8      If the trial court decides that the petitioning party has shown good cause for the
release of the information, a hearing is held after jurors are given notice of the proposed
release of personal identifying information and an opportunity to protest. (Code Civ.
Proc., § 237, subd. (c).)

                                              6
       A prima facie case of good cause is shown "if the defendant sets forth a sufficient

showing to support a reasonable belief that jury misconduct occurred." (People v.

Rhodes (1989) 212 Cal.App.3d 541, 552.) To establish good cause "the defendant . . .

has to prove that talking to the jurors is reasonably likely to produce admissible evidence

of juror misconduct." (People v. Johnson (2013) 222 Cal.App.4th 486, 493.) "This rule

safeguards both juror privacy and the integrity of our jury process against unwarranted

'fishing expeditions' by parties hoping to uncover information to invalidate the jury's

verdict." (Rhodes, at p. 552.)

       If the trial court decides that the petitioning party has made a prima facie showing

of good cause for the release of the personal juror identifying information, and there is no

other compelling interest against disclosure, jurors are given notice of the proposed

release of information and an opportunity to protest, and a hearing is held to determine

whether to release the information. (Code Civ. Proc., § 237, subd. (c).)

       A trial court's decision that a defendant has not made a prima facie showing of

good cause is reviewed for abuse of discretion. (People v. Carrasco (2008) 163

Cal.App.4th 978, 991.)

       2.     The Trial Court Did Not Abuse Its Discretion in Deciding That Garcia's
              Petition Did Not Establish Good Cause

       Here, the trial court denied Garcia's petition for the release of personal juror

identifying information on the ground that he did not make a prima facie showing of

good cause because the facts set forth in defense counsel's declaration, even if true, would




                                              7
not constitute juror misconduct. As we will explain, the trial court did not abuse its

discretion in reaching that conclusion.

       In support of his petition, Garcia submitted a declaration from defense counsel,

which described statements made by Juror No. 41 in posttrial conversations with an

investigator from the alternate public defender's office. Juror No. 19 was the foreperson,

and according to Juror No. 41's statement to the investigator, three aspects Juror No. 19's

conduct during deliberations made Juror No. 41 uncomfortable.

       First, Juror No. 19 stated during deliberations that she thought a photograph of the

scene of the shooting introduced at trial was misleading based on her personal knowledge

of the length of the street and the distance between the houses. Specifically, Juror No. 19

explained that "she had worked in that area as a physical therapist and had to go to those

homes," and based on that experience, "the houses . . . on that street were very close

together and . . . the street was not nearly as long as it had appeared in the photo."9

       Next, Juror No. 19, along with one of the male jurors, talked about their personal

knowledge of guns. In particular, Juror No. 19 said that she personally shot weapons and

that based on her personal knowledge, Garcia "couldn't have closed his eyes when he shot

and . . . it was therefore very obvious to her that [Garcia] intended to kill the deceased."




9      The length of the street was relevant to the issues at trial because defense counsel
questioned during closing argument whether Javier, who was standing approximately
four houses away from Hernandez during the shooting, was actually close enough to be
able to hear Garcia say something like "This is National Boys."

                                              8
       Finally, Juror No. 19 "had a pro prosecution agenda"; "she spoke over other

people who had different opinions"; and Juror No. 41 "finally caved in to the views of

[Juror No. 19] after forceful argument," which Juror No. 41 believed "amounted to

steamrolling."

       a.     The Juror Comments Did Not Improperly Inject Outside Information

       Garcia first argues that the information in defense counsel's declaration establishes

juror misconduct because it shows that Juror No. 19 improperly injected outside

information into the jury deliberations. Specifically, Garcia argues that it was

misconduct for Juror No. 19 to relate (1) her personal knowledge of the street on which

the shooting occurred, and (2) her personal experience with shooting guns. As we will

explain, we disagree.

       As our Supreme Court has explained, it is permissible for jurors to rely on their

personal experiences in evaluating the evidence presented at trial. "A jury's verdict in a

criminal case must be based on the evidence presented at trial, not on extrinsic

matters. . . . Nevertheless, jurors may rely on their own experiences in evaluating the

testimony of the witnesses. 'Jurors do not enter deliberations with their personal histories

erased, in essence retaining only the experience of the trial itself. Jurors are expected to

be fully functioning human beings, bringing diverse backgrounds and experiences to the

matter before them.' . . . 'Jurors bring to their deliberations knowledge and beliefs about

general matters of law and fact that find their source in everyday life and experience.

That they do so is one of the strengths of the jury system. It is also one of its weaknesses:

it has the potential to undermine determinations that should be made exclusively on the

                                              9
evidence introduced by the parties and the instructions given by the court. Such a

weakness, however, must be tolerated . . . . [Otherwise,] few verdicts would be proof

against challenge.' " (People v. Leonard (2007) 40 Cal.4th 1370, 1414, citations omitted

(Leonard).)

        " 'A juror may not express opinions based on asserted personal expertise that is

different from or contrary to the law as the trial court stated it or to the evidence, but if

we allow jurors with specialized knowledge to sit on a jury, and we do, we must allow

those jurors to use their experience in evaluating and interpreting that evidence.' "

(People v. Allen and Johnson (2011) 53 Cal.4th 60, 77 (Allen and Johnson).) "Jurors'

views of the evidence . . . are necessarily informed by their life experiences, including

their education and professional work. A juror, however, should not discuss an opinion

explicitly based on specialized information obtained from outside sources. Such injection

of external information in the form of a juror's own claim to expertise or specialized

knowledge of a matter at issue is misconduct." (In re Malone (1996) 12 Cal.4th 935,

963.)

        Here, in commenting that the photographic exhibit of the street was not an

accurate representation of the street's length, there is no suggestion that Juror No. 19

consulted any outside sources for any specialized information about the scene of the

crime. Instead, Juror No. 19 properly relied on her personal familiarity with the street to

evaluate the evidence presented at trial. Specifically, as Juror No. 19 had experience with

the neighborhood, she was permitted to use her own preexisting personal knowledge to

evaluate the photographic exhibit to determine whether the photograph was a credible

                                              10
representation of the crime scene. Indeed, it would have been impossible for Juror

No. 19 to have divorced her evaluation of the photographic evidence from her personal

knowledge of the physical layout of the neighborhood. As our Supreme Court has

explained, "a distinction must be drawn between the introduction of new facts and a

juror's reliance on his or her life experience when evaluating evidence." (Allen and

Johnson, supra, 53 Cal.4th at p. 76 [juror permissibly discussed his own experience with

timecards in the workplace to conclude that a witness was not telling the truth about a

particular factual scenario involving timecards]; see also In re Lucas (2004) 33 Cal.4th

682, 696 [juror did not commit misconduct by relating his personal experiences with drug

use as part of evaluating the evidence at trial].) Here, Juror No. 19 did not commit

misconduct in commenting on the length of the street because she simply evaluated the

evidence based on her own life experiences rather than impermissibly introducing new

facts into the jury deliberations.

       It was also not misconduct for Juror No. 19, joined by one other juror, to comment

about personal experiences with guns to evaluate whether Garcia was credible in

claiming to have shot Hernandez with his eyes closed. In a similar situation, our

Supreme Court concluded that it was "a normal part of jury deliberations and . . . not

misconduct" for a juror with personal experiences with firearms to form an opinion based

on that experience. (Leonard, supra, 40 Cal.4th at p. 1414.) Specifically, the juror in

Leonard properly evaluated the evidence based on his personal experience and did not

impermissibly inject outside evidence when he "said he had experience firing handguns,

and that the murder weapon was an 'up close and personal' gun that could be accurately

                                            11
fired at close range without expertise." (Id. at pp. 1413-1414.) Just as in Leonard, the

jurors in this case permissibly used their personal experience with guns, and related it

during deliberations, to help form an opinion on the evidence presented at trial, rather

than impermissibly introducing outside evidence.

       b.     Garcia Did Not Make a Prima Facie Showing of Juror Misconduct Based
              on Bias

       Garcia also contends that he made a prima facie showing requiring release of juror

information because he showed that Juror No. 19 was impermissibly biased in favor of

the prosecution. In support of this argument, Garcia points to the fact that, during voir

dire, Juror No. 19 disclosed that she was married to a San Diego County deputy district

attorney and that her brother-in-law held the same position in another county. Although,

Juror No. 19 stated at that time that she would have no reservations returning a guilty

verdict if warranted by the evidence, Garcia argues that she was nevertheless biased in

favor of the prosecution based on her background. Garcia supports this contention solely

by relying on Juror No. 41's claim that Juror No. 19 "had a pro prosecution agenda"; "she

spoke over other people who had different opinions"; and that she engaged in "forceful

argument" that "amounted to steamrolling."

       It is well established that " '[f]or a juror to prejudge the case is serious

misconduct.' " (Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th 778, 792.)

Thus, for example, juror misconduct may be established by a party establishing a juror

made up his or her mind based on prejudice and bias before hearing all the evidence at

trial. (People v. Brown (1976) 61 Cal.App.3d 476, 480.) "[W]here a verdict is attacked


                                               12
for juror taint, the focus is on whether there is any overt event or circumstance, 'open to

[corroboration by] sight, hearing, and the other senses' [citation], which suggests a

likelihood that one or more members of the jury were influenced by improper bias." (In

re Hamilton (1999) 20 Cal.4th 273, 294, italics omitted.)10

       Here, although Garcia contends that Juror No. 19 prejudged the case based on pro-

prosecution bias, the statements in defense counsel's declaration do not support such an

inference. Juror No. 41 states that Juror No. 19 "had a pro prosecution agenda" during

deliberations and engaged in "forceful argument." However, this establishes nothing

more than that Juror No. 19 felt that the evidence supported the prosecution and argued

forcefully to convince her fellow jurors of her views after hearing all of the evidence at

trial. Garcia has presented no evidence of an "overt event or circumstance, 'open to

[corroboration by] sight, hearing, and the other senses' " (In re Hamilton, supra, 20

Cal.4th at p. 294), that would suggest Juror No. 19 made up her mind about the case

before hearing all of the evidence. Further, the forceful nature of Juror No. 19's

statements in the jury room do not establish impermissible bias. " 'Jurors may be


10      The focus on evidence of an overt act or circumstance to show improper bias is
premised on Evidence Code section 1150, subdivision (a), which provides: "Upon an
inquiry as to the validity of a verdict, any otherwise admissible evidence may be received
as to statements made, or conduct, conditions, or events occurring, either within or
without the jury room, of such a character as is likely to have influenced the verdict
improperly. No evidence is admissible to show the effect of such statement, conduct,
condition, or event upon a juror either in influencing him to assent to or dissent from the
verdict or concerning the mental processes by which it was determined." (See People v.
Gonzales (2012) 54 Cal.4th 1234, 1281 [the limitation in Evid. Code, § 1150 "prevents
one juror from upsetting a verdict of the whole jury by impugning his own or his fellow
jurors' mental processes or reasons for assent or dissent"].)

                                             13
expected to disagree during deliberations, even at times in heated fashion.' Thus, '[t]o

permit inquiry as to the validity of a verdict based upon the demeanor, eccentricities or

personalities of individual jurors would deprive the jury room of its inherent quality of

free expression.' " (People v. Keenan (1988) 46 Cal.3d 478, 541.) Juror No. 19's

decision, after hearing the evidence, to advocate for a prosecution verdict is well within

the normal scope of juror deliberations and does not suggest that Juror No. 19 prejudged

the evidence.

       In sum, the trial court was well within its discretion to conclude that Garcia did not

make a prima facie showing of good cause to release personal juror identifying

information because defense counsel's declaration did not set forth facts, which if further

developed after contacting jurors, would support a claim of juror misconduct.

B.     Garcia's Claim of Instructional Error Is Without Merit

       We next turn to Garcia's claim of instructional error. One of Garcia's main

defense theories was that he acted in the heat of passion, after being provoked by

Hernandez, and was therefore guilty of voluntary manslaughter, not murder. Related to

the theory that Garcia was provoked by Hernandez, defense counsel requested that the

trial court instruct the jury with CALCRIM No. 522, which explains that provocation

may reduce a murder from first degree to second degree, as well as reduce a murder

charge to manslaughter. Although, as requested by Garcia, the trial court instructed the

jury with CALCRIM No. 522, and Garcia did not request any clarifications to CALCRIM

No. 522 in the trial court, Garcia contends on appeal that the trial court erred in not sua

sponte adding clarifying language to CALCRIM No. 522.

                                             14
       Garcia does not explain exactly what language he contends the trial court should

have added to CALCRIM No. 522, but he broadly describes the concept that he believes

the trial court should have conveyed to the jury. Garcia explains that as stated in the

instruction on voluntary manslaughter premised on a heat of passion theory (CALCRIM

No. 570), provocation is sufficient to reduce murder to voluntary manslaughter only

when the jury finds that a reasonable person standard is met. Specifically, the

provocation must be of the type to "cause[] a person of average disposition to act rashly

and without due deliberation" (CALCRIM No. 570). In contrast, when provocation is

used to reduce first degree murder to second degree murder by negating the presence of

premeditation and deliberation, the reasonable person standard does not apply. (See

People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332 ["If the provocation would not

cause an average person to experience deadly passion but it precludes the defendant from

subjectively deliberating or premeditating, the crime is second degree murder."].) Any

provocation that serves to support a finding that the defendant acted without

premeditation or deliberation is sufficient to reduce murder from first degree to second

degree. (Ibid.) Garcia contends that the jury should have been instructed on this concept.

       We reject Garcia's argument because he did not preserve it by making a request for

the instructional clarification to CALCRIM No. 522 in the trial court. This case falls

under the rule that "[a] trial court has no sua sponte duty to revise or improve upon an

accurate statement of law without a request from counsel [citation], and failure to request

clarification of an otherwise correct instruction forfeits the claim of error for purposes of

appeal." (People v. Lee (2011) 51 Cal.4th 620, 638.) CALCRIM No. 522 accurately

                                             15
states the law, and Garcia does not argue otherwise.11 Accordingly, "[i]f defendant

believed the instruction . . . required elaboration or clarification, he was obliged to

request such elaboration or clarification in the trial court." (Lee, at p. 638.)12 As Garcia

did not request a clarification to CALCRIM No. 522 in the trial court, he may not argue

on appeal that the trial court erred in not giving the clarifying instruction.

C.     Garcia Has Not Established Ineffective Assistance of Counsel

       In a brief argument, Garcia contends that the trial court was ineffective for not

requesting the clarification to CALCRIM No. 522 that we have discussed above.13


11      Although not challenging CALCRIM No. 522 as an accurate statement of the law,
Garcia argues that the instructions as a whole were misleading and should have been
clarified because the instruction on voluntary manslaughter based on heat of passion
(CALCRIM No. 570), when read in combination with CALCRIM No. 522, gives the
impression that provocation can reduce first degree murder to second degree murder only
if the provocation satisfies a reasonable person standard. We disagree. CALCRIM
No. 570 clearly states that it is describing the specific requirements for provocation to
reduce murder to voluntary manslaughter, and nothing in the instruction suggests that it
describes the requirements for reducing first degree murder to second degree.

12     In addition, it is well established that if CALCRIM No. 522 is not requested, a trial
court has no sua sponte duty to give the instruction. (People v. Rogers (2006) 39 Cal.4th
826, 878-879.) It logically follows that if the trial court has no sua sponte duty to give
CALCRIM No. 522, it also has no sua sponte duty to instruct with a clarifying
modification to CALCRIM No. 522 as Garcia contends is the case here.

13     We note that Garcia has improperly failed to include his ineffective assistance
argument under a separate argument heading in his appellate brief. Although we could
decline to reach the merits of the argument on that basis, we will exercise our discretion
to consider it. (See Cal. Rules of Court, rule 8.204(a)(1) ["Each brief must: [¶] . . . [¶]
(B) State each point under a separate heading or subheading summarizing the point, and
support each point by argument . . . ."]; Alameida v. State Personnel Bd. (2004) 120
Cal.App.4th 46, 59 ["We may disregard arguments not properly presented under
appropriate headings."].)

                                              16
       "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

assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) A defendant

claiming ineffective assistance of counsel has the burden to show: (1) counsel's

performance was deficient, falling below an objective standard of reasonableness under

prevailing professional norms; and (2) the deficient performance resulted in prejudice.

(Strickland v. Washington (1984) 466 U.S. 668, 687; Ledesma, at pp. 216, 218.)

Prejudice is shown when "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome." (Strickland, at p. 694.)

       Further, as is important here, "[r]eviewing courts reverse convictions on direct

appeal on the ground of incompetence of counsel only if the record on appeal

demonstrates there could be no rational tactical purpose for counsel's omissions."

(People v. Lucas (1995) 12 Cal.4th 415, 442; see People v. Anderson (2001) 25 Cal.4th

543, 569.) "In the usual case, where counsel's trial tactics or strategic reasons for

challenged decisions do not appear on the record, we will not find ineffective assistance

of counsel on appeal unless there could be no conceivable reason for counsel's acts or

omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.)

       Garcia fails to establish that he received ineffective assistance, as defense counsel

could have had a sound tactical basis for not asking the trial court to expand on

CALCRIM No. 522. Specifically, it is reasonable for defense counsel to decline to

                                             17
request an instruction that does not advance the defense's theory of the case. (People v.

Wader (1993) 5 Cal.4th 610, 643 [defense counsel could have had a rational tactical

purpose for not requesting an instruction that was inconsistent with the defense's theory

of the case that the defendant did not intend to kill the victim].) Here, defense counsel's

closing argument showed that she was focused on convincing the jury to rely on a heat of

passion theory to reduce murder to voluntary manslaughter. Additional jury instructions

on provocation as a basis for second degree murder as set forth in CALCRIM No. 522

would have been contrary to that strategy because the expanded instruction would have

focused the jury on using the heat of passion theory to reach a verdict of second degree

murder rather than to reach a verdict of voluntary manslaughter.

       As we will reverse on the ground of ineffective assistance of counsel " 'only if the

record on appeal affirmatively discloses that counsel had no rational tactical purpose for

his act or omission' " (People v. Zapien (1993) 4 Cal.4th 929, 980), and defense counsel

may have made a reasonable tactical decision to omit CALCRIM No. 522, we conclude

that Garcia has failed to establish a ground for reversal.14




14   Because we have rejected each of Garcia's claims of error, we also reject Garcia's
argument that any errors were cumulatively prejudicial.
                                             18
                                 DISPOSITION

     The judgment is affirmed.



                                               IRION, J.

WE CONCUR:



HUFFMAN, Acting P. J.



O'ROURKE, J.




                                     19
