Filed 7/11/14




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                      DIVISION THREE




THE PEOPLE,

    Plaintiff and Respondent,                         G049626

        v.                                            (Super. Ct. No. SWF10001639)

ERIC DAYSHAWN SPEIGHT,                                OPINION

    Defendant and Appellant.



                  Appeal from a judgment of the Superior Court of Riverside County,
Albert J. Wojcik, Judge. Affirmed in part, reversed in part, and remanded for
resentencing.
                  Thomas Owen, under appointment by the Court of Appeal, for Defendant
and Appellant.
                  Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and
Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
             Eric Dayshawn Speight appeals from a judgment after a jury convicted him
of two counts of premeditated, willful, and deliberate attempted murder and found true
various enhancements. Speight argues the following: (1) the prosecutor committed
prejudicial misconduct when she misstated the law concerning homicide and the error
was compounded by the trial court’s statements and omission of an instruction on the
interaction between attempted murder and attempted voluntary manslaughter; and (2) his
sentence was cruel and unusual punishment and he received ineffective assistance of
counsel when defense counsel failed to object to part of his sentence
             As we explain below, we agree the trial court erred in instructing the jury
but conclude Speight was not prejudiced. With respect to his sentencing claim, we
conclude defense counsel’s performance was deficient regarding sentencing. We affirm
the judgment, reverse Speight’s sentence, and remand the matter for a new sentencing
hearing.
                                         FACTS
             One evening in August 2010, Tonesha S. was at home in bed asleep with
her boyfriend Richard S. when her brother Michael S. woke them and said 17-year-old
Speight and a few other men had “jumped” him. Michael had visible injuries to his lip
and forehead. Over the course of the following week, Tonesha called Speight
approximately 60 times to learn why Speight hit Michael. Tonesha was very angry with
Speight and she grew angrier when he avoided her calls. Cherlyn S., Tonesha’s mother,
tried to speak with Speight’s mother concerning the incident without success.
             On the afternoon of August 13, 2010, Tonesha, Richard, and their friends,
Bryant/Brian W. and his girlfriend went to the mall where they saw Cherlyn, who had
Tonesha and Richard’s two children with her. Cherlyn told Tonesha that she was going
to speak with Speight’s mother. Tonesha was uncomfortable with Cherlyn taking
Tonesha’s children to speak with Speight’s mother so Tonesha and the others followed in
Tonesha’s car.

                                            2
             Cherlyn stopped her car in front of Speight’s residence, and Tonesha
stopped her car about eight houses away. Bryant got out of Tonesha’s car, walked to
Cherlyn’s car, and stood near the passenger door. Tonesha and Richard saw a woman,
later identified as Kacharelle Butler, Speight’s aunt, walk towards Cherlyn’s car and
speak with Cherlyn. When it appeared to Tonesha the conversation was becoming
confrontational, Butler was making hand gestures, she drove her car and parked behind
her mother’s car. Tonesha got out of her car and joined the conversation, which evolved
into an argument. Tonesha saw Speight and two men standing near the home’s front
door. Tonesha, who was very upset and frustrated, punched Butler on the face but did
not make solid contact.
             Tonesha saw Speight walking towards her with a gun, and Bryant lifted his
shirt and turned around to show Speight he was not armed. Richard grabbed Tonesha and
said they needed to leave quickly. Bryant said, “‘Hey, watch out, he [sic] got a gun,’”
and he ran away. Richard grabbed Tonesha’s hand and began to run away. Tonesha
heard a woman say to Speight, “’No, go back in the house, there’s no need for that.’”
Tonesha broke away from Richard and ran towards her car. Richard saw Speight shoot
the gun in Bryant’s direction but Bryant had turned the corner.
             As Tonesha ran away, she heard the first shot. Speight chased her and
when he got near her, he slowed down, aimed the gun at her, and fired. Tonesha heard a
second shot “[a]nd it dropped [her] instantly.” Tonesha, who was shot in the back, was
lying face down on the ground. As Richard ran to Tonesha, Speight pointed the gun at
Tonesha, and Richard said, “‘She’s already dead, why are you still shooting?’” Speight
pointed the gun at Richard and shot him in the left shoulder. As Richard tried to pick up
Tonesha, Speight shot Tonesha again, this time in the right shoulder.
             Richard and Tonesha fled to a nearby home where they tried to get help.
After Richard had Tonesha sit on the porch and he rang the doorbell, Richard walked
away. Speight followed Richard, and Richard asked him what he was doing. Speight

                                            3
pointed the gun at Richard and pulled the trigger, but there were no more bullets. It
appeared to Richard that Speight smirked before he ran home. As Richard put Tonesha
in Cherlyn’s car, Richard saw Speight and the other man get into a car and drive away.
Cherlyn drove away and flagged down an ambulance, which took Tonesha to the
hospital; she suffered from critical injuries. Emergency personnel responded and
transported Richard by helicopter to the hospital; his injury was superficial. Two years
after the shooting Tonesha still suffered from a loss of mobility and sensation to her left
arm. She had undergone one surgery and expected at least one more.
                 An amended information charged Speight with three counts of willful
premeditated and deliberate attempted murder (Pen. Code, §§ 664, 187, subd. (a))1
(count 1-Tonesha, count 2-Richard & count 3-Bryant). As to count 1, the information
alleged Speight inflicted great bodily injury causing Tonesha to be comatose or suffer
paralysis (§ 12022.7, subd. (b)). With respect to counts 1 and 2, the information alleged
Speight personally discharged a firearm and caused great bodily injury (§§ 12022.53,
subd. (d), 1192.7, subd. (c)(8)), and as to count 3, he personally discharged a firearm
(§§ 12022.53, subd. (c), 1192.7, subd. (c)(8)). Finally, the information alleged Speight
was 16 years of age or older at the time of the offenses (Welf. & Inst. Code, § 707,
subd. (d)(1)).
                 At trial, the prosecutor offered Tonesha’s testimony as described above.
Additionally, Tonesha denied threatening Speight during any of her numerous telephone
calls. She claimed neither she nor anyone else in her car had any weapons. She denied
ever trying to run into the house. On cross-examination, Tonesha denied she threatened
Speight during any of her telephone calls. She also denied being at Speight’s house
before the day of the incident or throwing a rock through his window. And Tonesha
denied she threatened Speight when she saw him standing on the front porch before she

1                All further statutory references are to the Penal Code.


                                                4
hit Butler. Tonesha claimed she saw that Speight was armed before she hit Butler. She
claimed Bryant did not threaten anyone when he walked to the house. On redirect
examination, Tonesha stated she saw Speight had a gun after she hit Butler. On
recross-examination, Tonesha was unsure whether Speight came out of the house with
the gun before or after she hit Butler.
              Butler testified for the prosecution. She explained that when Cherlyn
stopped her car, there was a man walking towards the house. Butler stated that as she
spoke with Cherlyn, the man approached Speight and tried to instigate a fight. She said
Speight went inside to get his “fighting gloves” and went back outside. She said Speight
went back inside and returned with a gun. Butler testified she asked Speight what he was
doing and told him to put the gun away. She said the man sat in the car and shielded
himself with the door. She claimed Speight put the gun back in the house. Butler said
another car pulled up and a woman, Tonesha, got out of the car and tried to run into the
house but when Butler told her the person that she was looking for was not in the house,
the girl who told Speight that Michael had called her a derogatory name, Tonesha walked
towards Butler and hit her. She stated there were two men who put their hands up like
they wanted to fight her. She said that when Speight came back outside, he had the gun
and told them to get away from his aunt and Butler went inside.
              Thomas Chapman-Wright, an investigator with the Riverside
Public Defender, testified he interviewed Butler telephonically after the incident. Butler
told him that not only did Tonesha hit her, two men approached her with raised fists as if
they were going to attack her and she was scared. Butler told him that Speight appeared
with a gun and she told him to put it away. She thought the man in the car had a weapon.
              Cherlyn testified for the prosecution. She explained that after Tonesha tried
to hit Butler, she got out of her car to restrain Tonesha. She denied that anyone else,
Richard or Bryant, threatened Butler or that they raised their fists. And she stated no one



                                             5
had any weapons except Speight. On cross-examination, Cherlyn denied Tonesha tried to
go into Speight’s house or that Bryant challenged Speight to fight.
               Richard testified concerning the incident as we describe above. He claimed
no one in his party had any weapons. He stated neither he nor Bryant ever said anything
to Butler or raised their fists to her.
               Speight testified on his own behalf. He admitted that three or four days
before the shooting he punched Michael in the face because he had disrespected a girl
they both knew by calling her derogatory names. Speight claimed he then went home.
At home, a mutual friend of Speight and Michael called and said Michael’s sister and
boyfriend were looking for Speight because they believed he was involved in Michael
being “jumped.” A few minutes later, a woman called Speight and asked him to come
outside and fight Michael. Speight went outside and saw a car with a woman and man
who he later learned were Tonesha and Richard. Speight told them he was not part of the
group that assaulted Michael. At some point, Richard called Speight a “crab,” a
disrespectful name for a “Crip” gang member. After Speight denied he was a gang
member, he asked Richard where he was from and Richard replied, “Eastside
Bounty Hunter Watts.” Speight was scared because he believed that to be a violent,
retaliatory faction of the Bloods. Speight asked Richard his gang name, and Richard
answered, “‘Chaos.’” Tonesha insisted Speight was involved in the attack on her brother,
and Richard tried to hit Speight but missed. They left, and Speight went inside. About
10 minutes later, Speight was on the telephone when he heard pounding on the door and
30 seconds later a loud crash; someone had thrown a brick through the window.
Throughout the night Tonesha called Speight a few times and during one of the calls she
threatened him and told him to come outside and fight Michael.
               Speight stated that two days later Tonesha called and threatened everyone
in his house. A few minutes later Tonesha called and threatened to kill everyone in his
house unless Speight came outside and fought Michael. Speight described his level of

                                             6
fear as a seven on a scale of one to 10. Speight admitted that the following day, his
cousin, Mica Caruso, brought him a gun despite Speight’s insistence he did not need it.
              On the afternoon of the incident, Speight was at home with his brother
Cordell Edwards, his aunt Butler and her two children, and friends Janae Young,
Elton Satterwhite, Derrick Kendrick, and Erica Johnson. Speight said a man called him
and told him to come outside and fight. Speight told Edwards, Satterwhite, and Kendrick
they, Tonesha and Richard, were there and he put on his “fighting gloves.” Speight
testified he was scared and he and Edwards went upstairs where they looked out the
window and saw a man walking towards the house and a car driving slowly. They went
downstairs, looked out the front door, and saw Butler was outside. Butler was talking to
the car’s female driver, and a man stood in front of the car. The man was angrily yelling
at Speight to come outside and fight because he hit Michael. Speight went upstairs and
got the gun because he claimed he intended to scare them away. Speight stood at the
front door holding the gun. The man told Speight he did not have a gun, lifted his shirt,
and spun around, and Butler told Speight to put the gun away. Speight set the gun inside
the front door. After the man told Speight to come outside and fight, Speight said he
would and asked where Michael was. The man replied, “‘It’s too late for that. I got
something for you.’” Speight claimed the man made a hand gesture simulating a gun.
Speight thought he had a gun and described his fear level as a 10. Speight said he would
come outside and guns were unnecessary. The man turned and walked towards the car.
Speight claimed he thought the man was going to the car to get a gun. As Speight went
inside to get the gun, he heard Satterwhite yell that they were “jumping” Butler who was
standing near Tonesha and Richard. Speight said he ran outside and started shooting. He
claimed he did not intend to shoot anyone and he only tried to scare them. Speight also
claimed he did not remember anything between the first shot and the last shot because he
blacked out. Speight described at length that he suffers from black outs when he is afraid



                                             7
and it has happened many times. Speight repeated he did not intend to kill anyone. He
remembered his hands were shaking and he denied grinning at anyone.
              On cross-examination, Speight testified that when Tonesha and Richard ran
towards the car he still considered them a threat because he believed they could have
been going to the car to get a gun. Speight admitted he fled the scene, had someone cut
his hair, and changed his clothes to alter his appearance. On redirect examination,
Speight testified he was afraid and felt provoked because they came to his house, made
the telephone calls, broke his window, tried to get him to go outside and fight, and acted
as if they had guns.
              Speight offered the following testimony in his defense. Lynette Edwards,
Speight’s mother, testified that one night a few days before the shooting, she was asleep
when someone threw a rock through her front window. She yelled at Speight to fix the
window. She did not call the police because it was late, she was tired, and she had to go
to work the next morning. She stated Speight can become so angry and afraid he does
not realize what he is doing or saying. Mica Caruso testified he spoke with Speight a few
days before the shooting. Speight described to Caruso an incident that frightened
Speight. Caruso, without any prompting from Speight, purchased an illegal gun and gave
it to Speight. Speight’s girlfriend, Young, testified a man tried to instigate a fight with
Speight. She claimed Tonesha tried to run into the house. On rebuttal, Richard testified
that before the shooting, he did not know where Speight lived and he had not confronted
him.
              During a hearing on the jury instructions, there was a discussion concerning
the voluntary manslaughter instruction. Speight’s defense counsel inquired whether the
prosecutor and the trial court agreed the prosecutor was required to prove beyond a
reasonable doubt Speight was not acting as a result of sudden quarrel or “incorrect
self-defense.” The prosecutor agreed and indicated she thought it was addressed.
Counsel replied it was addressed in CALCRIM but was not sure if it was addressed in

                                              8
CALJIC. The parties discussed where the instruction would be located in CALJIC. After
the court inquired about counsel’s concern, counsel explained the prosecutor had the
affirmative burden of proving Speight did not act in the heat of passion or imperfect
self-defense. The court stated it was undoubtedly the prosecutor’s burden but it was
unaware of any CALJIC instruction that made it a requirement and was unsure if one was
necessary. Counsel distinguished the situation where the jury acquits on the charged
offense and proceeds with the lesser included offenses and this situation where the
prosecutor was required to prove “the lessers in order to” establish the charged offense.
Counsel added, “You can’t instruct the jury that they don’t need to consider involuntary
manslaughter only when they find him not guilty of attempt[ed] murder, they have to
consider that along with [it].” Counsel argued the proposed instructions did not make
that clear to the jury and it lowered the prosecution’s burden of proof because it removed
that issue from the jury. The court stated CALJIC No. 2.90’s general instruction on
burden of proof and reasonable doubt adequately covered counsel’s concern. The court
added: “It almost seems like you’re saying before she gets to the attempted voluntary
manslaughter, it’s her burden of proof to establish he’s not guilty of attempted murder.
That’s nonsensical. [¶] . . . [¶] You could put in it’s her duty to prove beyond a
reasonable doubt that he is guilty of the charged crimes and he is guilty of the lesser
included offenses. It’s her burden. It’s her burden. It’s her burden.” Counsel stated it
was going to argue language taken directly from CALCRIM No. 603, that if the
prosecutor did not meet its burden of proving Speight did not act with heat or passion or
in imperfect self-defense, the jury must acquit him of attempted murder. Counsel and the
court debated whether the proposed instructions adequately covered that principle. The
prosecutor did not object during the argument.
              As relevant here, the trial court instructed the jury with the following
instructions: CALJIC No. 8.66, Attempted Murder; CALJIC No. 8.11, Malice
Aforethought; CALJIC No. 8.67, Willful, Deliberate, and Premeditated Attempted

                                             9
Murder; CALJIC No. 8.41, Attempted Voluntary Manslaughter; CALJIC No. 8.42,2
Sudden Quarrel or Heat of Passion and Provocation; CALJIC No. 8.43, Murder or
Manslaughter Cooling Period; CALJIC No. 8.44, No Specific Emotion Alone Constitutes
Heat of Passion; CALJIC No. 5.50.1 Prior Threats and Assaults by Victim;
CALJIC No. 2.90, Presumption of Innocence--Reasonable Doubt--Burden of Proof;
CALJIC No. 1.00, Respective Duties of Judge and Jury; CALJIC No. 17.49, Use of
Multiple Verdict Forms; and CALJIC No. 17.10, Conviction of Lesser Included Offense.
The court did not instruct the jury on the issue of the prosecution’s burden to prove
beyond a reasonable doubt an absence of heat of passion.
              During closing argument, as relevant here, defense counsel argued
Tonesha, Richard, and Cherlyn were biased because all were angry at Speight and they
sanitized and minimized their own conduct. Counsel argued Tonesha and Richard


2              Because CALJIC No. 8.42 explains provocation and heat of passion we
provide its text in full: “To reduce an unlawful attempted killing from attempted murder
to attempted manslaughter upon the ground of sudden quarrel or heat of passion, the
provocation must be of the character and degree as naturally would excite and arouse the
passion, and the assailant must act under the influence of that sudden quarrel or heat of
passion. [¶] The heat of passion which will reduce attempted homicide to attempted
manslaughter must be such a passion as naturally would be aroused in the mind of an
ordinarily reasonable person in the same circumstances. A defendant is not permitted to
set up [his] own standard of conduct and to justify or excuse [himself] because [his]
passions were aroused unless the circumstances in which the defendant was placed and
the facts that confronted [him] were such as also would have aroused the passion of the
ordinarily reasonable person faced with the same situation. Legally adequate provocation
may occur in a short, or over a considerable, period of time. [¶] The question to be
answered is whether or not, at the time of the attempted killing, the reason of the accused
was obscured or disturbed by passion to such an extent as would cause the ordinarily
reasonable person of average disposition to act rashly and without deliberation and
reflection, and from passion rather than judgment. [¶] If there was provocation, whether
of short or long duration, but of a nature not normally sufficient to arouse passion, or if
sufficient time elapsed between the provocation and the fatal blow for passion to subside
and reason to return, and if an unlawful attempted killing of a human being followed the
provocation and had all the elements of attempted murder, as I have defined it, the mere
fact of slight or remote provocation will not reduce the offense to manslaughter.”

                                            10
repeatedly threatened Michael to the point where Caruso, who was a gang member and
knowledgeable about gangs, obtained a gun for Michael to protect himself. Counsel
contended Speight was not guilty of attempted murder because he did not intend to kill
Tonesha or Richard. After detailing the numerous threats, counsel argued Speight was
provoked and he acted under the heat of passion. Counsel argued the prosecutor had to
prove “there was either insufficient provocation or that the provocation never happened.”
Counsel made the same argument regarding imperfect self-defense. Counsel concluded
Speight did not intend to kill anyone.
              During rebuttal argument, as relevant here, the prosecutor argued: “Talked
about heat of passion. Now, what’s critical here -- and let me go back. In order to get to
voluntary manslaughter, which I would suggest is not the option in this case, but in order
to get to voluntary manslaughter, you would all have to agree that [Speight], when he
chased after the victims and they are running for their lives and he shot them, you would
have to all find him not guilty of attempted murder.” Defense counsel objected the
prosecutor misstated the law. The court stated: “That’s when you get to it. You don’t
get to the attempted voluntary manslaughter unless there’s a unanimous finding of not
guilty to the attempt[ed] murder on any specific count. The jury instruction is
[CALJIC No.] 17[.]49 or [CALJIC No.] 17[.]10 addressed that. But that’s the law.”
Counsel began to say, “The law is [the prosecutor]” when the court interrupted and said,
“No, [c]ounsel, I said what the law is. If, in fact, the jurors believe there’s some
confusion or dispute regarding the law, you follow the law in the jury instructions, not
what anyone -- not what the attorneys tell you. [¶] You may proceed.” The prosecutor
continued with her rebuttal: “In order for you to get to even the lesser, which is voluntary
manslaughter -- it’s a lesser necessary included offense -- you would have to all agree
that [Speight] is not guilty, or in addition to that, you would have to agree that the
defense of heat of passion or the defense of he reasonably was in fear for his life, an



                                              11
actual but unreasonable, you have to find that in order for you to even get down to
voluntary manslaughter.”
              The jury convicted Speight of counts 1 and 2 and found true the
accompanying enhancements, including that he was 16 years of age or older at the time
of the offenses. The jury acquitted him of count 3 concerning Bryant.
              The trial court sentenced 19-year-old Speight to prison as follows: count 1-
an indeterminate term of seven years to life plus 25 years to life for discharging a firearm
plus a five year determinate term for inflicting great bodily injury; and count 2-an
indeterminate term of seven years to life plus 25 years to life for discharging a firearm.
The court ordered the sentences on counts 1 and 2 to run consecutively because there
were two victims. Thus, the court sentenced Speight to prison for a determinate term of
five years plus 64 years to life.
                                       DISCUSSION
I. Jury Instructions
              Speight argues the prosecutor committed misconduct during rebuttal
argument when she discussed the interaction between attempted murder and attempted
voluntary manslaughter and the trial court “reinforced the misstatement by agreeing” the
prosecutor’s statement was legally correct. Noting the trial court instructed the jury with
CALJIC and not CALCRIM, Speight adds the court erred in failing to instruct the jury
sua sponte the prosecution had the burden to prove beyond a reasonable doubt that
Speight did not act as a result of heat of passion. Speight does not spend much time
explaining how the court erred in failing to instruct the jury on that point. Instead,
Speight asserts the alleged instructional error compounded the prejudice caused by the
prosecutor’s and the court’s misstatements to the jury.
              The Attorney General first asserts the prosecutor did not misstate the law.
Recognizing CALJIC No. 8.50 is a correct statement of law that would have provided the
jury with the language Speight asserts was improperly omitted, the Attorney General

                                             12
nevertheless contends there was no prejudicial instructional error. The Attorney General
claims the other instructions properly informed the jury that to convict Speight of murder,
the prosecution had to prove beyond a reasonable doubt Speight acted with malice
aforethought, which necessarily meant the prosecution had to prove beyond a reasonable
doubt Speight did not act as a result of heat of passion. As we explain below, we agree
the trial court erred in failing to instruct the jury sua sponte with CALJIC No. 8.50.
              Attempted murder requires a direct but ineffectual act towards killing a
person and the person harbored express malice aforethought. (People v. Houston (2012)
54 Cal.4th 1186, 1217.) Attempted voluntary manslaughter is the unlawful killing of a
person without malice. (People v. Avila (2009) 46 Cal.4th 680, 705.) Attempted
voluntary manslaughter is a lesser included offense of attempted murder. (People v.
Beltran (2013) 56 Cal.4th 935, 942 (Beltran).)
              “The mens rea element required for murder is a state of mind constituting
either express or implied malice. A person who kills without malice does not commit
murder. Heat of passion is a mental state that precludes the formation of malice and
reduces an unlawful killing from murder to manslaughter. Heat of passion arises if, ‘“at
the time of the killing, the reason of the accused was obscured or disturbed by passion to
such an extent as would cause the ordinarily reasonable person of average disposition to
act rashly and without deliberation and reflection, and from such passion rather than from
judgment.”’ [Citation.] Heat of passion, then, is a state of mind caused by legally
sufficient provocation that causes a person to act, not out of rational thought but out of
unconsidered reaction to the provocation. While some measure of thought is required to
form either an intent to kill or a conscious disregard for human life, a person who acts
without reflection in response to adequate provocation does not act with malice.”
(Beltran, supra, 56 Cal.4th at p. 942, fn. omitted.)
              This authority establishes that to prove the defendant guilty of attempted
murder, the prosecution must prove beyond a reasonable doubt among other things, the

                                             13
defendant acted with malice aforethought. To determine whether the defendant acted
with malice aforethought, the prosecution must prove beyond a reasonable doubt, where
heat of passion is at issue based on the state of the evidence, the defendant did not act as a
result of heat of passion. Assuming the prosecution met its burden on this element, and
attempted murder’s other elements, the defendant is guilty of attempted murder. If,
however, the prosecution fails to establish beyond a reasonable doubt the defendant did
not act as a result of heat of passion, the prosecution fails its burden and the defendant is
guilty of attempted voluntary manslaughter. (People v. Rios (2000) 23 Cal.4th 450, 461
(Rios) [mitigating circumstance of heat of passion “reduce[s] an intentional, unlawful
killing from murder to voluntary manslaughter ‘by negating the element of malice that
otherwise inheres in such a homicide’”].) Thus, when attempted murder and attempted
voluntary manslaughter—heat of passion are before the jury, there is interaction between
the two offenses.
              Speight relies on this interaction to argue “[t]he prosecutor misstated the
law when she stated that in order to even consider the lesser included offense of
attempted voluntary manslaughter, the members of the jury had to first find [him] not
guilty of attempted murder.” It is of course improper for the prosecutor to misstate the
law and particularly to absolve the prosecution from proving beyond a reasonable doubt
all elements of a charged offense. (People v. Marshall (1996) 13 Cal.4th 799, 831.) We
do not, however, read the prosecutor’s statements to forbid the jury from considering
attempted voluntary manslaughter until they concluded he was not guilty of attempted
murder. Nor do we read her statements as an attempt to somehow lessen her burden of
proof. Read in their totality, we conclude the prosecutor simply informed the jury that to
convict Speight of attempted voluntary manslaughter it had to first conclude he was not
guilty of attempted murder.




                                              14
              Additionally, the trial court properly instructed the jury with
CALJIC No. 17.10 concerning how the jury should approach deliberations on lesser
included offenses and that it could not accept a verdict on a lesser crime until the jury
acquitted on the charged crime, and CALJIC No. 17.49, concerning how the jury was to
complete the verdict forms. The jury had a written copy of all the instructions during
deliberations. It is well settled that if anything counsel says during argument conflicts
with the trial court’s jury instructions, the jury must follow the court’s instructions.
(People v. Sisneros (2009) 174 Cal.App.4th 142, 152-153.) The trial court here
instructed the jury with that legal requirement and any misstatement was remedied by the
court’s instructions. (CALJIC No. 1.00.) We turn now to Speight’s claim the trial court
erred in instructing the jury.
              “[W]here the defendant killed intentionally and unlawfully, evidence of
heat of passion, or of an actual, though unreasonable, belief in the need for self-defense,
is relevant only to determine whether malice has been established, thus allowing a
conviction of murder, or has not been established, thus precluding a murder conviction
and limiting the crime to the lesser included offense of voluntary manslaughter. Indeed,
in a murder case, unless the People’s own evidence suggests that the killing may have
been provoked or in honest response to perceived danger, it is the defendant’s obligation
to proffer some showing on these issues sufficient to raise a reasonable doubt of his guilt
of murder. [Citations.] [¶] If the issue of provocation or imperfect self-defense is thus
‘properly presented’ in a murder case (Mullaney v. Wilbur (1975) 421 U.S. 684, 704 . . .
[(Mullaney)]), the People must prove beyond reasonable doubt that these circumstances
were lacking in order to establish the murder element of malice. [Citations.] California’s
standard jury instructions have long so provided. [Citation.] In such cases, if the fact
finder determines the killing was intentional and unlawful, but is not persuaded beyond
reasonable doubt that provocation (or imperfect self-defense) was absent, it should acquit



                                              15
the defendant of murder and convict him of voluntary manslaughter. [Citations.]” (Rios,
supra, 23 Cal.4th at p. 462.)
               “Of course, in a murder trial, the court, on its own motion, must fully
instruct on every theory of a lesser included offense, such as voluntary manslaughter, that
is supported by the evidence. [Citation.] Hence, where the evidence warrants, a murder
jury must hear that provocation or imperfect self-defense negates the malice necessary for
murder and reduces the offense to voluntary manslaughter.” (Rios, supra, 23 Cal.4th at
p. 463, fn. 10.)
               As relevant here, the trial court instructed the jury that to convict Speight of
attempted murder, it had to find he acted with express malice aforethought
(CALJIC No. 8.66) as defined (CALJIC No. 8.11). The court also instructed the jury
with CALJIC No. 8.67, Willful, Deliberate, and Premeditated Attempted Murder. That
instruction, after providing the definitions for “‘willful,’” “‘deliberate,’” and
“‘premeditated,’” provides, “If you find that the attempted murder was preceded and
accompanied by a clear, deliberate intent to kill, which was the result of deliberation and
premeditation, so that it must have been formed upon pre-existing reflection and not
under a sudden heat of passion or other condition precluding the idea of deliberation, it
is attempt to commit willful, deliberate, and premeditated murder.” (Italics added.) The
instruction also provided, “The People have the burden of proving the truth of this
allegation. If you have a reasonable doubt that it is true, you must find it to be not true.”
               The trial court instructed the jury on attempted voluntary manslaughter with
CALJIC No. 8.41, as follows: “Every person who unlawfully attempts [without malice
aforethought] to kill another human being is guilty of the crime of attempted voluntary
manslaughter in violation of sections 664 and 192, subdivision (a) . . ., a crime. [¶]
Voluntary manslaughter is the unlawful killing of a human being [without malice
aforethought]. [¶] [There is no malice aforethought if the [attempted killing] occurred
[upon a sudden quarrel or heat of passion] [or] [in the actual but unreasonable belief in

                                              16
the necessity to defend [oneself] [or] [another person] against imminent peril to life or
great bodily injury].] [¶] In order to prove this crime, each of the following elements
must be proved: [¶] 1. A direct but ineffectual act was done by one person towards
killing another human being; [and] [¶] 2. That person had the specific intent to kill
another person . . . [; and] [¶] [3. The actions taken to kill were unlawful.] [¶] In
deciding whether a direct but ineffectual act was committed, it is necessary to distinguish
between mere preparation, on the one hand, and the actual commencement of the doing
of the criminal deed, on the other. Mere preparation, which may consist of planning the
killing or devising, obtaining or arranging the means for its commission, is not sufficient
to constitute an attempt. However, acts of a person who intends to kill another person
will constitute an attempt where those acts clearly indicate a certain, unambiguous intent
to kill. The acts must be an immediate step in the present execution of the killing, the
progress of which would be completed unless interrupted by some circumstances not
intended in the original design. [¶] [An attempt to kill is lawful if done in lawful
[self-defense] [or] [defense of others].]”
              Here, the trial court properly instructed the jury on the lesser included
offense of attempted voluntary manslaughter. However, the court did not instruct the
jury the prosecution had to prove beyond a reasonable doubt that Speight did not act as a
result of heat of passion. That was error.
              The Attorney General does not dispute, and we agree, the record includes
sufficient evidence from which the jury could reasonably conclude Speight was provoked
and he acted as a result of heat of passion. Tonesha admitted she called Speight 60 times
over the course of about four days, conduct that cannot be described as anything but
harassing. Speight testified that during at least two of those telephone calls, Tonesha
threatened to kill everyone in his house. He also testified that a few days before the
incident, Tonesha and Richard went to his house where Richard tried to hit him. On that
occasion, Richard told Speight that he was a member of a Bloods gang Speight believed

                                             17
to be particularly violent. Later that night, someone threw a brick through Speight’s
window. Speight’s mother’s testimony corroborated the vandalism to her home. Speight
repeatedly testified he was scared because he believed Richard was a gang member.
              On the day of the incident, Speight stated there was a man outside his house
angrily yelling at him to come outside and fight. Speight stated the man made a gesture
with his hand simulating a gun and when the man turned and walked towards his car,
Speight thought the man was getting a gun from his car. Speight stated that when he
went inside to get his gun, he heard his friend yell they were jumping Butler, his aunt.
Speight explained he went outside and started firing his gun with the intent to scare them
and he blacked out as he had in the past when he becomes scared. Without expressing
any opinion on the likelihood of success of this defense, the record certainly includes
sufficient evidence that could support Speight’s claim he was provoked and acted as a
result of heat of passion. Thus, the trial court properly instructed the jury with CALJIC
No. 8.41. (People v. Gutierrez (2003) 112 Cal.App.4th 704, 708-709 [victim must cause
provocation and provocation caused ordinary person to act rashly or without due caution
and circumspection].) But the trial court fell short in its duty to instruct the jury
completely on this theory.
              CALJIC No. 8.50 in relevant part provides: “The distinction between
murder . . . and manslaughter is that murder . . . requires malice while manslaughter does
not. [¶] When the act causing the death, though unlawful, is done [in the heat of passion
or is excited by a sudden quarrel that amounts to adequate provocation,] [or] [in the
actual but unreasonable belief in the necessity to defend against imminent peril to life or
great bodily injury,] the offense is manslaughter. In that case, even if an intent to kill
exists, the law is that malice, which is an essential element of murder, is absent. [¶] To
establish that a killing is murder . . . and not manslaughter, the burden is on the People
to prove beyond a reasonable doubt each of the elements of murder and that the act
which caused the death was not done [in the heat of passion or upon a sudden quarrel]

                                              18
[or] [in the actual, even though unreasonable, belief in the necessity to defend against
imminent peril to life or great bodily injury].”3 (Italics added.)
               Thus, the trial court erred in failing to instruct the jury sua sponte with
CALJIC No. 8.50, that the prosecution was required to prove beyond a reasonable doubt
that Speight did not act as a result of heat of passion. We conclude, however, Speight
was not prejudiced because the instructional error was harmless even under the
heightened federal constitutional standard articulated in Chapman v. California (1967)
386 U.S. 18, 24.
               In People v. Wharton (1991) 53 Cal.3d 522, 569 (Wharton), the trial court
rejected defendant’s proposed special instruction on provocation and heat of passion
because a portion of it was an incorrect statement of law and other portions were covered
in other instructions. The California Supreme Court stated: “Finally, although the jury
was not directly instructed that provocation could occur over a ‘considerable period of
time,’ the jury was instructed that a killing is first degree murder if it is ‘the result of
deliberation and premeditation, so that it must have been formed upon pre-existing
reflection and not upon sudden heat of passion.’ (See CALJIC No. 8.20.) By finding
defendant was guilty of first degree murder, the jury necessarily found defendant
premeditated and deliberated the killing. This state of mind, involving planning and
deliberate action, is manifestly inconsistent with having acted under the heat of passion—
even if that state of mind was achieved after a considerable period of provocatory
conduct—and clearly demonstrates that defendant was not prejudiced by the failure to
give his requested instruction.” (Wharton, supra, 53 Cal.3d at p. 572; People v. Mincey


3             We note the CALCRIM instruction concerning attempted voluntary
manslaughter, heat of passion, CALCRIM No. 603, includes this requirement. It states:
“The People have the burden of proving beyond a reasonable doubt that the defendant
attempted to kill someone and was not acting as a result of a sudden quarrel or in the heat
of passion. If the People have not met this burden, you must find the defendant not guilty
of attempted murder.”

                                               19
(1992) 2 Cal.4th 408, 438 [when jury found torture murder special circumstance true
necessarily resolved against defendant factual questions on manslaughter].)
              Speight could not have been prejudiced by the trial court’s failure to
instruct the jury with CALJIC No. 8.50 because “the jury necessarily resolved the factual
question adversely” to him when it found him guilty of attempted murder. In instructing
the jury, the trial court stated that if the jury concluded Speight was guilty of attempted
murder, it then had to determine whether he committed the offenses willfully,
deliberately, and with premeditation. The court instructed the jury with
CALJIC No. 8.67, which properly and completely explained those principles. After
finding Speight guilty of two counts of attempted murder, the jury made the additional
finding he acted willfully, deliberately, and with premeditation. This state of mind,
involving planning and deliberate action, is manifestly inconsistent with having acted
under the heat of passion. Thus, we conclude the instructional error was harmless beyond
a reasonable doubt.
II. Cruel and Unusual Punishment
              Relying on Graham v. Florida (2010) 560 U.S. 48, 73 (Graham), and
People v. Caballero (2012) 55 Cal.4th 262 (Caballero), Speight argues his 69 years to
life sentence constitutes a de facto life sentence because he was a juvenile offender who
will not be eligible for parole until he is 88 years old, which is after his natural life
expectancy. He also argues the two 25-years-to-life firearm enhancements constitute
cruel and unusual punishment because the sentences were grossly disproportionate to the
facts of the case, and he received ineffective assistance of counsel because defense
counsel did not object to imposition of the enhancements.
              The Attorney General contends neither Graham nor Caballero are
controlling here. The Attorney General asserts the trial court did not sentence Speight to
life without the possibility of parole, and in fact he will be eligible for parole when he is
75 years and seven months old, an age within his life expectancy of 76 years. Based on

                                               20
the fact the trial court read and considered the probation report, the Attorney General
argues the court followed Cabellero and considered Speight’s age at the time of
sentencing. Recognizing however such a conclusion may require somewhat of a leap of
faith, the Attorney General adds that if we disagree, this court should vacate the sentence
and remand the matter for resentencing. As to Speight’s second contention, the
Attorney General contends that based on well-settled case authority, the sentence on the
firearm enhancements was not cruel and unusual punishment, and thus defense counsel
was not ineffective for failing to interject a futile objection.
              Speight responds that even if his first parole hearing is when he is 75 years
and seven months old, his sentence is the functional equivalent of a life sentence. He also
states imposition of the 25-year firearm enhancements was cruel and unusual punishment
because they were grossly disproportionate to the offender and the offense and defense
counsel provided deficient performance because of the facts of the case.
              Although the Attorney General limits his forfeiture argument to the firearm
enhancements, based on our review of the record we conclude Speight’s defense counsel
did not object on cruel and unusual punishment grounds as to any aspect of the sentence
either before the sentencing hearing by filing a sentencing brief or during the hearing.
Other than defense counsel’s objection to one of the aggravating circumstances, counsel
submitted at the hearing.
              A defendant’s failure to contemporaneously object his sentence constitutes
cruel and unusual punishment forfeits that claim on appellate review. (People v.
Gamache (2010) 48 Cal.4th 347, 403; People v. Mungia (2008) 44 Cal.4th 1101,
1140-1141; People v. Wallace (2008) 44 Cal.4th 1032, 1096; People v. Lewis and Oliver
(2006) 39 Cal.4th 970, 997; People v. Burgener (2003) 29 Cal.4th 833, 886-887; People
v. Vallejo (2013) 214 Cal.App.4th 1033, 1045; People v. Norman (2003) 109 Cal.App.4th
221, 229-230.) A claim a sentence is cruel and unusual is forfeited on appeal if it is not
raised in the trial court because the issue often requires a fact-bound inquiry. (People v.

                                               21
Russell (2010) 187 Cal.App.4th 981, 993 [type of issue that should be raised in trial court
because trial judge after hearing evidence in better position to evaluate mitigating
circumstances and determine their impact on constitutionality of sentence]; People v.
DeJesus (1995) 38 Cal.App.4th 1, 27; People v. Ross (1994) 28 Cal.App.4th 1151, 1157,
fn. 8.) Thus, Speight has forfeited his claims his sentence was cruel and unusual
punishment. That does not end our inquiry, however, as we must now address Speight’s
contention he received ineffective assistance of counsel. We conclude he did.
              “Under existing law, a defense attorney who fails to adequately understand
the available sentencing alternatives, promote their proper application, or pursue the most
advantageous disposition for his client may be found incompetent. [Citations.]” (People
v. Scott (1994) 9 Cal.4th 331, 351.) “A defendant claiming ineffective assistance of
counsel must satisfy Strickland’s [Strickland v. Washington (1984) 466 U.S. 668]
two-part test requiring a showing of counsel’s deficient performance and prejudice.
[Citation.] As to deficient performance, a defendant ‘must show that counsel’s
representation fell below an objective standard of reasonableness’ measured against
‘prevailing professional norms.’ [Citation.] ‘Judicial scrutiny of counsel’s performance
must be highly deferential,’ a court must evaluate counsel’s performance ‘from counsel’s
perspective at the time’ without ‘the distorting effects of hindsight,’ and ‘a court must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.’ [Citation.]” (People v. Jacobs (2013)
220 Cal.App.4th 67, 75.)
              In Caballero, supra, 55 Cal.4th at page 268, the California Supreme Court
held “sentencing a juvenile offender for a nonhomicide offense to a term of years with a
parole eligibility date that falls outside the juvenile offender’s natural life expectancy
constitutes cruel and unusual punishment in violation of the Eighth Amendment.” The
court specified that in future cases, “the sentencing court must consider all mitigating
circumstances attendant in the juvenile’s crime and life, including but not limited to his

                                              22
or her chronological age at the time of the crime, whether the juvenile offender was a
direct perpetrator or an aider and abettor, and his or her physical and mental
development, so that it can impose a time when the juvenile offender will be able to seek
parole from the parole board. The Board of Parole Hearings will then determine whether
the juvenile offender must be released from prison ‘based on demonstrated maturity and
rehabilitation.’ [Citation.]” (Id. at pp. 268-269.)
              The California Supreme Court filed its decision in Caballero on August 16,
2012. (Caballero, supra, 55 Cal.4th 262.) The sentencing hearing in this case was on
September 21, 2012. Although we give great deference to counsel’s performance,
counsel’s performance regarding sentencing was deficient. Again, defense counsel did
not raise the issue of cruel and unusual punishment either by motion or during the
sentencing hearing. Based on these lapses, we conclude defense counsel’s representation
fell below an objective standard of reasonableness concerning sentencing.
              We also conclude Speight was prejudiced by this error. Speight was a
juvenile when he committed the crime, he did not have any prior criminal history, and he
showed remorse at the sentencing hearing. These are just some of the mitigating factors a
trial court would consider when assessing a cruel and unusual punishment claim pursuant
to Caballero. Thus, Speight was certainly prejudiced by defense counsel’s failure to
object to his sentence based on cruel and unusual punishment grounds. Under these
circumstances it is appropriate for us to remand the case to the trial court for a new
sentencing hearing.4 (§ 1260.)




4              Although we need not reach the issue because we remand for a new
sentencing hearing, based on the Attorney General’s calculations, Speight would not be
eligible for parole until about five months before his natural life expectancy ends. Such a
sentence is a de facto life sentence.

                                             23
                                       DISPOSITION
              The convictions are affirmed, the sentence is reversed, and the matter
remanded to the trial court for a new sentencing hearing. In light of this disposition, the
clerk of this court is directed to give the required notice to the California State Bar and to
trial counsel. (Bus. & Prof. Code, § 6086.7; Cal. Rules of Court, rule 10.1017.)




                                                   O’LEARY, P. J.

WE CONCUR:



ARONSON, J.



THOMPSON, J.




                                              24
