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Voluntary manslaughter is an unlawful killing of a human being without malice upon a sudden quarrel or heat of passion, as provided in Pen. Code, § 192, subd. (a). Although § 192, subd. (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. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim, or be conduct reasonably believed by the defendant to have been engaged in by the victim. The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. The test for adequate provocation is objective.
Abimael Flores Najera fatally stabbed the victim after the victim called Najer a "jota," which was translated at trial to mean "faggot." The prosecutor misstated the law of murder and voluntary manslaughter several times during closing argument and rebuttal. Najer’s counsel failed to object. The jury convicted Najera of second degree murder, and the trial court sentenced him to an indeterminate term of 15 years to life. Najera contended that the conviction for second degree murder should be reduced to voluntary manslaughter (Pen. Code, § 192, subd. (a)) on several grounds. Most significantly, he contended that the prosecutor committed misconduct by misstating the law of murder and voluntary manslaughter during closing argument and rebuttal. Najera contended that his trial counsel was ineffective by failing to object to the misconduct and to request admonitions.
Did Najera receive ineffective assistance of counsel?
The court, in affirming, stated that Najera did not receive ineffective assistance of counsel because Najera was not entitled to a manslaughter instruction. Voluntary manslaughter, as defined in Pen. Code, § 192, subd. (a), was the unlawful killing of a person without malice upon a sudden quarrel or heat of passion. The sudden quarrel or heat of passion had to be provoked by the victim's conduct or by conduct that Najera reasonably believed to be that of the victim. Because the victim's name-calling was insufficient to cause an average person to lose reason and judgment under an objective standard, defense counsel's failure to object to the prosecutor's misconduct did not cause Najera to suffer any prejudice. The trial court did not err in excluding Najera’s statement under Evid. Code, § 352. The order of the instructions did not mislead the jury. There was no cumulative error.