Filed 12/12/08 P. v. Chiu CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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THE COURT:

It is ordered that the opinion filed herein on November 12, 2008, be modified as follows:

1. On line 3 of page 21 of the opinion, delete footnote 22.

2. On line 3 of page 21 of the opinion, following the sentence that reads (People v. Barton (1995) 12 Cal.4th 186, 195, 201 (Barton).) insert the following:

The People invoke the doctrine of invited error both in their original brief and in a petition for rehearing. Under this doctrine, if a court accedes to a defense objection to an instruction on a lesser offense, a defendant is foreclosed on appeal from raising the issue of instructional error. (Barton, supra, 12 Cal.4th at p.198.) It does not apply in the present case.

We may employ the doctrine only where the record allows us to impute^[22]to defense counsel an exercise of reasoned tactics rather than ignorance or mistake in taking a deliberate action, without our seizing upon some mere conceivable tactical purpose that was not in fact a part of defense counsels considerations. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49; People v. Boyette (2002) 29 Cal.4th 381, 438; People v. Bunyard (1988) 45 Cal.3d 1189, 1234; People v. Wickersham (1982) 32 Cal.3d 307, 333-334.)

In the present case, the discussion of any instructions on self-defense occurred only in the context of the misdemeanors that served as the prosecutions target offenses for liability for murder as a consequential offense, and only in cursory fashion with regard to the exercise of reasonable self-defense without any indication of the particular conduct of defendant Chiu to which it applied. On this record, we cannot necessarily discern a reasoned basis for defense counsel to refuse instructions on unreasonable self-defense in the context of derivative liability for directly encouraging the shooting of the victim.

The People posit an obvious tactic on defense counsels part of desiring not to offer contradictory defenses that would run counter to defendant Chius testimony (and the criticisms in closing argument of Joshuas credibility) on the question of whether defendant Chiu ever requested someone to get a gun. But defense counsel in fact admitted the possibility--in the course of his attack on Joshuas credibility--that the jury could reject these arguments, and that this would establish a fact significantly detrimental to defendant Chiu. In light of this admitted potential for the jurys acceptance of the adverse testimony, this was not a situation in which there was a lack of evidence of any lesser offense such that we could necessarily attribute a rational tactic on defense counsels part in seeking to force the jury only to the choices of acquittal or conviction on the greater offense. Nor would merely omitting the theory of imperfect self-defense somehow constrain the jury from giving credence to Joshua. In short, we cannot comfortably conclude that defense counsels focus on the theory of his case did not lead him simply to overlook this nuance in a factually and legally complex set of circumstances. (See Wickersham, supra, 32 Cal.3d at p. 334.)

As a result, we must reverse for this instructional error that flows from the trial courts ever-increasing pivotal role as the guarantor of last resort of an accurately instructed jury. (See Wickersham, supra, 32 Cal.3d at p. 333.)

3. On page 21 of the document, delete the footnote text in footnote 23 and replace it with the following:

We do not exercise the option of reducing the conviction to the lesser offense and affirming the judgment as to defendant Chiu, given the drastic reduction in his prison term that would result and the absence of any request from the People to this effect in their petition for rehearing.

This modification does not change the judgment.

Respondents petition for rehearing is denied.

BY THE COURT:

BLEASE , Acting P. J.

DAVIS , J.

HULL, J.

^[22] The record, of course, may also include defense counsels express articulation of the reasoning for the choice of action challenged on appeal.