Filed 8/31/26 P. v. Garcia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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, H053585
(Monterey County
Plaintiff and Respondent, Super. Ct. No. 24CR005001)
v.
MARIO THOMAS GARCIA,
Defendant and Appellant.
A jury convicted defendant Mario Thomas Garcia of second degree
murder (Pen. Code,1 § 187, subd. (a)) and related crimes for shooting a man
outside a bar in Salinas. The trial court sentenced Garcia to 55 years to life
in prison plus two years eight months.
On appeal, Garcia claims the trial court erred by failing to instruct the
jury sua sponte on voluntary manslaughter due to heat of passion and,
alternatively, Garcia’s defense counsel was prejudicially ineffective for failing
to request that jury instruction.
For the reasons explained below, we affirm the judgment.
1 All further unspecified statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural History
In July 2025, the Monterey County District Attorney filed a second
amended information (information) charging Garcia with the first degree
murder of Gabriel Campos Gutierrez (§§ 187, subd. (a), 189; count 1),
possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2), and
possession of ammunition by a felon (§ 30305, subd. (a)(1); count 3). As to
count 1, the information alleged that Garcia personally and intentionally
discharged a firearm causing death (§ 12022.53, subd. (d)) and had suffered a
prior serious felony conviction (§ 667, subd. (a)(1)) for attempting to prevent
or dissuade a witness or victim (§ 136.1, subd. (a)(2)). The information
further alleged that Garcia had suffered a prior strike conviction (§ 1170.12,
subd. (c)(1)).
In July 2025, the jury found Garcia not guilty of first degree murder
but guilty of second degree murder (count 1). The jury also found Garcia
guilty as charged of possession of a firearm by a felon (count 2) and
possession of ammunition by a felon (count 3).2 Additionally, the jury found
true the firearm use allegation attached to count 1.
At a bifurcated court trial on the two prior conviction allegations, the
trial court found those allegations true.
On August 20, 2025, the trial court sentenced Garcia to an aggregate
indeterminate term of 55 years to life in prison consecutive to a determinate
term of two years eight months. The indeterminate term consists of 30 years
to life on count 1 (15 years to life, doubled under the Three Strikes law)
consecutive to 25 years to life for the firearm use enhancement (§ 12022.53,
2 At trial, Garcia stipulated for the purposes of counts 2 and 3 that he
had previously been convicted of a felony offense.
2
subd. (d)). The determinate term consists of two years eight months on count
2 (the lower term of 16 months, doubled under the Three Strikes law) and a
stayed term (§ 654) of two years eight months on count 3 (the lower term of
16 months, doubled under the Three Strikes law). The court struck the prior
serious felony conviction enhancement under section 1385, subdivision (c).
B. Evidence Presented at Trial
1. Prosecution Evidence
Around noon on April 5, 2024,3 a surveillance camera captured Garcia
parking his car outside of Bankers Casino in downtown Salinas. Garcia,
wearing a large, baggy orange sweatshirt, entered the casino and remained
there for over 10 hours. Around 10:31 p.m., Garcia exited the casino
accompanied by a woman. Seven minutes later, the pair walked away from
the casino’s parking lot (leaving Garcia’s car there).
Around 10:38 p.m., a surveillance camera outside the Last Call Bar and
Grill (Last Call) captured S.O. and D.R.4 separately approaching and
eventually entering the Last Call.5
At 10:43 p.m., the surveillance camera outside the Last Call captured
Garcia and the woman walking into the bar. Around 30 seconds later, J.B.
exited the bar.
3 Unless otherwise indicated, all dates were in 2024.
4 We refer to the civilians involved in this matter by their initials to
protect their privacy interests. (See Cal. Rules of Court, rule 8.90(b)(10).)
5 The Last Call was located approximately three blocks (0.4 miles)
south of Bankers Casino. The instant shooting happened later that night at
another bar called Jaime’s Lounge (Jaime’s), which was located
approximately one and one-half blocks northwest of the Last Call (i.e.,
roughly midway between, and to the west of, the Last Call and Bankers
Casino).
3
At 11:09 p.m., the same surveillance camera captured D.R. and S.O.
leaving the Last Call together. The video footage depicts D.R. rubbing his
right hand and showing it to S.O. as they walk away from the bar.
A security guard who was working at the Last Call on the night of April
5 testified that the bar’s security staff searched the patrons for weapons prior
to their entry using a metal detector wand and pat downs. Around 11:00 p.m.
that night, two women began fighting. The bar’s staff broke up the fight. A
few minutes later, the security guard learned that there was a person
bleeding in the men’s restroom. The security guard went there and saw
Garcia “full of blood,” “[h]overing over the sink,” and cleaning his face.
Garcia had an injury to his nose and blood on his face. There also was blood
on the sink and floor.
When the security guard asked Garcia what had happened, Garcia said
he was “jumped by four to five males.” Garcia did not identify the men. He
also refused to have his picture taken and did not want any assistance from
police or emergency medical personnel. The security guard gave Garcia a
towel and escorted him out of the bar’s side door around 11:18 p.m. Garcia
was still bleeding “a lot.” Garcia said he was going to his car parked at
Bankers Casino.
At 11:25 p.m., Garcia approached his car in the Bankers Casino
parking lot; he was carrying a towel. Garcia opened the driver’s door, either
leaned or got into his car for around 10 seconds, then exited the car. Garcia
next entered the casino (with apparent blood on his orange sweatshirt and
slight redness/bruising in the area of his nose), walked around, spoke to a
security guard, and exited at 11:30 p.m. Garcia got into his car and drove
away.
4
Meanwhile, at approximately 11:26 p.m., D.R. arrived at Jaime’s.
According to surveillance footage from inside Jaime’s, about two minutes
later, S.O. arrived, and so did J.B. and victim Gutierrez, together. D.R.
greeted J.B. and Gutierrez as they sat at the bar. S.O. approached the group.
S.O. showed the toe of his boot (which was stained) to D.R. and J.B. D.R.
likewise showed his right hand and pulled back a bandage that he had on his
knuckles.6
At 11:33 p.m., Garcia drove into an alleyway behind Jaime’s, parked
his car, got out, and used his towel to seemingly clean out his nose.
Surveillance footage shows that approximately two minutes later (around
11:35:09 p.m.), Garcia walked up to the front entrance of Jaime’s. J.B. and
two security guards (R.M. & S.E.) were standing outside Jaime’s. Garcia
pointed toward the entrance to the bar, spoke to the men, and pulled out the
towel to wipe his nose again. Garcia was wearing the same baggy orange
sweatshirt (which still had bloodstains on it). Garcia’s gun was not visible.
Around 25 seconds after Garcia arrived outside Jaimes’s, J.B. looked inside
the door to the bar and motioned with his hand, seemingly asking for
someone to join him outside. In response, Gutierrez got up from his bar stool
and walked outside at about 11:35:47 p.m.
Approximately 15 seconds later (at 11:36:02 p.m.), J.B. again looked
inside Jaime’s and beckoned to S.O. and D.R. Around the same time, Garcia
folded his towel and began walking away from the entrance. Meanwhile,
inside Jaime’s, S.O., followed by D.R. and another man, walked through the
bar toward the front entrance. Outside, J.B. and Gutierrez followed Garcia
6 The surveillance footage depicts Gutierrez looking at something on his
cell phone, not S.O. and D.R., as they respectively displayed the boot and
bandaged hand.
5
as he walked away from the entrance. At 11:36:10 p.m., Garcia stopped and
turned around partially to face J.B. and Gutierrez as they approached. S.O.
walked toward the three men as they stood near each other on the sidewalk.
J.B. pointed toward S.O. as he approached, moving toward a position between
J.B. and Gutierrez.
At 11:36:16 p.m., as J.B., S.O., and Gutierrez stood a few feet from
Garcia (essentially in a semicircle with Gutierrez and J.B. closest to Garcia
and S.O. further away), Garcia reached toward his waistband and took a few
steps backward (moving outside the view of the surveillance camera). Garcia
pulled out a gun and fired it four times as J.B. and S.O. retreated toward the
entrance to Jaime’s (joining D.R. and the other man). Simultaneously,
Gutierrez stepped to the side (toward the storefronts), held up his hands, and
pointed his finger toward Garcia as Garcia drew and fired the gun. The video
footage does not show the shooting or Gutierrez falling to the ground. After
the shooting, Garcia ran quickly to his car and drove away from the area.
Around 11:37 p.m., police responded to the scene of the shooting. The
police found Gutierrez lying on his back with a gunshot wound in his left
abdomen. The bullet had entered Gutierrez’s abdomen and exited from his
lower back, traveling through Gutierrez’s body from left to right and slightly
downward. The police located four expended cartridge casings and a fired
bullet at the scene. Gutierrez was transported to a hospital and died there at
midnight; he was 46 years old.
D.R. and S.O. refused to cooperate with the police. J.B. told the police
that he had walked out of Jaime’s and saw his friend Gutierrez on the
ground. J.B. refused to give the police his phone number. Jaime’s security
guard S.E. was subpoenaed but failed to appear at trial. Law enforcement
could not locate the other security guard, R.M., around the time of trial.
6
Approximately nine months after the crime, law enforcement arrested
Garcia in Cancun, Mexico and brought him back to California. During a
police interview, Garcia denied any involvement in the shooting and said he
did not remember the night of April 5.
2. Defense Evidence
Garcia’s sole defense witness was the woman (D.P.) who had
accompanied Garcia from Bankers Casino to the Last Call on April 5. D.P.
testified that at some point that night, she left the Last Call with other
friends. D.P. also testified that she did not see any “commotion” while she
was at the bar or “see anything that looked as if Mr. Garcia was in trouble, or
he was being assaulted.”
II. DISCUSSION
Garcia raises two claims of error in this appeal: (1) the trial court
violated Garcia’s constitutional rights by failing to instruct the jurors sua
sponte on the necessarily lesser included offense of voluntary manslaughter
under a theory of heat of passion; and (2) if the court had no sua sponte duty
to instruct on voluntary manslaughter, Garcia’s defense counsel provided
prejudicial ineffective assistance of counsel (IAC) by failing to request a
voluntary manslaughter instruction.
We address Garcia’s claims concurrently.
A. Additional Background
Prior to the close of evidence at trial, the trial court and the parties
discussed the potential jury instructions off the record. Subsequently, on the
record, the court noted that it and the parties were “in complete agreement as
to which jury instructions should be given,” including “the provocation jury
instruction that was requested recently” (presumably by defense counsel).
7
As relevant to Garcia’s present claims of error, the trial court
instructed the jurors on murder with malice aforethought (including express
and implied malice) (CALCRIM No. 520), first degree murder based on a
theory of premeditation and deliberation (CALCRIM No. 521), the effect of
provocation on the degree of murder (CALCRIM No. 522), transferred intent
(CALCRIM No. 562), voluntary intoxication (CALCRIM No. 3426), motive
(CALCRIM No. 370), and defendant’s flight (CALCRIM No. 372).
During closing argument, the prosecutor asserted that Garcia “was
looking for payback” after being beaten at the Last Call and committed the
shooting with premeditation and deliberation. The prosecutor further
asserted that Garcia had intended to shoot S.O. but hit Gutierrez instead
and, thus, Garcia was guilty of murder under the transferred intent doctrine.
Garcia’s defense counsel argued that the prosecution had failed to
prove Garcia was the actual shooter of Gutierrez. Alternatively, counsel
argued that if the jurors found Garcia to be the shooter, voluntary
intoxication “may have an impact” on whether Garcia “formed intent to kill”
or “premeditated and deliberated.” Counsel argued further that “provocation
may apply in this case, given the facts and circumstances leading up to what
happened out in front of Jaime’s” and “provocation would make this a second-
degree murder and not a first-degree murder.”
As mentioned ante (pt. I.A.), the jury acquitted Garcia of first degree
murder but found him guilty of second degree murder.
B. Legal Principles
1. Murder and Voluntary Manslaughter
Murder is the unlawful killing of a human being with malice
aforethought. (§ 187, subd. (a).) Section 188, subdivision (a) provides that
“malice may be express or implied” and “[m]alice is express when there is
8
manifested a deliberate intention to unlawfully take away the life of a fellow
creature.” (Id., subd. (a)(1).) “Malice is implied when no considerable
provocation appears, or when the circumstances attending the killing show
an abandoned and malignant heart.” (Id., subd. (a)(2); see People v. Reyes
(2023) 14 Cal.5th 981, 988 [“Murder is committed with implied malice when
‘the killing is proximately caused by “ ‘an act, the natural consequences of
which are dangerous to life, which act was deliberately performed by a person
who knows that his [or her] conduct endangers the life of another and who
acts with conscious disregard for life.’ ” ’ ”].)
“Manslaughter is the unlawful killing of a human being without
malice.” (§ 192.) Voluntary manslaughter is that committed “upon a sudden
quarrel or heat of passion.” (Id., subd. (a).) “ ‘ “[H]eat of passion is a mental
state that precludes the formation of malice and reduces an unlawful killing
from murder to manslaughter.” [Citation.] Heat of passion killing is distinct
from malice murder because thought in some form is necessary “to form
either an intent to kill or a conscious disregard for human life.” [Citation.] A
heat of passion killing . . . is one caused by an unconsidered reaction to
provocation rather than the result of rational thought. If reason “ ‘ “was
obscured or disturbed by passion” ’ ” to so great a degree that an ordinary
person would “ ‘ “act rashly and without deliberation and reflection,” ’ ” [our
Supreme Court has] concluded that killing arose from “ ‘ “passion rather than
from judgment.” ’ ” ’ ” (People v. Thomas (2023) 14 Cal.5th 327, 386; see also
People v. Vargas (2020) 9 Cal.5th 793, 827–828.)
“ ‘The heat of passion requirement for manslaughter has both an
objective and a subjective component.’ [Citations.] ‘The defendant must
actually, subjectively, kill under the heat of passion.’ [Citation.] With
respect to the objective component, ‘ “this heat of passion must be such a
9
passion as would naturally be aroused in the mind of an ordinarily
reasonable person under the given facts and circumstances.” ’ [Citation.] To
satisfy this objective standard, ‘ “the accused’s heat of passion must be due to
‘sufficient provocation,’ ” ’ which must come from the victim. [Citation.] The
provocation which incites the defendant to homicidal conduct in the heat of
passion must be caused by the victim or by conduct reasonably believed by
the defendant to have been engaged in by the victim. [Citation.] ‘Adequate
provocation and heat of passion must be affirmatively demonstrated.’ ”
(People v. Choyce (2025) 18 Cal.5th 86, 104–105 (Choyce); see also People v.
Parker (2025) 113 Cal.App.5th 1261, 1268 [“The provocative conduct need not
be so extreme that it would prompt an ordinary person to kill. [Citation.]
However, to be sufficient, the provocation must be such that it would cause
an ordinary, sober person of average disposition to act rashly or without due
deliberation and reflection.”].)
Provocation may also reduce murder from first to second degree when
there is a reasonable doubt whether defendant acted with premeditation or
deliberation. (People v. Rivera (2019) 7 Cal.5th 306, 328; People v. Thomas
(1945) 25 Cal.2d 880, 903.) “ ‘ “[T]he existence of provocation which is not
‘adequate’ to reduce the class of the offense [from murder to manslaughter]
may nevertheless raise a reasonable doubt that the defendant formed the
intent to kill upon, and carried it out after, deliberation and
premeditation.” ’ ” (People v. Robbins (2018) 19 Cal.App.5th 660, 673.)
In contrast to the heat of passion requirement for voluntary
manslaughter, “[t]he test of whether provocation or heat of passion can
negate deliberation and premeditation so as to reduce first degree murder to
second degree murder . . . is subjective.” (People v. Padilla (2002) 103
Cal.App.4th 675, 678.) The subjective test “inquires whether the defendant
10
in fact committed the act because he was provoked” (People v. Jones (2014)
223 Cal.App.4th 995, 1000), which “may negate the elements of
premeditation, deliberateness and willfulness that are required for [first
degree murder]. [Citation.] But more is required to reduce malice murder to
voluntary manslaughter. For that, an objective test also applies: the
provocation must be so great that, in the words of CALCRIM No. 570, it
‘would have caused a person of average disposition to act rashly and without
due deliberation, that is, from passion rather than from judgment.’ ” (Id. at
pp. 1000–1001.)
2. Jury Instructions
“A trial court has a sua sponte duty to instruct the jury on a lesser
included uncharged offense if there is substantial evidence that would
absolve the defendant from guilt of the greater, but not the lesser, offense.
[Citation.] Substantial evidence is evidence from which a jury could conclude
beyond a reasonable doubt that the lesser offense was committed.
[Citations.] Speculative, minimal, or insubstantial evidence is insufficient to
require an instruction on a lesser included offense.” (People v. Simon (2016) 1
Cal.5th 98, 132; see also People v. Williams (1995) 40 Cal.App.4th 446, 454
[“[T]o justify the giving of voluntary manslaughter instructions it is not
enough that there is some evidence of heat of passion. [Citation.] There must
be ‘evidence substantial enough to merit consideration.’ ”].)
“We review the trial court’s failure to instruct on a lesser included
offense de novo [citations] considering the evidence in the light most
favorable to the defendant.” (People v. Brothers (2015) 236 Cal.App.4th 24,
30; see also People v. Nieves (2021) 11 Cal.5th 404, 463; People v. Millbrook
(2014) 222 Cal.App.4th 1122, 1137.)
11
C. Analysis
Garcia contends the trial court erred in failing to instruct on voluntary
manslaughter because the record contains substantial evidence from which
the jury reasonably could have concluded he was guilty of voluntary
manslaughter based on heat of passion. Garcia states that he was “viciously
assaulted at the Last Call [], leaving his face bloodied and his clothing
stained with blood.” He also notes that he only drew his gun and fired it after
J.B., S.O., and Gutierrez “approached and confronted him.” Garcia argues
that “[i]n this case of transferred intent, the jury properly could have
considered the group’s extremely recent violence against [Garcia] in assessing
both the objective reasonableness of his response as well as his subjective
belief in the need to do so.” Garcia further claims there was sufficient
evidence supporting the heat of passion instruction “from the perspective of a
[reasonable] person who had just been assaulted and who, a mere hour later,
was again menacingly confronted by his assailants as he was walking away.”
Preliminarily, we note that Garcia asserts in his appellate briefing that
J.B. “very likely was one of [Garcia’s] assailants” at the Last Call. Although
that assertion is not dispositive to our denial of Garcia’s claims for relief post,
even viewing the record in the light most favorable to Garcia, his assertion
that J.B. likely participated in the altercation at the Last Call is not
supported by substantial, nonspeculative evidence. As detailed ante
(pt. I.B.1.), the surveillance footage proves that J.B. exited the Last Call
about 30 seconds after Garcia arrived there at 10:43 p.m. There was no
evidence showing that J.B. reentered the Last Call that night. Furthermore,
in accord with the security guard’s testimony about the disruptions that
occurred beginning around 11:00 p.m., the surveillance footage shows that
D.R. and S.O. exited the Last Call at 11:09 p.m., and Garcia was escorted out
12
of the bar around 11:18 p.m. Based on our review of the record, the only
reasonable inference that can be drawn from the evidence is that J.B. (in
contrast to S.O. and D.R.) was not present at the Last Call when Garcia was
“jumped.”
Turning to the objective component of heat of passion, as discussed ante
(pt. II.B.1.), to satisfy that requirement, a defendant’s heat of passion must
be due to sufficient provocation. (Choyce, supra, 18 Cal.5th at p. 105.)
Provocation is legally sufficient when such provocation would induce a person
of average disposition “ ‘ “to act rashly or without due deliberation and
reflection, and from this passion rather than from judgment.” ’ ” (People v.
Nelson (2016) 1 Cal.5th 513, 538, quoting People v. Beltran (2013) 56 Cal.4th
935, 948 (Beltran).) “A voluntary manslaughter instruction is unwarranted
where the alleged provocation was no more than taunting words, a technical
battery, a slight touching, or simple assault.” (People v. Odell (2023) 92
Cal.App.5th 307, 318; see also People v. Gutierrez (2009) 45 Cal 4th 789, 827
[“Simple assault, such as the tussle defendant described, also does not rise to
the level of provocation necessary to support a voluntary manslaughter
instruction.”].)
Even viewing the trial evidence most favorably to Garcia, we are not
persuaded that there is substantial evidence supporting the objective
component of heat of passion at the time of the killing. As detailed ante
(pt. I.B.1.), the trial record establishes that sometime between approximately
11:00 p.m. and 11:09 p.m., four or five men (including D.R. and S.O.)
“jumped” Garcia inside the Last Call and hit Garcia in the face, causing him
to bleed profusely. The blood most likely emanated from inside Garcia’s nose
given the lack of evidence that Garcia suffered any cut or laceration to the
skin on his nose or face. When the bar’s security guard spoke to Garcia in the
13
bathroom, Garcia refused medical attention and did not want the police to be
called. The security guard lifted Garcia’s sweatshirt to see if he had any
other injuries; he did not. After Garcia left the Last Call, he retrieved his
gun (most likely from inside his car), put it inside his waistband under his
bulky sweatshirt, walked and looked around Bankers Casino, talked to a
security guard there, and eventually drove the short distance to Jaime’s.
Approximately 30 minutes after Garcia had been beaten at the Last
Call, he arrived at Jaime’s and spoke to J.B. and the two security guards
outside. One minute later, Garcia began walking away from the bar’s
entrance. J.B. and Gutierrez followed. Within a matter of seconds, Garica
stopped and turned toward J.B. and Gutierrez. The men did not touch
Garcia and remained a few feet away. A few seconds later, S.O. exited
Jaime’s and walked toward Garcia, J.B., and Gutierrez. As S.O. approached,
Garcia pulled out his gun and fired it. He then ran off and drove away.
Although the record amply supports that Garcia had suffered an attack
from S.O., D.R., and others at the Last Call that included a blow to his nose,
malice is not negated by passion when “ ‘sufficient time has elapsed between
the provocation and the fatal blow for passion to subside and reason to
return.’ ” (Beltran, supra, 56 Cal.4th at p. 951; see also People v. Hach (2009)
176 Cal.App.4th 1450, 1458 [“ ‘ “[T]he rule is that, if sufficient time has
ela[ps]ed for the passions of an ordinarily reasonable person to cool, the
killing is murder, not manslaughter.” ’ ”].) As little as 30 to 40 minutes may
be a sufficient cooling-off period. (People v. Dixon (1961) 192 Cal.App.2d 88,
90.) The instant trial evidence shows that Garcia left the Last Call about
nine minutes after D.R. and S.O. An additional 15 minutes passed while
Garcia walked from the Last Call back to and through Bankers Casino, spoke
to a security guard, and then drove to Jaime’s. During this period, Garcia
14
acted to escalate the situation by arming himself with a gun. At Jaime’s,
Garcia had an additional couple of minutes to cool off before J.B., Gutierrez,
and S.O. followed him on the sidewalk.
Relatedly, the brief interaction that occurred between Garcia,
Gutierrez, J.B., and S.O. outside Jaime’s does not, as Garcia contends,
amount to “obvious provocation.” There is no evidence regarding the words
that may have been spoken outside Jaime’s before or when Garcia walked
away, stopped, turned toward Gutierrez and J.B., and pulled out his gun. In
addition, Gutierrez, J.B., and S.O. were several feet away from Garcia when
he drew his weapon, and the trio did not make any overtly hostile or sudden
movements toward Garcia. On this record, without engaging in speculation,
we decide that the interaction outside Jaime’s amounted to a minimal
confrontation that would not have caused an average person in Garcia’s
circumstances to experience additional arousal of passion. (See People v.
Najera (2006) 138 Cal.App.4th 212, 226 [“ ‘ “A provocation of slight and
trifling character, such as words of reproach, however grievous they may be,
or gestures, or an assault, or even a blow, is not recognized as sufficient to
arouse, in a reasonable man, such passion as reduces an unlawful killing
with a deadly weapon to manslaughter.” ’ ”].)
Not only did Garcia have sufficient time to reflect and regain clear
reasoning and judgment after the attack at the Last Call, his calm and
deliberate behavior after he left the Last Call suggests that he armed himself
and fired his gun at Gutierrez, J.B., and S.O. out of a desire for revenge
against S.O. and the others who beat him. “[A] passion for revenge[,
however,] cannot satisfy the objective requirement for provocation.” (People
v. Gonzales and Soliz (2011) 52 Cal.4th 254, 301; see also People v. Gutierrez
15
(2002) 28 Cal.4th 1083, 1144 [“passion for revenge . . . will not serve to reduce
murder to manslaughter”].)
Under the present circumstance, even viewing the evidence in the light
most favorable to Garcia, we conclude that an ordinary person of average
disposition who suffered an attack like that perpetrated on Garcia would
have gained, and not lost, his clear reasoning and judgment by the time of
the shooting outside Jaime’s and would not have acted rashly or without due
deliberation or reflection in killing Gutierrez.7 (See People v. Moye (2009) 47
Cal.4th 537, 550–552.) We thus discern no error in the trial court’s failure to
instruct the jurors on voluntary manslaughter based on heat of passion.
Turning to Garcia’s alternative IAC claim, Garica contends his defense
counsel was ineffective in failing to request a jury instruction on heat of
passion voluntary manslaughter. To make out an IAC claim, Garcia “ ‘must
first show counsel’s performance was deficient, in that it fell below an
objective standard of reasonableness under prevailing professional norms.
Second, [Garcia] must show resulting prejudice, i.e., a reasonable probability
that, but for counsel’s deficient performance, the outcome of the proceeding
would have been different.’ ” (People v. Hoyt (2020) 8 Cal.5th 892, 958; see
also People v. Mai (2013) 57 Cal.4th 986, 1009.) We can reject the claim on
either element of the standard. (People v. Kirkpatrick (1994) 7 Cal.4th 988,
7 Given our conclusion that there is no substantial evidence supporting
the objective component of the heat of passion requirement for voluntary
manslaughter, we need not address the Attorney General’s additional
contentions that (1) heat of passion is legally inapplicable in this matter
because victim Gutierrez was not one of the attackers/provocateurs at the
Last Call, (2) there is no substantial evidence supporting the subjective
component of heat of passion, and (3) any error was harmless beyond a
reasonable doubt.
16
1008, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th
390, 421, fn. 22.)
As discussed ante, we have decided there is no substantial evidence to
support the objective component of the heat of passion requirement. Hence,
any request by counsel for a heat of passion voluntary manslaughter
instruction would not have been successful, and an IAC claim on that basis
necessarily fails. (See People v. Gray (2005) 37 Cal.4th 168, 219–220 [counsel
is not ineffective for failing to request a jury instruction on a lesser included
offense unsupported by substantial evidence]; People v. Dennis (1998) 17
Cal.4th 468, 541 [IAC claim premised on a failure to request a jury
instruction must fail where the defendant was not entitled to such an
instruction]; People v. Smith (2021) 70 Cal.App.5th 298, 313, fn. 24; see also
People v. Cunningham (2001) 25 Cal.4th 926, 1008 [“[E]ven on request, a trial
judge has no duty to instruct on any lesser offense unless there is substantial
evidence to support such instruction.”].)
III. DISPOSITION
The judgment is affirmed.
17
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Greenwood, P. J.
____________________________________
Adams, J.
H053585
People v. Garcia