P. v. Anderson
Karmen Anderson appeals the judgment entered following his conviction by jury of attempted murder committed in a willful, deliberate and premeditated fashion and assault with a semiautomatic firearm. (Pen. Code, §§ 187, subd. (a), 664, subds. (a) & (f), 245, subd. (b).) The jury found Anderson personally used a firearm in the commission of both offenses. (Pen. Code, §§ 12022.53 subd. (b), 12022.5, subd. (a).)
Anderson contends the evidence was insufficient to support the finding the attempted murder was deliberate and premeditated, and the trial court erred in failing to instruct sua sponte on the lesser included offense of attempted voluntary manslaughter based on sudden quarrel or heat of passion, defense counsel rendered ineffective assistance in failing to request an instruction advising the jury provocation insufficient to reduce attempted murder to attempted voluntary manslaughter may be considered in determining whether the accused acted with deliberation and premeditation, and the trial court erroneously excused a deliberating juror.
As set forth below, we conclude the evidence supports the jury’s finding Anderson acted with deliberation and premeditation, the trial court had no sua sponte obligation to instruct on sudden quarrel/heat of passion as there was insufficient evidence a reasonable person in Anderson’s position would have been provoked. Further, on the facts presented, even if defense counsel had requested instruction on provocation as it relates to deliberation and premeditation, there is no reasonable probability of a different result. We also reject Anderson’s claim of error in the trial court’s excusal of a deliberating juror but agree with the People’s assertion the abstract of judgment must be amended to reflect the sentence imposed by the trial court. We therefore affirm the judgment as modified to reflect a 10-year firearm enhancement imposed by the trial court.
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