P. v. Hurtado

Filed 4/25/06 P. v. Hurtado CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Abraham Jesus Hurtado was convicted by a jury of attempted voluntary manslaughter, assault with a deadly weapon, inflicting corporal injury on a spouse or cohabitant, and making criminal threats. He was sentenced to a total term of eight years and four months in prison. On appeal, Hurtado contends the trial court committed prejudicial error by erroneously instructing the jury regarding the offense of attempted voluntary manslaughter. We agree and therefore reverse the part of the judgment relating to that conviction.

II. STATEMENT OF FACTS

A. The Incident

Hurtado lived in a trailer in Oakley with his girlfriend, Vanessa Ponce. On the night of November 3, 2001, Hurtado and Ponce attended a party at Ponce's aunt's house. During the party Hurtado became angry with Ponce because he did not like the way she and her aunt were acting. He threatened Ponce and beat her with his fist. After they returned home, Hurtado hit Ponce again with a closed fist at the back of her head. He pulled a knife out from his belt and said Ponce's aunt was lucky he had not pulled it out on her. He told Ponce to take off her shirt because he wanted to make her bleed. Ponce said â€