P v. NAJERA
Filed 3/30/06
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
| THE PEOPLE, Plaintiff and Respondent, v. ABIMAEL FLORES NAJERA, Defendant and Appellant. | G034988 (Super. Ct. No. 03CF2477) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed.
Paul R. Ward, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, David Delgado-Rucci and Jennifer Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
Introduction
Defendant Abimael Flores Najera was charged with the first degree murder of Victor Hernandez. The jury convicted Najera of second degree murder, and the trial court sentenced him to an indeterminate term of 15 years to life. Najera contends the conviction for second degree murder should be reduced to voluntary manslaughter (Pen. Code, § 192, subd. (a)) on several grounds. Most significantly, he contends the prosecutor committed misconduct by misstating the law of murder and voluntary manslaughter during closing argument and rebuttal. Najera contends his trial counsel was ineffective by failing to object to the misconduct and to request admonitions.
We agree the prosecutor committed misconduct by making incorrect statements about the law of murder and voluntary manslaughter. Although Najera's trial counsel failed to object to the misconduct, Najera did not receive ineffective assistance of counsel because Najera was not entitled to a manslaughter instruction. Voluntary manslaughter is the unlawful killing of a person without malice â€
