P. v. Garcia

Filed 8/27/07 P. v. Garcia CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Tomson T. Ong, Judge. Affirmed.

Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M.
Roadarmel, Jr. and April S. Rylaarsdam, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendant and appellant John Garcia appeals from the judgment entered following a jury trial that resulted in his conviction for second degree murder. Garcia was sentenced to 36 years to life in prison.

Garcia contends: (1) the trial court erred by failing to instruct the jury on voluntary manslaughter; (2) his trial counsel provided ineffective assistance by acquiescing in the trial courts purported instructional error; and (3) the trial court erred by admitting evidence of his prior conviction and uncharged misconduct. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. Peoples case.

Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence presented at trial established the following. On February 7, 2004, appellant encountered Gilbert Lugo at a Long Beach library. Garcia asked Lugo if he had seen an Indian who had long hair and a bum eye. Garcia told Lugo to tell the Indian that he had a razor knife for him.

Later, at approximately 5:45 p.m., Wabeyuma Walker and Steve Barela were seated on a cement wall at Lincoln Park in Long Beach. The men were waiting for a bus to take them to a homeless shelter. Walker was of Native American descent. Garcia rode up on a bicycle. Walker asked him, What are you looking at? Garcia replied, Youre Indian. Im looking for an Indian and Im looking to kill an Indian and it might as well be you. Garcia and Walker began to argue. Each used profanity and made statements about the others mother. Garcia briefly displayed a box cutter that he pulled from his pocket, and then rode away.

Approximately five minutes later, Garcia returned on his bicycle. Garcia approached Walker and again stated, I want to kill you, youre Indian. Walker responded that his life was a piece of shit anyway, I dont care if I die. Walker got up from the wall and pushed Garcia into the street with one continuous pushing motion. Within a second or two, Garcia hit Walker in the throat with the box cutter. Walker fell to the ground. Garcia, who appeared shocked, mounted his bicycle and rode away.

Walker died several days later. His carotid artery and jugular vein had been injured in the attack, and the resultant loss of oxygen and hemorrhaging in the brain caused death.

b. Defense case.

Garcia testified in his own behalf, as follows. Although he had been rudely treated by an Indian man two weeks before the killing, the man was not Walker. Garcia had never seen or met Walker before the incident. When Garcia rode his bicycle past Walker, Walker raised his middle finger in a rude gesture and called Garcia an fing Mexican. After words were exchanged, Garcia rode away. However, after riding a brief distance, Garcia decided he should go back to extend his hand in friendship to Walker, so that if the two men encountered each other in the future there would be no hard feelings. When Garcia returned to where Walker was sitting, he asked Barela if he was Walkers friend. Barela told Garcia to leave it alone and [i]ts not worth it. As Garcia was turning to leave, Walker rushed at him and pulled him off the bicycle. Walker grabbed Garcia and pressed his fingers into Garcias windpipe, choking him. In self-defense, Garcia slashed at him with the box cutter, intending to aim for his cheek. Walker deflected the blow with his arm, causing Garcia to hit Walkers neck instead. Garcias testimony that Walker pulled him off his bicycle was corroborated by witness Raymond Leahy.

2. Procedure.

Trial was by jury. Garcia was convicted of second degree murder (Pen. Code,
187, subd. (a)).^[1]The jury found true the allegation that Garcia personally used a dangerous or deadly weapon, a knife, during commission of the crime. ( 12022, subd. (b)(1).) Garcia admitted suffering a prior strike conviction for assault with a firearm. The trial court sentenced Garcia to a prison term of 36 years to life. It imposed a restitution fine, a suspended parole revocation fine, and a court security assessment. Garcia appeals.

DISCUSSION

1. Failure to instruct on voluntary manslaughter.

a. Additional facts.

After the People rested, the trial court indicated it would start preparing jury instructions and requested that the parties provide any special instructions they desired. The court inquired whether the defense intended to offer a self-defense theory. Defense counsel replied, Sure looks like it. The trial court asked whether defense counsel intended to argue perfect or imperfect self defense. Defense counsel replied, I cant say one way or the other. The trial court observed that the defense would not likely offer a heat of passion theory, as the undisputed evidence showed Garcia had left the scene and returned, and the resultant cooling off period negated heat of passion. Defense counsel replied, I think thats very subjective. If they have an argument and after that argument come back three minutes later and have another argument, thats heat of passion. I just cant say until were done with our case. The trial court requested authority to support Garcias position, and confirmed the defense wished the jury to be instructed on voluntary manslaughter. Defense counsel responded affirmatively, but declined to disclose whether the defense would offer a heat of passion or an imperfect self-defense theory.

Subsequently, defense counsel confirmed the defense would not advance a heat of passion theory. The trial court agreed that no substantial evidence of heat of passion existed, because Mr. Garcia testified that he actually was angry for just a second and then he decided he wanted to go make peace, but he wanted to go through Mr. Barela to make peace with Mr. Walker. So he was not at a passionate position at that time. Observing that no other evidence suggested heat of passion, the trial court did not instruct on voluntary manslaughter and removed from CALCRIM No. 522 language stating that provocation could reduce a murder to manslaughter.

b. The trial court did not err by failing to instruct on voluntary manslaughter based on provocation and heat of passion.

Murder is the unlawful killing of a human being with malice aforethought. ( 187, subd. (a); People v. Manriquez (2005) 37 Cal.4th 547, 583.) Voluntary manslaughter is the intentional but nonmalicious killing of a human being. (People v. Manriquez, supra, 37 Cal.4th at p. 583; People v. Benavides (2005) 35 Cal.4th 69, 102; People v. Rios (2000) 23 Cal.4th 450, 454, 463 & fn. 10; 192.) Voluntary manslaughter is a lesser included offense of murder. (People v. Lee (1999) 20 Cal.4th 47, 59; People v. Manriquez, supra, at p. 583.) A killing may be reduced from murder to voluntary manslaughter if it occurs upon a sudden quarrel or in the heat of passion on sufficient provocation, or if the defendant kills in the unreasonable, but good faith, belief that deadly force is necessary in self-defense. (People v. Manriquez, supra, at p. 583; People v. Lee, supra, 20 Cal.4th at pp. 58-59.) The provocation which incites the defendant to homicidal conduct must be caused by the victim or be conduct reasonably believed by the defendant to have been engaged in by the victim. (People v. Manriquez, supra, at p. 583.) It may be physical or verbal, but it must be sufficiently provocative to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. (Ibid.; People v. Lee, supra, at p. 59; People v. Johnston, supra, 113 Cal.App.4th at
pp. 1311-1312.) A defendant who provokes a fight cannot himself assert provocation
by the victim. (People v. Johnston, supra, 113 Cal.App.4th at pp. 1312-1313.)

The heat of passion requirement has both an objective and a subjective component. (People v. Manriquez, supra, 37 Cal.4th at p. 584.) The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. (Ibid.; People v. Oropeza (2007) 151 Cal.App.4th 73, 82-83.) A defendant may not set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable person. (People v. Manriquez, supra, at p. 584; People v. Oropeza, supra, at pp. 82-83.) A defendant may not provoke a fight, become the aggressor, and, without first seeking to withdraw from the conflict, kill an adversary and expect to reduce the crime to manslaughter by merely asserting that it was accomplished upon a sudden quarrel or in the heat of passion. The claim of provocation cannot be based on events for which the defendant is culpably responsible. (People v. Oropeza, supra, at p. 83.)

The trial court must instruct on a lesser included offense if substantial evidence exists indicating the defendant is guilty only of the lesser offense. (People v. Manriquez, supra, 37 Cal.4th at p. 584; People v. Breverman (1998) 19 Cal.4th 142, 162.) Substantial evidence is evidence from which a jury composed of reasonable persons could conclude the lesser offense, but not the greater, was committed. (People v. Manriquez, supra, at p. 584; People v. Benavides, supra, 35 Cal.4th at p. 102; People v. Oropeza, supra, 151 Cal.App.4th at p. 78.) In deciding whether there is substantial evidence of a lesser included offense, we do not evaluate the credibility of the witnesses, a task for the jury. (People v. Manriquez, supra, at p. 585.) We employ a de novo standard of review when determining whether a lesser included offense instruction should have been given. (People v. Manriquez, supra, at p. 584; People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Oropeza, supra, at p. 78.)

Here, no evidence suggested Garcia acted in a heat of passion provoked by the victim. If Garcias testimony was credited, he was not actually and subjectively acting in the heat of passion when he killed Walker. Garcia testified that he was riding his bicycle near the line of persons waiting for the bus when Walker raised his middle finger in a rude gesture. Garcia was in shock. Walker said, what the fuck are you looking at, and stated he had something for Garcia. Garcia stopped riding his bicycle, and asked to whom Walker was directing his rude gesture. Walker responded, You, you fing Mexican. Garcia asked what was all that for, as he did not know Walker and had done nothing to him. Walker responded by again asking why Garcia was looking at him. Garcia countered that it was a free country and he could look where he pleased. Walker stood up, as if he wished to fight. Garcia stepped back, placed his hand on his back pocket where he had a utility knife, and told Walker not to touch him. Walker sat down and told Garcia, in rude terms, to leave. Garcia was angry at Walker for a quick second. Due to Walkers height and husky build, Garcia was also frightened.

After riding a short distance away, Garcia considered the encounter and decided maybe [he] should have extended [his] hand in friendship to Walker. He decided he did not want to leave until he had ended the interaction in a better fashion, and probably establish[ed] a friendship. Garcia therefore returned to the area where Walker was seated and attempted to establish contact with Walker through Barela, who was seated next to Walker. Barela told Garcia to leave it alone. Its not worth it. Garcia told Barela that he was going to kindly ask to politely talk to [Walker] because evidently [Walker] had a problem by the way he came at Garcia. Barela again told Garcia to let it go. Garcia decided Barela was right, and turned his bicycle to leave. Walker jumped up, pulled Garcia off the bicycle, and began choking Garcia by pressing his fingers into Garcias windpipe. Garcia tried to break free, but was unsuccessful. Believing that his life was in danger, Garcia slashed at Walker with his box cutter, intending to aim for his face but accidentally hitting Walkers neck.

Thus, Garcias testimony provided no evidence from which the jury could conclude he actually acted in the heat of passion. Garcia testified that he was angry only for a quick second. He did not act on his anger but instead rode away. He returned to Walker not because he intended to fight or injure Walker; instead, he wanted to politely extend [his] hand in friendship. Garcia never testified that he was overcome by his emotions. To the contrary, he testified that he wanted to make peace with Walker, and, when that failed, killed him in self-defense. Although Garcia argues that he acted out of fear, which might support a finding he acted in the heat of passion, this contention is not persuasive. The jury was instructed on perfect and imperfect self-defense, but rejected these theories.

Nor did the testimony of the other witnesses suggest Garcia acted in the heat of passion. Defense witness Natasha Quintana testified she heard arguing, turned to see Walker pull Garcia off his bike, and saw Garcia sock Walker. Defense witness Raymond Leahy testified similarly. Neither testified to facts suggesting Garcia was acting in the heat of passion.

Peoples witness Steve Barela testified that he and Walker were sitting on a wall, waiting for the bus, when Garcia rode up and said, Youre Indian, and Im looking to kill an Indian and it might as well be you. The men argued, and Garcia departed on his bicycle. When Garcia returned five minutes later, he again stated he wanted to kill an Indian, at which point Walker pushed him. If the jury credited this testimony as it apparently did the evidence did not show provocation such as to reduce the crime to voluntary manslaughter. People v. Johnston, supra, 113 Cal.App.4th 1299, is instructive. There, the defendant went to his ex-girlfriends home, armed with a knife. He stood outside the home yelling for the girlfriend and her brothers to come outside, and threatened to kill them. Eventually one of the brothers exited the house and charged the defendant. The brother was unarmed, but got the better of the defendant in the fight. The defendant then pulled out his knife and repeatedly and fatally stabbed the brother. (Id. at pp. 1310-1311.) On appeal, the court rejected the argument that a person who provokes a fight may assert provocation by the victim, such that a reasonable person in his position would lose judgment and kill. (Id. at p. 1312.) Johnstonexplained, If the defendant causes the victim to commit an act which the defendant could claim provoked him, he cannot kill the victim and claim that he was provoked. In such case, he is deemed to have acted with malice and would be guilty of murder. Thus, a defendant is guilty of murder when he arms himself and plans to insult the victim and then kill him if the victim strikes him in resentment over the insult. [Citation.] (Id. at p. 1312.) Because the defendant in Johnston, armed with a knife, had instigated the fight, he [could not] be heard to assert that he was provoked when [the victim] took him up on the challenge, and was culpably responsible for the altercation. (Id. at p. 1313.)

The same is true here. If Barelas testimony is credited, Garcia armed with a knife provoked the fight by repeatedly stating he wished to kill Walker because of his ethnicity. The evidence did not, therefore, show sufficient provocation by the victim to reduce the crime to voluntary manslaughter. (People v. Johnston, supra, 113 Cal.App.4th at p. 1313.)^[2]

c. Defense counsel was not ineffective.

Garcia also urges that his counsel was ineffective for failing to request instructions on voluntary manslaughter based on heat of passion. We disagree.

In assessing claims of ineffective assistance of trial counsel, we consider whether counsels representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] (People v. Carter (2003) 30 Cal.4th 1166, 1211; Strickland v. Washington (1984) 466 U.S. 668, 687.) We presume that counsels conduct falls within the wide range of reasonable professional assistance [citations], and we accord great deference to counsels tactical decisions. [Citation.] Were it otherwise, appellate courts would be required to engage in the perilous process of second-guessing counsels trial strategy. [Citation.] (People v. Frye (1998) 18 Cal.4th 894, 979; People v. Palmer (2005) 133 Cal.App.4th 1141, 1158.)

Here, as we have discussed, there was no substantial evidence supporting the theory that Garcia killed in the heat of passion upon legally sufficient provocation. Thus, any request by counsel for such an instruction would have been rejected. Counsel is not required to make futile motions or indulge in idle acts in order to appear competent. (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091.)

2. Admission of prior conviction and uncharged misconduct.

a. Additional facts.

Defense witness Raymond Leahy, another homeless person, testified that the day before the stabbing, he and his wife had been seated on the steps of a Long Beach church, trying to stay out of the rain. Walker, who appeared to be intoxicated, approached and attempted to pick a fight with him. Leahys wife pulled Leahy away.

Prior to Garcias testimony, at an Evidence Code section 402 hearing, the prosecutor sought to introduce evidence that Garcia had suffered a 1997 conviction for assault with a firearm, as well as evidence that a gun was found in Garcias house when he was arrested seven months after the killing. The prosecutor argued the evidence was admissible to impeach Garcias testimony, and as evidence of Garcias character for violence under Evidence Code section 1103.^[3]The trial court agreed.

Accordingly, during his testimony Garcia admitted suffering the 1997 conviction for assault with a firearm ( 245, subd. (a)(2)). He likewise admitted that he had purchased the gun used in the prior crime in the 1990s for his childrens protection, and that the same gun was found in his residence when he was detained by police in September 2004, months after the stabbing.

Although the trial court had admitted the evidence pursuant to Evidence Code
section 1103, it instructed the jury that the fact a witness had been convicted of a felony, or committed a crime or other misconduct, might be considered only in evaluating the witnesss credibility.^[4]

During closing argument, the prosecutor briefly argued that Garcia had a character for violence. He stated, Lets be in the defendants shoes, lets be the defendant. Lets be the man who has a history of violence. A man who has a character for violence. A man with a conviction for assault with a gun.

b. Discussion.

Garcia contends admission of the fact of his prior conviction and his possession of the gun when arrested violated his due process rights. He complains the evidence was not properly admitted under Evidence Code section 1103, was irrelevant, and was unduly prejudicial under Evidence Code section 352. In particular, Garcia complains that Leahys testimony did not establish the victim had a character for violence within the meaning of Evidence Code section 1103, a prerequisite to admission of evidence of the defendants character for violence. The evidence put on by the defense, he contends, showed Walker was belligerent and argumentative, and often intoxicated, but did not show Walker was violent. Garcia further argues that his prior conviction for assault with a firearm was his only felony offense, and, based on the probation report, the circumstances underlying that conviction were not particularly violent. Therefore, Garcia posits, admission of the evidence to show his character for violence was misleading. As to his possession of the gun when arrested, Garcia points out that he had never been charged with or convicted of being a felon in possession of a firearm; there was no evidence he actually owned the gun; and the gun was not in his possession at any relevant time.

We discern no reversible error. Both the prior conviction and the uncharged misconduct were admissible to impeach Garcia. Felony convictions are admissible to impeach a witnesss credibility. (Evid. Code 788.) Sections 788 and 352 of the Evidence Code control the admission of felony convictions for impeachment. Together, they provide discretion to the trial judge to exclude evidence of prior felony convictions when their probative value on credibility is outweighed by the risk of undue prejudice. [Citation.] [Citation.] (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.) The trial court is guided by four factors when determining the admissibility of prior convictions: (1) whether the prior conviction reflects adversely on honesty or veracity; (2) whether the prior conviction is remote in time; (3) whether the prior conviction is for the same or substantially similar conduct as the charged offense; and (4) whether fear of prejudice will prevent the defendant from testifying. (Ibid.) A trial courts admission of a prior conviction for impeachment will not be disturbed unless the ruling exceeds the bounds of reason and results in a miscarriage of justice. (People v. Green (1995) 34 Cal.App.4th 165, 182-183.)

As Garcia concedes, his conviction for assault with a firearm denoted moral turpitude, and was therefore admissible to impeach his testimony. (See People v. Hinton (2006) 37 Cal.4th 839, 888.) Likewise, his conduct of being a felon in possession of a firearm involved moral turpitude and was properly admitted to impeach. (People v. Littrel (1986) 185 Cal.App.3d 699, 703; People v. Feaster (2002) 102 Cal.App.4th 1084, 1092.) The conduct was not remote in time, the incidents were not similar to the charged crime of murder, and admission of the evidence did not dissuade Garcia from testifying.

The fact Garcia was not charged with or convicted of being a felon in possession of a firearm is immaterial. Evidence of criminal conduct involving moral turpitude is admissible to impeach whether or not the conduct resulted in a conviction. (People v. Wheeler (1992) 4 Cal.4th 284, 295-296; People v. Lepolo (1997) 55 Cal.App.4th 85, 89.) In People v. Wheeler, supra, 4 Cal.4th 284, our Supreme Court considered whether a witness in a criminal proceeding might be impeached with misdemeanor conduct. The court held that evidence of past misdemeanor conduct bearing on a witnesss veracity was admissible in a criminal proceeding subject to the trial courts discretion. (Id. at p. 295.) The court concluded that [m]isconduct involving moral turpitude may suggest a willingness to lie [citations], and this inference is not limited to conduct which resulted in a felony conviction. (Id. at pp. 295-296.) Subject to the moral turpitude requirement, immoral conduct is admissible for impeachment even though the witness was not convicted, or even if the conduct did not constitute a criminal offense. (Id. at
p. 297, fn. 7.) Contrary to Garcias argument, there was no real dispute that Garcia had engaged in the misconduct. He admitted suffering a felony conviction, admitted that he had purchased the gun and that it was his, and admitted that it was in his residence when he was detained. Thus, both the prior conviction and the facts showing Garcia was a felon in possession of a firearm were admissible for impeachment purposes.

The trial court also ruled the evidence was admissible under Evidence Code
section 1103. It instructed the jury, however, that it could consider both the evidence of the gun and the prior conviction only on the question of Garcias credibility. Nonetheless, because the prosecutor briefly argued during closing that Garcia had a character for violence, we consider whether the evidence was properly admitted under Evidence Code section 1103.

Absent specified exceptions, character evidence is generally inadmissible to prove conduct on a particular occasion. (Evid. Code, 1101, subd. (a).) Evidence Code section 1103 creates such an exception, providing that evidence of a crime victims character is not inadmissible when offered by the defendant to prove the conduct of the victim in conformity with the character or trait of character. (Evid. Code,  1103, subd. (a).)^[5] Evidence Code section 1103 further provides that evidence of the defendants character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a). (Evid. Code,  1103, subd. (b).) Evidence Code section 1103 therefore allows the introduction of evidence of a defendants violent acts and reputation for violence, if a defendant presents evidence as to the bad acts or reputation of the victim of a crime . . . . (People v. Blanco (1992) 10 Cal.App.4th 1167, 1169.) We review a trial courts ruling on an evidentiary question for abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 955.)

Here, Garcia introduced evidence Walker tried to pick a fight with Leahy, without provocation, the day before Garcia killed Walker. Leahy testified that he was sitting on the steps of a church when Walker, smelling of alcohol, approached in an aggressive manner and was trying to fight with [him]. He opined that Walker was like a loose cannon. This evidence was clearly offered to bolster Garcias account that Walker was the aggressor in the incident at issue. Accordingly, evidence of Garcias character for violence was admissible under section 1103, subdivision (b). (People v. Blanco, supra, 10 Cal.App.4th at pp. 1175-1176; People v. Clark (1982) 130 Cal.App.3d 371, 384, disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 92 [Where a defendant has introduced character evidence to prove a victims conduct then the prosecution may introduce such evidence to rebut the evidence introduced by the defendant. [Citation.]].) Accordingly, there was no error in admission of the prior conviction to prove Garcias character for violence.^[6]

In any event, even assuming evidence of the gun was not properly admitted under Evidence Code section 1103, any error was harmless. The erroneous admission of evidence requires reversal only if it is reasonably probable that the appellant would have obtained a more favorable result had the evidence been excluded. (Evid. Code, 353, subd. (b); People v. Earp (1999) 20 Cal.4th 826, 878; People v. Whitson (1998) 17 Cal.4th 229, 251.) The prosecutor did not argue the possession of the gun in September 2004 was evidence of Garcias character for violence, and, given the courts limiting instruction, it is unlikely the jury viewed it as such. Moreover, while Garcias commission of the crime of being a felon in possession of a firearm was relevant to the determination of his credibility, his possession of the gun, standing alone, was not particularly damaging or probative on the question of whether he had a violent disposition. A gun was not used in the charged murder; Garcia did not have the gun on his person when he committed the murder; and there was no evidence Garcia had ever used the gun improperly since his 1997 assault conviction. Therefore, his possession of the gun added little, if anything, to the Peoples attempt to prove Garcias character for violence. Any purported error in admission of the gun evidence pursuant to Evidence Code section 1103 was harmless.

DISPOSITION

The judgment is affirmed.

ALDRICH, J.

We concur: KLEIN, P. J. KITCHING, J.

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^[1] All further undesignated statutory references are to the Penal Code.

^[2] Given our conclusion that the evidence did not warrant voluntary manslaughter instructions, we need not address the Peoples contention that any instructional error was invited.

^[3] In an earlier sidebar discussion, the prosecutor had represented he did not intend to offer evidence that a gun was found in Garcias residence, because There was no gun used in this crime. I believe entering the gun would be probative and prejudicial, not to mention unethical. Im not going there. The prosecutors comments were apparently addressed only to admission of the gun in the Peoples case-in-chief.

^[4] CALCRIM No. 316, as provided to the jury, stated: If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witnesss testimony. The fact of a conviction does not necessarily destroy or impair a witnesss credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable. [] If you find that a witness has committed a crime or other misconduct, you may consider that fact only in evaluating the credibility of the witnesss testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witnesss credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.

^[5] Evidence Code section 1103, subdivision (a) provides in pertinent part: (a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.

^[6] Given our resolution of this issue, we find it unnecessary to address the Peoples waiver arguments.