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Name: People v. Najera
Case #: G034988
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 03/30/2006

Appellant was convicted of second degree murder. His defense was that the victim called him a Spanish word for “faggot,” a provocative act, and therefore the crime was voluntary manslaughter. On appeal, he contended that the conviction should be reduced to voluntary manslaughter because the prosecutor committed misconduct by misstating the law of murder and voluntary manslaughter during closing argument and rebuttal in six different ways, including calling voluntary manslaughter a “legal fiction,” and telling the jury that a murder committed during heat of passion was second degree murder. Defense counsel failed to object to any of the misstatements. The appellate court found that the prosecutor committed misconduct during the argument. However, since defense counsel failed to object, appellant forfeited any claim of error based on prosecutorial misconduct. Further, defense counsel was not ineffective for failing to object because appellant was not entitled to a manslaughter instruction. Calling appellant a name was insufficient to cause an average person to lose reason under an objective standard. Since appellant was not entitled to a manslaughter instruction, the court did not reach his contentions regarding the jury instructions.