In attempted murder trial, it was harmless error to fail to instruct the jury sua sponte that the prosecution was required to prove beyond a reasonable doubt that defendant did not act as a result of heat of passion (CALJIC No. 8.50). A jury convicted defendant of two counts of premeditated, willful, and deliberate attempted murder and found true various enhancements. Defendant testified in his defense about his fear of the victims, who had been threatening and harassing him. The jury was instructed on willful, deliberate, and premeditated attempted murder and attempted voluntary manslaughter. On appeal, defendant argued that the court erred in failing to instruct the jury sua sponte that the prosecution had the burden to prove beyond a reasonable doubt that he did not act as a result of heat of passion. Held: Instructional error harmless. Where there is evidence to support a finding that a killing was provoked or committed in an honest, but unreasonable, response to perceived danger, the prosecution must prove beyond a reasonable doubt that these circumstances were lacking in order to establish murder’s element of malice. CALJIC No. 8.50 outlines this principle. The record here included sufficient evidence to support defendant’s heat of passion defense and the trial court properly instructed the jury on the lesser included offense of attempted voluntary manslaughter. However, the trial did not fully instruct the jury on the heat of passion theory because it failed to instruct the jury sua sponte with CALJIC No. 8.50. Defendant was not prejudiced by the error because it was harmless. The jury necessarily resolved the factual question regarding heat of passion adversely to defendant when it found him guilty because the required state of mind for premeditated, willful, and deliberate attempted murder is manifestly inconsistent with having acted under heat of passion.

Defense counsel’s failure to object to juvenile offender’s defacto LWOP sentence constituted ineffective assistance of counsel. Defendant was a juvenile when he committed the offenses in his case. He was tried as an adult and sentenced to prison for 69 years to life. On appeal, defendant relied on Graham v. Florida (2010) 560 U.S. 48 and People v. Caballero (2012) 55 Cal.4th 262 to argue that his sentence constituted a defacto LWOP term in violation of the Eighth Amendment. Caballero, which was decided before defendant’s sentencing hearing, requires trial courts to consider mitigating circumstances in a juvenile offender’s crime and life when sentencing a juvenile offender. The Court of Appeal initially found that defendant forfeited his claim that his sentence was cruel and unusual because he failed to raise the issue in the trial court. However, the court also concluded that trial counsel was ineffective for failing to object to defendant’s sentence on this basis. A defense attorney who fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his client may be found incompetent. The error was prejudicial because defendant was a juvenile when he committed the crime, he did not have any prior criminal history, and he showed remorse at the sentencing hearing. The court remanded the case for a new sentencing hearing.