Riederer

A jury convicted defendant, James Francis Riederer, of first degree burglary, attempted murder, assault with a firearm (two counts), and disobeying a domestic relations court order, and found he used a firearm in the commission of the burglary and attempted murder. (Pen. Code, §§ 459, 460, subd. 1, 664/187, 245, subd. (a)(2), 273.6, 12022.5.) The court sentenced him to a total of 10 years in state prison. On appeal he contends the court should have granted his motion for a new trial on the ground of juror misconduct, should have instructed the jury on the crime of attempted voluntary manslaughter, improperly instructed on assault with a firearm, and erroneously sentenced him to a three-year term in state prison for a crime of which he was not convicted. We hold the trial court erred in failing, sua sponte, to instruct the jury on the crime of attempted voluntary manslaughter and will conditionally reverse. In rejecting defendant’s contention that the court’s erroneous instruction on assault with a deadly weapon was reversible per se, we choose not to follow the holding in People v. Burres (1980) 101 Cal.App.3d 341 [ 161 Cal.Rptr. 593 ]. For that reason we will publish…