Pena

Introduction

Defendant Richard Pena (Pena) appeals from a judgment of conviction and petitions for a writ of habeas corpus on the same judgment. Defendant was originally charged by information with murder in violation of section 187 of the Penal Code and with use of a firearm within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1).

Following a jury trial, defendant was convicted of voluntary manslaughter in violation of Penal Code section 192, subd. 1; the jury also found true the allegation defendant had personally used a firearm within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1).

Statement of Facts

Based upon the testimony of six witnesses, the People established that Frank Ambrosio (Ambrosio) had entered the bar area of the Mexican Village restaurant on February 24, 1978, sometime between 10 and 10:30 p.m. He walked at a normal pace toward defendant and a group of men who were standing at the bar; defendant stood with his back toward the bar. Prior to Ambrosio’s entry, the men had glanced repeatedly toward the door. Am brosio walked with his hands at his sides; he was smiling. He patted one of the men who had…