Najera

Introduction

Defendant Abimael Flores Najera' was charged with the first degree murder of Victor Hernandez. The jury convicted Najera of second degree murder, and the trial court sentenced him to an indeterminate term of 15 years to life. Najera contends the conviction for second degree murder should be reduced to voluntary manslaughter (Pen. Code, § 192, subd. (a)) on several grounds. Most significantly, he contends the prosecutor committed misconduct by misstating the law of murder and voluntary manslaughter during closing argument and rebuttal. Najera contends his trial counsel was ineffective by failing to object to the misconduct and to request admonitions.

We agree the prosecutor committed misconduct by making incorrect statements about the law of murder and voluntary manslaughter. Although Najera’s trial counsel failed to object to the misconduct, Najera did not receive ineffective assistance of counsel because Najera was not entitled to a manslaughter instruction. Voluntary manslaughter is the unlawful killing of a person without malice “upon a sudden quarrel or heat of passion.” (Pen. Code, § 192, subd. (a).) The sudden quarrel or heat of passion must be…