Walker

A.

Defendant’s Appeal

Introduction

Following trial by jury, defendant was convicted of attempted murder in the second degree (Pen. Code, § 664/187, subd. (a), count l) and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count 2). The allegations in both counts that defendant personally used a dangerous weapon, a knife (Pen. Code, § 12022, subd. (b)), and personally inflicted great bodily injury upon the victim (Pen. Code, § 12022.7) were found to be true. Defendant thereafter admitted two of the alleged prior convictions. He was sentenced to state prison for a total of 14 years. Defendant timely appealed.

Contentions

1. The trial court erred in refusing defense counsel’s request to instruct the jury with CALJIC Nos. 4.30 and 4.31.

2. The trial court erred in failing to instruct the jury sua sponte on the lesser offense of attempted voluntary manslaughter.

3. If the court had no sua sponte duty to instruct on voluntary manslaughter, defendant was denied effective assistance of counsel by his counsel’s failure to request such instructions.

Factual Statement

Prosecution Case.

On April 14, 1991, at approximately 6:30 p.m., Michael Reilly went to a…