Montes

A jury found appellant Herrera guilty of attempted voluntary manslaughter of Jacob Olivo (Pen. Code, § 664/192, subd. (a); a lesser included offense of the count 1 charge of attempted murder), and of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 2). Herrera was sentenced to a total state prison term of nine years and six months. The jury found Herrera’s codefendant, appellant Montes, guilty of the attempted voluntary manslaughter of Simon Verdugo (Pen. Code, § 664/192, subd. (a); a lesser included offense of the count 3 charge of attempted murder), and of assault with a firearm (Pen. Code, § 245, subd. (a)(2); count 5). The jury acquitted Montes on a charge of shooting at an inhabited dwelling (Pen. Code, § 246; count 4). Montes was sentenced to a total state prison term of 17 years and 6 months.

On this appeal both Herrera and Montes contend that the trial court erred in instructing the jury that the crime of attempted voluntary manslaughter may be committed by a perpetrator who “either intended to kill the victim, or acted in conscious disregard for life.” Herrera further contends that his concurrent four-year term on his count 2 conviction for…