Viramontes

*1259 Opinion

Introduction

Appellant Jason Viramontes challenges his murder and attempted murder convictions on the ground the trial court erred in refusing to instruct on imperfect self-defense. We conclude the evidence supported an instruction on imperfect self-defense and the trial court erred in failing to so instruct. Given the state of the evidence at trial, the error was not harmless.

Background and Procedural History

On the night of February 13, 1999, Ron Garcia held a party in his garage and yard. About 20 to 30 people were in the dimly lit garage, where a disc jockey played music. Three uninvited guests told Garcia they were members of the Dead End Locos gang. Two of these men were tall, and one of them wore backwards a dark blue or black baseball cap. At trial Garcia tentatively identified appellant as the tall man with the cap.

The party ended when gunfire erupted in the garage, killing Victor Lopez and seriously injuring his brother, Ishmael Lopez. Garcia did not witness the shooting because he had gone to the front yard to speak to police officers who had just stopped at the house, possibly in response to a complaint about noise. He heard one shot, a one- or…