Ramirez

Rafael A. Ramirez appeals from convictions on one count of murder and two firearms charges. He argues that the superior court erred by failing to instruct the jury on voluntary manslaughter on a heat of passion theory, and we agree.

We also conclude that the error was prejudicial. In particular, we reject respondent’s argument that the instructional error was rendered harmless by the jury’s determination that Ramirez was guilty of first degree murder rather than second degree murder. (People v. Berry (1976) 18 Cal.3d 509, 518 [ 134 Cal.Rptr. 415 , 556 P.2d 777 ].)

*1485 We accordingly reverse Ramirez’s murder conviction but affirm the firearms convictions.

BACKGROUND

The information charged Ramirez with one count of murder under subdivision (a) of Penal Code section 187 1 (count 1); one count of possession of a concealed firearm under subdivision (a)(2) of section 12025 (count 2); one count of obliterating the identification of a firearm under section 12090 (count 3); and one count of possession of a firearm with the identification numbers removed under subdivision (a) of section 12094 (count 4). As to count 1, the information further alleged that Ramirez personally…