People v. Acevedo CA6

I. INTRODUCTION

Defendant Luciano Acevedo was convicted by jury of second degree murder (Pen. Code, § 187, subd. (a))1 and assault with a firearm (§ 245, subd. (a)(2)). The jury found that, in the commission of the murder, defendant personally and intentionally discharged a firearm and proximately caused death (§ 12022.53, subds. (b), (c) & (d)). The jury also found that defendant personally used a firearm (§ 12022.5, subd. (a)) in the commission of the assault. Further, the trial court found that defendant had a prior serious felony conviction that also qualified as a strike (§ 667, subds. (a)(1) & (b)-(i)), and that he had served a prior prison term (§ 667.5, former subd. (b)). The court sentenced defendant to 70 years to life.

All further statutory references are to the Penal Code unless otherwise indicated. On appeal, defendant contends that his trial counsel rendered ineffective assistance of counsel by failing to request a jury instruction regarding the killing being excused as an accident as set forth in CALCRIM No. 510. He argues that his murder conviction must be reversed as a result. For reasons that we will explain, we will affirm the judgment.

II.…