And this one is a shining example.
Then, on appeal, this one will get off because Gallegos didn't ensure that proper procedures were followed. Failure to give instruction on 2nd Degree Murder.
◼ First degree murder verdict overturned by First Appellate District in Ryan Salas case, defense counsel "ineffective", court "erred" - John Chiv/Words Worth
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT
RYAN ANTHONY SALAS, Defendant and Appellant.
A138588 (Humboldt County Super. Ct. No. CR1201698)
Appellant Ryan Anthony Salas was convicted, following a jury trial, of first degree felony murder, possession of a firearm by a felon, conspiracy to commit robbery, and conspiracy to commit burglary. The jury also found true both a felony-murder special-circumstance allegation and several other enhancement allegations. On appeal, he contends (1) defense counsel was ineffective because he did not request an instruction on voluntary intoxication or argue that theory to the jury; (2) the trial court erred when it failed to instruct sua sponte on attempt in connection with the predicate felonies for felony murder; (3) the trial court erred when it failed to instruct on the nexus requirement for felony murder or, in the alternative, defense counsel was ineffective for failing to request such an instruction; (4) the trial court erred when it failed to instruct sua sponte on the lesser-included offense of second degree murder or, in the alternative, counsel was ineffective for requesting that the court not so-instruct the jury; (5) the trial court improperly instructed the jury on the felony-murder special-circumstance allegation; and (6) the cumulative effect of the errors raised on appeal requires reversal of the judgment.
In a petition for writ of habeas corpus (habeas petition), appellant further contends defense counsel was ineffective for (1) failing to investigate or develop evidence regarding the defense of voluntary intoxication; (2) failing to use available evidence of voluntary intoxication as a defense at trial or as a basis for requesting an instruction on voluntary intoxication; (3) failing to request an instruction on the nexus requirement for felony murder; (4) persuading the trial court not to instruct on the lesser-included offense of second degree murder. He also argues that the cumulative effect of counsel’s deficient performance requires reversal of the judgment.
We conclude defense counsel was ineffective for requesting that the court not instruct the jury on the lesser-included offense of second degree murder and the court erred in failing to instruct on attempt in connection with the predicate felonies for felony murder. We shall therefore reverse the first degree murder conviction and felony-murder special-circumstance true finding. As we shall explain (see pt. II, post), we need not address the merits of the other issues raised on appeal or in appellant’s habeas petition, which we shall deny in a separate order.
...Here, the record reflects that defense counsel expressly requested that the trial court not instruct the jury on second degree murder. While the discussion regarding jury instructions was not held on the record, the trial court’s remarks made clear that it would not be giving a second degree murder instruction at counsel’s request. Moreover, although counsel’s reason for this request was not stated on the record, that he affirmatively made the request demonstrates a “clearly implied tactical purpose,” which is “sufficient to invoke the invited error rule.” (Coffman, supra, 34 Cal.4th at p. 49.) Consequently, appellant cannot now claim the court erred in failing to instruct the jury on second degree murder. (See ibid.)...
...The court concluded the instruction as follows: “If you decide that the defendant committed murder, you must then decide whether it is murder of the first[.]” As noted, the court crossed out the remainder of the final sentence of CALCRIM No. 520, which stated, “or second degree.”16 This disastrous instruction told the jury that it could find appellant guilty of murder if it determined he acted with implied malice, as described in the instruction, but took away the option of convicting him of second degree murder, the only type of murder to which the implied malice portion of the instruction could apply. (See People v. Knoller (2007) 41 Cal.4th 139, 156 [“a conviction for second degree murder, based on a theory of implied malice, requires proof that a defendant acted with conscious disregard of the danger to human life”].)
The prosecutor’s closing argument further exacerbated the problem. When discussing what appellant’s possible motive could have been when, after everyone “thought it was over” and started heading back to the car, appellant said “Fuck it,” ran back to the truck, and killed Sovereign, the prosecutor asked, “So what is his motive? Is it the robbery? Is it something else? [¶] Well, ladies and gentlemen, we don’t need to prove motive to you. It could be that there is a motive that you and I will never know, but motive is not an element. The prosecution doesn’t need to prove that to you in any murder case.
“The—the absence of motive, you can use. You can say, well, hey, they’re best friends. That’s his brother. They’ve known each other forever. The absence of motive, you can use to say he didn’t do it, but it also isn’t the absence of the fact that he did do it. So if you’re saying, okay, they’re all going there. I don’t understand. I don’t understand why he did this. I don’t know what his motive was. That is not reasonable doubt . . . .”
Later, after discussing the possible theories by which the jury could find appellant guilty of murder, the prosecutor concluded, “If some of you say, felony murder and some of you say implied malice and actual malice, gets [sic] what? Still murder. You can use that. You don’t necessarily need to agree on all of the theories for murder.” The prosecutor’s argument highlights the lack of clear evidence regarding whether appellant possessed the requisite intent for either first degree malice murder or felony murder.17 As with the misleading instructions, the prosecutor’s comments suggested to the jury that it could find appellant guilty of first degree murder even if it did not believe that appellant acted with either felonious intent or express malice, but only with implied malice.
In sum, the absence of a second degree murder instruction essentially left the jury with the all or nothing choice of first degree murder or acquittal, when the evidence suggested a middle ground. The misleading instructions on implied malice murder and the felony-murder special-circumstance, together with the prosecutor’s confusing argument, further muddied the situation and made it more likely that the jury would find appellant guilty of first degree felony murder based on a mistaken understanding of the law of felony murder and implied malice murder, and regardless of whether the evidence truly supported such a verdict.