People v. Asbury, 4 Cal. App. 5th 1222

Diane Asbury shot and killed her longtime ex-partner Anthony Simiele after he came to her home to retrieve belongings; she testified he followed her upstairs, picked up a hammer, advanced, and she fired a handgun she kept by her bed.
Prosecution charged first-degree murder with firearm enhancements; jury convicted Asbury of second-degree murder and found true the firearm discharge enhancement; sentence: 15 years-to-life plus consecutive 25-to-life (total 40-to-life).
Defense argued imperfect self-defense and requested jury instructions for voluntary manslaughter on both imperfect self-defense and heat-of-passion theories; trial court gave imperfect self-defense but refused a heat-of-passion instruction.
Post-trial, Asbury moved for a new trial claiming ineffective assistance for failing to present intimate-partner-battering expert evidence; the court denied the motion.
Asbury also challenged limitations on voir dire, alleged prosecutorial misconduct in closing, and raised a habeas petition reiterating ineffective-assistance claims.
The Court of Appeal reversed the murder conviction because the trial court erred in refusing the heat-of-passion instruction, and remanded giving the prosecution the choice to retry or accept conversion to voluntary manslaughter; habeas petition denied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether court erred by refusing heat-of-passion instruction	No error; facts show ongoing dispute, not sudden passion	Evidence of provocation and subjective extreme emotion warranted instruction	Reversed: refusal erroneous; evidence supported heat-of-passion instruction; remand for retrial or judgment modification to manslaughter
Whether voir dire time limits deprived defendant of fair trial	Time limits were within court's discretion and questionnaire covered biases	25-minute limit and refusal to allow additional questions (incl. race) impaired ability to probe bias	No reversal: despite close call, record shows no biased juror and procedures tested key issues; not fundamentally unfair
Whether trial counsel was ineffective for failing to present intimate-partner-battering experts	Counsel ineffective; such evidence would have supported perfect self-defense or manslaughter	Little evidence of pattern of physical violence; experts would not have produced reasonable probability of different outcome	Denied: even assuming deficiency, no prejudice shown—insufficient evidence such experts would have changed verdict
Whether prosecutor misstated burden of proof in closing	Misstatement diluted prosecution's burden	Statements were ambiguous and did not shift burden; jury received proper instructions	Denied: claim forfeited by no objection; any ambiguity harmless given correct instructions

People v. Breverman, 19 Cal.4th 142 (1998) (trial court must instruct on all supportable theories of a lesser included offense)
People v. Steele, 27 Cal.4th 1230 (2002) (heat-of-passion requires subjective passion and objective provocation standard)
People v. Wright, 242 Cal.App.4th 1461 (2015) (focus on emotional reasonableness for provocation analysis)
People v. Millbrook, 222 Cal.App.4th 1122 (2014) (standard of review for failure to instruct on lesser included offenses)
People v. Watson, 46 Cal.2d 818 (1956) (harmless error test for state law instructional errors)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong standard for ineffective assistance of counsel)
People v. Humphrey, 13 Cal.4th 1073 (1996) (expert testimony on battered-person syndrome may explain reasonableness of fear)
People v. Bolden, 29 Cal.4th 515 (2002) (trial court not strictly bound to Judicial Council voir dire recommendations)
People v. Holt, 15 Cal.4th 619 (1997) (voir dire so limited that resulting trial is fundamentally unfair warrants reversal)
People v. Gonzalez, 51 Cal.3d 1179 (1990) (prosecutorial misstatements harmless where jury received correct burden instructions)