DATO, J.
APPEALS from judgments of the Superior Court of San Diego County No. SCD271651; SCD277879 Amalia L. Meza, Judge. Reversed and remanded.
Thomas E. Robertson, under appointment by the Court of Appeal, on behalf of Defendant and Appellant Luis Alejandro Dominguez.
Athena Shudde, under appointment by the Court of Appeal, on behalf of Defendant and Appellant Abraham Leal Torres.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman for Plaintiff and Respondent.
DATO, J.
In a flurry of 21 bullets fired in 3.7 seconds, Luis Alejandro Dominguez and Abraham Leal Torres (collectively, Defendants) shot and killed Angel Sanabria and wounded Joseph Luna. They missed two others (Juan Coronado and Alberto Nava), who were in or near the same small enclosed area. All four victims were members or associates of the Eastside San Diego gang. Defendants were charged with the first degree murder of Sanabria and the premeditated attempted murder of Luna, Coronado, and Nava. No gang enhancements were alleged; Defendants were not gang members, but were admittedly part of a neighborhood “tagging crew” that had conflicts with the Eastside gang
The issue at trial was not who shot, but why. Defendants admitted they were the shooters. The issue was their state of mind. Each testified he fired in a panic and fear when, while about eight feet away from them, Sanabria said, “Where the fuck you from?... This is Eastside, ” and lunged at them while reaching for an apparent weapon in his waistband. The court instructed the jury on both self-defense and voluntary manslaughter based on imperfect self-defense. But it refused Defendants' request to instruct on voluntary manslaughter based on heat-of-passion, determining there was insufficient evidence of the requisite provocation.