Does the court have to subpena a critical witness?

Appellant also argues the court should have given, on its own motion, an instruction defining "malicious." He points out that Penal Code section[102 Cal.App.3d 1030] 7, defining words and phrases used within the code, provides: "(t)he words 'malice' and 'maliciously' import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act . . .." Appellant contends such an instruction should have been given because the court has a Sua sponte duty to instruct on elements of the crime. Assuming arguendo that an instruction defining malice should have been given, the absence of such an instruction did not prejudice appellant. Here, the jury clearly resolved the issue adversely to appellant under other proper instructions (cf. People v. Sedeno (1974) 10 Cal.3d 703, 720-721, 112 Cal.Rptr. 1, 518 P.2d 913). In rejecting appellant's self-defense theory and in finding him guilty of attempted voluntary manslaughter, the jury necessarily found he fired at the car with a "malicious" intent as defined in Penal Code section 7, quoted above.

Whether appellant was deprived of effective assistance of counsel because his attorney failed to subpena a critical witness.