APPEAL from a judgment of the Superior Court of Kern County. Lee Phillip Felice, Judge. (Super. Ct. No. BF116563A).
The opinion of the court was delivered by: Dawson, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant Robert Lee Moberly shot and killed his son during an argument. A jury acquitted him of first and second degree murder, but found him guilty of voluntary manslaughter. The trial court sentenced him to 21 years in prison.
Appellant challenges both his conviction and sentence, arguing that (1) the trial court‟s failure to give a "benefit of the doubt" instruction regarding the choice between voluntary and involuntary manslaughter violated the requirements of People v. Dewberry (1959) 51 Cal.2d 548 (Dewberry), and (2) the trial court violated the proscription against dual use of facts when it relied on the same fact to impose the upper term for manslaughter and for the related gun use enhancement.
We conclude as to appellant‟s first argument that the trial court‟s use of CALJIC Nos. 2.02, 8.74, and 8.75 satisfied the requirements of Dewberry. Thus, the jury was properly instructed regarding reasonable doubt in connection with the choice between voluntary and involuntary manslaughter.
As to appellant‟s second argument, we find no prohibited dual use of facts occurred.
We order that errors in the abstract of judgment be corrected. The judgment is otherwise affirmed.
By an amended information filed in September 2007, the district attorney charged appellant with first degree murder (Pen. Code, § 187, subd. (a); count 1),*fn2 being a felon in possession of a firearm (§ 12021, subd. (a)(1); count 2), and being a felon in possession of ammunition (§ 12316, subd. (b); count 3). The murder count included an allegation that appellant personally used a firearm (§ 12022.5, subd. (a))*fn3 in commiting the offense.
Appellant pled not guilty as to count 1 and denied the enhancement allegations. He entered a no contest plea as to counts 2 and 3.
Jury trial on count 1 began in December 2007. The jury reached a decision on December 18, 2007, finding appellant not guilty of murder but guilty of voluntary manslaughter and finding true the enhancement for personal use of a firearm (§ 12022.5 subd. (a)).
The trial court denied probation and sentenced appellant to a total of 21 years in state prison: the upper term of 11 years for the voluntary manslaughter conviction and the upper term of 10 years, consecutive, for the firearm enhancement. The court also imposed a concurrent three-year upper term on the count 2 charge and a three-year upper term on the count 3 charge, which it stayed pursuant to section 654.*fn4
We provide only a limited summary of the facts relating to the crime because the details and the conflicts in the evidence are not material to the issues decided in this appeal. It is enough to state that substantial evidence exists to support appellant‟s conviction.
In October 2006, appellant was 59 years old and lived with his wife and their four grandchildren in Bakersfield. Their son, Thomas Moberly, was the father of the four children.
On October 16, 2006, appellant, his wife, and Thomas took one of the children to a counseling session. Thomas‟s wife, Jackie, also attended the session. During the counseling session, appellant became angry with Jackie, and he and his wife left.
When the counseling session was over, Thomas went to the home of appellant. An argument ensued and Thomas refused to leave. Appellant went to his bedroom and returned with a gun. He again told Thomas to leave. Instead of leaving, however, Thomas moved closer to appellant and said, ""Go ahead, Dad. Go ahead and shoot me.‟" A witness testified that Thomas touched his head to the gun a couple of times.
Appellant‟s wife, who was standing between her husband and son with her back to her son, heard a gunshot and turned to see Thomas had been shot in the head. Appellant went outside, saw one of his grandsons, and handed him the gun. Then he got in a car and left.
Appellant drove to his brother‟s house. He was hysterical, crying that an accident had just occurred. He told his brother that, during a dispute in which he wanted his son to leave the house, his son head-butted the gun, saying to go ahead and shoot because he was not leaving.
I. Reasonable Doubt Regarding Voluntary and Involuntary ...