APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed. Super. Ct. No. SCE276920
The opinion of the court was delivered by: O'rourke, J.
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A jury convicted Kevin Christopher Royle of first degree murder (Pen. Code,*fn1 § 187, subd. (a); count 1) and assault with a semiautomatic firearm (§ 245, subd. (b); count 2). As to both counts, the jury found true allegations that Royle personally and intentionally used a firearm (§ 12022.5, subd. (a)), and as to count 1, the jury found true an allegation that Royle personally and intentionally discharged a firearm that proximately caused death (§ 12022.53, subd. (d)). Royle admitted one prior felony conviction and one prior strike conviction (§§ 667, subds. (a)(1), (b)-(i), 1170.12). The court sentenced him to a determinate term of 16 years for count 2 plus an indeterminate term of 75 years to life for count 1, consisting of a determinate lower two-strike term of six years in count 2, plus an indeterminate two-strike term of 50 years to life, plus an indeterminate term of 25 years to life for the firearm use in count 1, and two five-year terms for the serious prior felony conviction in counts 1 and 2 (§§ 667, subds. (a)(1), (b)-(i), 1170.12).
Royle contends the court prejudicially erred in refusing to instruct the jury on the theories of imperfect self-defense and justifiable homicide based on self-defense under CALCRIM Nos. 571 and 505, respectively. Royle further contends the prosecutor committed misconduct during closing argument by improperly appealing to the jury's passion and prejudice. We affirm the judgment.
James Parker rented a home in Lakeside, California where he lived with his girlfriend, Meghan Morgan, and her uncles, defendant and Dennis Royle.*fn2 Dennis testified that on December 29, 2007, Royle pointed a gun at him during an argument. Parker had a "no-gun" policy at the residence. When Parker returned home, Dennis told Parker about Royle's gun. Parker and Royle argued in the yard and got into a "small scuffle." Parker pinned Royle to the ground and yelled at him to take the gun out of the house. After the scuffle, Parker followed Royle back into the house and continued to argue with him in Royle's bedroom. Parker then went outside and spoke with Morgan on his cell phone. While sitting in the living room, Dennis saw Royle exit the house and heard him say, "You want some, punk?" Morgan testified Parker told her about the argument during their phone conversation and then she heard the phone drop on the ground. Dennis heard gunshots and went outside where he found Parker lying on the ground.
Royle's neighbor, Derrell Carriger, testified he heard gunfire while sitting at his desk about 100 feet away from Parker's driveway. Carriger stood up, looked out his window, and saw Royle pointing a gun at Parker. Parker was on the ground on one knee about 10 feet away from Royle. Royle placed the gun in his waistband, covered it with his coat, and walked down the driveway. Carriger went outside and saw Parker lying on the ground, talking on his cell phone in a low voice.
The gunshot wounds caused internal bleeding and Parker died quickly. A pathologist testified the cause of Parker's death was a gunshot wound to the lower torso.
Royle contends the court prejudicially erred by refusing to instruct the jury on voluntary manslaughter based on imperfect self-defense and justifiable homicide based on true or "perfect" self-defense. He maintains the evidence justifies the instruction because it shows that after the scuffle, Parker got "increasingly angry and charged at [him] before [he] fired his weapon."
As requested by Royle, CALCRIM No. 571 states: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense. [¶] If you conclude the defendant acted in complete self-defense, his action was lawful and you must find him not guilty of any crime. The difference between complete self-defense and imperfect self-defense depends on whether the defendant's belief in the need to use deadly force was reasonable. [¶] The defendant acted in imperfect self-defense if: [¶] 1. The defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury; [¶] AND [¶] 2. The ...