(Super. Ct. No. 10F04298)
The opinion of the court was delivered by: Mauro , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Billy James Ray was convicted of second degree murder. The trial court sentenced him to a determinate term of one year in prison plus a consecutive indeterminate term of 15 years to life.
(1) the trial court erred in failing to fully instruct the jury on lesser included offenses, because (a) it did not give the "heat of passion" manslaughter instruction sua sponte, and (b) it did not instruct the jury that killing with a conscious disregard for life can also be manslaughter; and
(2) there was insufficient evidence to support his murder conviction.
Regarding defendant's contention that the trial court erred in not giving the "heat of passion" manslaughter instruction sua sponte, we conclude the claim has no merit because there is no evidence of sufficient provocation.
As for defendant's contention that the trial court erred because it did not instruct the jury that killing with a conscious disregard for life can also be manslaughter, we conclude the jury was adequately instructed that a killing committed with a conscious disregard for human life is reduced to voluntary manslaughter if defendant acted in imperfect self-defense.
Finally, we conclude defendant's second degree murder conviction is supported by substantial evidence. There is evidence from which the jury could reasonably conclude defendant was guilty of second degree murder.
We will affirm the judgment.
Troy Wheeler and his girlfriend Julie Morris were the parents of a young girl. Morris's friend, Mike McMillan, developed romantic feelings for Morris (although she did not return them), and when she was present McMillan would ask his nephew, defendant, to leave. McMillan "never wanted [defendant] around." As a result, defendant was angry with Morris.
McMillan invited Morris and Wheeler to spend the weekend at his residence. They smoked methamphetamine and then Wheeler and his daughter went to sleep. While they were sleeping, Morris and McMillan bought food at a market. When they returned to the residence, Morris consumed some gamma-hydroxybutyric acid (GHB).
Defendant arrived with his friend Jenelle Cobb. At some point, defendant smoked methamphetamine with Morris and McMillan. Defendant told Morris that he "wasn't doing good, that he was tripping out." Defendant said he "had been up for four days, and that people . . . stole his phone."
Morris took additional GHB and went to sleep around midnight. Later, Morris and Wheeler woke up to loud noise like something was being knocked down or thrown. McMillan and defendant were arguing. McMillan wanted defendant to lie down and go to sleep, but defendant said it was really hot in the room. McMillan said Morris and Wheeler were in the living room where the cooler was located and that defendant should just go to bed. After arguing loudly for five to 10 minutes, McMillan told defendant to leave.
Wheeler screamed, "what the fuck is going on . . . my family is out here." Wheeler went to the ...