P. v. Alvarez
A jury convicted defendant Frank Glen Alvarez of second degree murder and found that he personally used a deadly weapon, a knife, to commit the offense. (Pen. Code, 187, subd. (a), 12022, subd. (b)(1).)[1] In a bifurcated proceeding, the trial court found that defendant had 10 prior serious felony (strike) convictions. ( 667, subds. (a), (b)-(i), 1170.12.)
Sentenced to a prison term of 61 years to life, defendant appeals. He contends the trial court erred (1) in failing to instruct on its own motion on the effect of a prior assault by the victim against him (and, if not an error, claims his counsel was ineffective in failing to request this instruction, as well as one on voluntary intoxication); (2) in instructing with CALJIC No. 5.31 (defending against a fist assault; (3) in instructing with CALJIC No. 8.72 (juror unanimity and giving the benefit of doubt to manslaughter); (4) in finding a prior conviction for assault with a deadly weapon to be a serious felony; and (5) in awarding one less day of presentence custody credit. The People concede the last point and Court agree. .
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