P. v. Estep
Defendant shot Jamie Mathis with a shotgun, killing her. At trial, there were two different versions of the events that night. Under the prosecutions version, presented by testimony of Jamies family and friends, defendant was the aggressor and the crime was premeditated murder.[1] Defendant claimed Jamie and her cohorts were the aggressors and he shot in self-defense. Accepting neither version completely, the jury convicted defendant of voluntary manslaughter (Pen. Code, 192) and found he personally used a firearm (Pen. Code, 12022.5, subd. (a)). The trial court found defendant had a previous prison term pursuant to Penal Code section 667.5, subdivision (b). The trial court sentenced defendant to the upper term on both the offense and the enhancement, for a total of 22 years in prison.
On appeal, defendant contends he was denied his right to present a defense because the trial court excluded evidence of the victims propensity for violence. He contends it was error to restrict cross-examination of a prosecution witness and not to instruct on involuntary manslaughter. Finally, he challenges his upper term sentence under Cunningham v. California (2007) 539 U.S. ___ [166 L.Ed.2d 856].) Court find merit only in the last contention. Court remand for resentencing and otherwise affirm the judgment.
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