P. v. Velasco
A jury found defendant guilty of attempted voluntary manslaughter (Pen. Code, 664/192, subd. (a)), as a lesser included offense of attempted murder (Pen. Code, 664/187) (count 1), and assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) (count 2).[1] As to both counts, the jury found true allegations that defendant personally used a deadly or dangerous weapon ( 12022, subd. (b)(1)) and personally inflicted great bodily injury ( 12022.7, subd. (a)). The court sentenced defendant to state prison for a term of seven years. Defendant contends (1) the trial court erred by not instructing the jury that there is a rebuttable legal presumption that a defendant reasonably feared imminent death or great bodily injury to himself or his family if an intruder unlawfully and forcibly entered a defendants home ( 198.5; Judicial Council of Cal. Crim. Jury Instns., CALCRIM No. 3477); and (2) the trial court erred by sentencing defendant for the enhancement of personally using a dangerous or deadly weapon during the commission of assault with a deadly weapon. The People concede defendant is correct as to his second contention. Court affirm the judgment with directions.
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