P. v. Herren
A jury found appellant James Lewis Herren guilty of second degree murder (Pen. Code,[1] 187, subd. (a)), in the course of which he personally discharged a firearm ( 12022.53, subd. (d)). The court sentenced appellant to a total prison term of 40 years to life. At trial, appellant admitted he shot his daughter-in-law in the head but claimed it was not murder because he was acting in defense of his three-year-old granddaughter. On appeal, appellant contends the court erred in failing to instruct sua sponte on the lesser offense of voluntary manslaughter on the alternative theory of sudden quarrel or heat of passion. He further contends the court abused its discretion by denying his motion for a new trial based on the failure to so instruct. Court affirm.
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