P. v. Ainsworth
A jury convicted defendant Tyrell Ainsworth of first degree murder (Pen. Code, § 187, subd. (a))[1] and found true the allegation that defendant personally used a firearm within the meaning of section 12022.53, subdivision (d). Defendant admitted the allegation that he had suffered one prior strike conviction. After defendant’s successful motion to proceed in propria persona at the sentencing hearing, the court sentenced him to state prison for 75 years to life, consisting of 25 years to life for the murder, doubled pursuant to the “Three Strikes†law, plus a consecutive sentence of 25 years to life for the gun use enhancement.
Defendant contends on appeal that the trial court erred by refusing to instruct the jury regarding voluntary manslaughter because there was substantial evidence the killing was done in the heat of passion, and by admitting evidence that a shotgun not involved in the killing was found at defendant’s residence. We are not persuaded by either of these arguments. However, we agree with defendant’s further contention that because he was a minor at the time of the killing and the court did not consider the factors specified in Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455, 183 L.Ed.2d 407] (Miller) before imposing a sentence of 75 years to life, we must remand the matter to the trial court to reconsider its sentencing decision in light of that case. We thus affirm the judgment of conviction but remand the matter to the trial court for resentencing.
Defendant also contends and the Attorney General concedes that the trial court imposed an erroneous fine and erred in calculating his presentence custody credits. Accordingly, we order that the abstract of judgment be corrected.
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