Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, No. F07906797, James R. Oppliger, Judge.
John M. Kaman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
A jury found appellant James Lewis Herren guilty of second degree murder (Pen. Code, § 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. We affirm.
Further statutory references are to the Penal Code unless otherwise specified.
FACTS
A. The Prosecution Case
On the afternoon of August 29, 2007, appellant shot his daughter-in-law, Chai Xiong, once in the head with a Glock handgun. Chai died from the resulting gunshot wound. At the time of the shooting, Chai lived at appellant’s house, with her husband, Jason Herren, and their three-year-old daughter, Keeley.
For clarity, we use the first names of some witnesses. We intend no disrespect thereby.
Around 2:30 p.m., appellant called his sister, Sandra Herren, to come over and pick up Keeley. When Sandra arrived, appellant met her at the front door. Sandra asked appellant what was going on. Appellant told Sandra that when Chai got home from work, she hit Keeley and then sent Keeley to her room because she would not stop crying. After seeing Chai go into Keeley’s room, appellant heard Keeley screaming, “papa come help me.” Appellant ran into the room and saw Chai with a blanket over Keeley’s face. Appellant grabbed Chai but did not know or remember what happened next. When appellant was talking to Sandra, he was crying and upset.
Ron Kent lived across the street from appellant and had come to know appellant very well during the years they were neighbors. Appellant and Keeley appeared to have a very close relationship. They were together most of the time. Appellant told Kent he never knew he could love somebody so much before Keeley came along. Keeley seemed to be appellant’s whole world.
Around 3:00 p.m. on August 29, 2007, Kent walked out of his garage and saw police officers. Appellant was sitting on his front porch with a towel and a telephone. The police told Kent to get back inside his house. Kent did not know why the police were there. He yelled at appellant that something was going on and that he should get inside his house. The police again told Kent to go back inside his house. Appellant remained on the front porch.
Kent called appellant. Appellant told him, “I just shot Chai.” Kent asked if it was accidental, and appellant said no. Appellant told Kent, “Keeley is the reason that I did it.” Kent testified that while he was talking to appellant on the phone, appellant sounded “[j]ust a little … stressed out,” but otherwise did not sound different than usual. Kent confirmed that he had never seen any kind of friction between appellant and Chai, nor had he seen Chai act negatively towards Keeley.
Appellant eventually surrendered to the police without incident. A member of the S.W.A.T. team that responded to appellant’s house discovered Chai’s body in the garage. The body, which was lying face up, was covered by several blankets and articles of clothing.
B. The Defense Case
Appellant was the sole defense witness. Appellant testified that on August 29, 2007, Chai came home from work around 2:00 p.m. Chai told Keeley to change her clothes and that they were going to go visit friends. Keeley got upset and started to cry because she wanted to go swimming.
Chai got angry and spanked Keeley for crying. When Keeley would not stop crying, Chai took Keeley to her bedroom. Appellant followed Chai down the hallway and listened at the door. He could hear Keeley screaming, “Momma, no more.” Suddenly, appellant could not hear Keeley, but he could still hear Chai screaming at her to shut up. Then appellant could hear Keeley but “just barely … like she was a distance away.” Appellant opened the door and saw Chai holding a blanket over Keeley’s face, smothering her and screaming at her to shut up.
Appellant walked over, grabbed Chai by the hair, and threw her off the bed. He uncovered Keeley’s face, picked her up and comforted her. Keeley was crying hysterically. Angry, appellant turned to look at Chai, but she had left the bedroom and was walking down the hallway towards the living room.
After appellant comforted Keeley, he told her, “stay here, papa be right back.” Appellant then obtained a gun. He could not specifically remember getting the gun from his closet but that was where he had last placed it. After getting the gun, appellant went down the hallway to look for Chai. Appellant testified that when he was looking for Chai, he was thinking “[t]he abuse, it had to stop” because Chai was going to kill Keeley. Asked when he thought Chai was going to kill Keeley, appellant testified: “She almost was doing it just then, just seconds ago. She was smothering her. You die from being smothered.”
Appellant found Chai standing in the kitchen door leading to the garage. Appellant testified: “Then I walked up to her, and she gave me the same look she always gave me, you know, what are you going to do. So I pushed her. I pushed her.” Chai fell backwards on the steps of the garage and “kind of bounced off the fender of the car and fell onto the floor of the garage.” Appellant walked up to her and shot her once.
Appellant testified that at the time he shot Chai, he was thinking the abuse had to stop and he did not want his granddaughter to die. Appellant thought Keeley would have died if he had not been there that day. Later in his testimony, appellant stated that at the time he shot Chai, there was no doubt in his mind that Chai was going to kill his granddaughter.
Appellant testified that after the shooting, he thought about how he was going to face his son and decided, “I have to use the gun on myself.” He did not want Keeley to be there when he did it, so he called his sister to come pick up Keeley. Appellant went in the garage and covered Chai’s body with blankets so Keeley would not see her. He then drove with Keeley to the bank to withdraw money for Jason.
When he returned to the house, appellant parked the car outside the garage and went back in the house and wrote a letter to Jason explaining what he had done. Just as he finished the letter, his sister arrived to pick up Keeley. Appellant told her about seeing Chai smothering Keeley, but he could not bring himself to tell her what he had done.
After his sister left, appellant put his letter on the fireplace along with his insurance policy because it paid off on suicide. He then called his older son and left a message telling him goodbye. Afterwards, appellant called Jason and told him what he had done and that Keeley was with his sister. He then called 911 and reported that he had just killed his daughter-in-law.
The recording of the 911 call was played for the jury and admitted into evidence. The transcript of the call reflects that appellant immediately told the 911 operator he just killed his daughter-in-law. The 911 operator began asking appellant a number of questions. At one point, appellant asked, “Don’t you want to know why I killed her?” The 911 operator told appellant that the police officer would ask him about that. Appellant responded that he was not going to speak with the police but was going to use the gun on himself when they arrived, “so ask me what you need to know now.” (Unnecessary capitalization and punctuation omitted.)
After asking several more questions, the 911 operator asked appellant why he did it. Appellant responded:
“She has been abusing my granddaughter for the last two and a half years. Slapping her. You name it. I don’t have time to tell you everything she’s done. But she came home in a rage. Made the little girl cry. Spanked her for crying. When she wouldn’t stop she took her into her bedroom and I followed her and I listened at the door and she was screaming at the little girl to shut up and I heard the little girl crying. But her cries were like muffled. So I opened the door and she had a blanket over the little girl[’]s face with her hand on the blanket smothering her trying to make her shut up. So I grabbed her by the hair and I threw her away. And the cops are here so I gotta go.” (Unnecessary capitalization and punctuation omitted.)
Appellant remained on the phone and continued to speak with the 911 operator. Appellant repeated a few times that he had to do it, and that he would not go to jail for something he had to do. Towards the end of the call, appellant told the 911 operator: “I could not wait for her to kill my granddaughter before I did anything. The violence has been escalating for two years now it’s been getting worse and worse and I could not wait til she killed her before I did something. Nobody would believe me. My son didn’t see it.” (Unnecessary capitalization and punctuation omitted.)
During the 911 call, appellant also told the operator he told his sister what he had done when she came to pick up Keeley, contrary to appellant’s and Sandra Herren’s trial testimony.
Appellant testified that after he spoke to the 911 operator, he spoke to Officer Derik Kumagi on the phone. Appellant told the officer he killed Chai because she had been abusing his granddaughter and he saw her smother the child. He then spoke to a police negotiator for about an hour before he surrendered. Appellant told the police negotiator everything that happened. The police negotiator convinced appellant that he needed to give himself up so he could tell his side of the story and let people know why he did this.
A large portion of appellant’s trial testimony described the verbal and physical abuse he claimed to have witnessed Chai inflict on Keeley prior to the shooting. According to appellant, the abuse got worse over time, and when he saw Chai smothering Keeley, he thought it had reached the point where she was going to kill Keeley. Appellant explained: “[Y]ou hear on the news all the time, parents abusing their children for a length of time and then they go a little bit further and kill them. I thought she’d went that step further. I thought she was trying to kill her.”
Appellant testified that the first incident of abuse he witnessed occurred when Keeley was around 11 months old. After Keeley spilled her milk, Chai slapped her so hard it “made her little eyes roll.” Later, Chai started drugging Keeley by giving her “half a bottle” of Benadryl to make her sleepy. Chai would also throw toys at Keeley. Appellant eventually got rid of all of Keeley’s balls because Chai “would pick up the balls and throw them and hit her in the head with them and just had fun making her head bounce.”
Appellant further testified that Chai would burn Keeley with hot water when she bathed her. Appellant could hear Keeley screaming and calling, “Papa help me.” One time Keeley was burned so badly, “[h]er neck and her shoulders peeled like a sunburn.” Chai would also put Keeley, who was afraid of the dark, in a dark closet and keep her in there.
By the time of the shooting, Chai had started disciplining Keeley by biting her fingers and punching her with her fist. She would also tease Keeley about being a baby and would pick her up and then drop her on the floor. According to appellant, by the summer of 2007, such violent treatment had become a daily occurrence and even Jason had begun to notice it.
Appellant testified he never said anything to Chai when he observed the abuse because of an incident in the spring of 2006, during which Chai threatened to move out with Keeley after appellant made a critical comment to Chai, in front of Chai’s sister, about her teasing Keeley and making her cry. To prevent Chai from moving out, appellant promised to never interfere again. He felt he could protect Keeley when she lived with him.
After he promised not to interfere again, Chai began flaunting her abusive behavior in front of appellant. Appellant explained, “She would slap her and then look at me, and she would verbally assault her and make her cry and then look at me, or she would spank her.” Appellant further testified, “every time she would hurt her from then on, she would look at me like, what are you going to do, and I just had to sit there and take it.”
Appellant tried to protect Keeley by bathing her and having her in clean clothes before Chai would return home from work. He also took over feeding Keeley because Chai would get impatient with how slowly Keeley ate. Appellant tried to make sure all these things were done and the house was clean before Chai got home so there would be nothing for Chai to get angry about. According to appellant, Keeley started to reject Chai and ask for appellant to do everything for her. The more Keeley rejected Chai, the angrier Chai would get, which would cause Keeley to reject Chai even more.
Appellant claimed he never reported Chai’s abuse of Keeley because he did not think anyone would believe him because Chai, who worked as a correctional officer for the juvenile department, “had a badge.” Appellant testified that he discussed this with Jason and they were afraid that if they called law enforcement or child protective services, they would not be believed and that Chai would then leave with Keeley. Appellant explained that Chai had left the house two or three times before when Keeley was a baby. Appellant testified, “She used Keeley as a power over Jason and I. She told us a number of times that I know the power over you is through Keeley.”
On cross-examination, appellant admitted that in October 2006, ten months before the shooting, he talked to his son, James, Jr., about killing Chai. Appellant acknowledged telling James that he thought the only way he could save Keeley’s life was to kill Chai.
On redirect examination, appellant testified that the evening he made the comment about killing Chai, he had been drinking all day at a family barbeque for James’s birthday. During the party, Chai slapped Keeley a couple of times, which shocked everyone in the room. Appellant got angry and walked out into the front yard. James came out and told appellant that he was shocked by what Chai had done and that he had told her that was not how they did things at his house. Appellant then made the comment about killing Chai. Appellant had a beer in his hand when he said it. As soon as he said it, he wished he had not said it. Appellant further testified that he loved Chai and respected her as his son’s wife but “hated what she was doing.”
C. The Prosecution’s Rebuttal
The prosecution called a number of Chai’s coworkers and two of Chai’s sisters to testify regarding her character for nonviolence and to refute appellant’s claims that she was abusive towards Keeley. The prosecution also presented the testimony of an emergency room doctor who examined Keeley on August 30, 2007 (the day after the shooting), and reviewed Keeley’s medical records for trial. The doctor found no evidence of trauma or child abuse.
One of Chai’s coworkers and friends, Elizabeth Ramirez, testified that on the morning of August 29, 2007, Chai was in a good mood. Chai was looking forward to meeting Ramirez and other staff and their children for a pizza party at 4:00 p.m. Chai got off work around 2:00 p.m. At approximately 2:30 p.m., Chai sent Ramirez a text message. Chai’s text message said “they were arguing” and that she would get back to Ramirez later. When Chai did not show up to the pizza party, Ramirez sent Chai another text message and tried calling her, but Chai never responded.
D. The Motion for a New Trial
The jury was instructed on theories of justifiable homicide based on reasonable defense of another (CALCRIM No. 505) and voluntary manslaughter based on unreasonable or imperfect defense of another (CALCRIM No. 571). After the jury returned a verdict of second degree murder, the defense filed a “Motion for a New Trial, or to Modify the Verdict to Manslaughter: Heat of Passion.” In the moving papers, the defense argued the jury was misdirected on the law and the court should have given sua sponte instructions on heat of passion voluntary manslaughter (CALCRIM No. 570) because there was substantial evidence supporting such instructions. Alternatively, the defense argued appellant’s conviction should be reduced to voluntary manslaughter. The defense also submitted a declaration executed by appellant’s trial counsel, essentially stating that his failure to request instructions on heat of passion was not a tactical decision but an oversight on his part.
Judicial Council of California Criminal Jury Instructions (2007-2008) (CALCRIM).
After hearing extensive arguments of counsel, the court denied the motion. The court explained its ruling as follows:
“All right. I would like to address some of the early issues raised by defense. And just to make clear where I stand, it appears to me that you are correct that there is no waiver of a right to a jury instruction by failure to request it. It’s simply that it is the court’s duties irrespective of counsel’s request or lack of request.
“As I mentioned, it also appears to the court that there is a testified to provocative act. I am willing to apply a consideration of this without a presumption of correctness and to use the standard suggested by defense counsel ….
“As I’ve already mentioned in a question, but I will state that under the testimony there would, the period of time from the alleged provocation to the period of time of the killing would not be so distant as to preclude an instruction under the heat of passion.
“But in my evaluation of the evidence the only -- the evidence showed that there was a calculated decision to kill. And had there [been] different tactics, had there been different evidence it might have been the heat of passion instruction would have been given, but the law does require, as you mentioned, that to warrant an instruction Mr. Herren or the evidence itself must provide some evidence. An instruction must be based on evidence.
“In this particular case if the defendant had not testified, for instance, it might be that the circumstantial evidence, the provocation might have circumstantially led to a conclusion that there was a heat of passion or he might have testified as to something suggesting a passion. But those are might-have-been’s or speculation. And in the [instant] case there was, in my opinion, no evidence of passion and thus under the circumstances cannot provide a basis for an instruction.
“I understand that there might have been, there could have been. And in a moment I think you’ll see why I feel that way. But the court is not allowed to speculate and is not allowed to make rulings other than on the evidence presented and the evidence presented did not warrant a jury instruction.
“I feel that if a jury instruction had been requested on that that I would have been remiss in giving it because it would have improperly presented a defense and confused the jury and given them an option that was not, that would not be appropriate under those circumstances, under the precise circumstances of this case, which I think are can be differentiated from those under Breverman.
People v. Breverman (1998) 19 Cal.4th 142 (Breverman).
“Motion for a new trial and to reduce the verdict -- I would say this too, if the court was to feel that a[n] instructional error was committed I would not reduce the verdict in this particular case because there are many questions as to the truthfulness of the defendant’s testimony. So I would have granted a new trial had I chose that remedy.
“Before we go on and in light of this ruling I want to comment as to this, as you folks know there’s an old adage in homicide that every killing has a reason even if that reason is illogical or insane there remains a reason for every killing. Here the stated reason for the killing was not supported by the circumstantial evidence and perhaps was not the truth or at least the whole truth.
“The court’s feeling there is much more to this story than we have been told. That’s one point, but again that’s speculation. Maybe that would have, maybe that would have -- maybe the whole story would have produced a different set of instructions. I don’t feel that we heard that whole story.”
DISCUSSION
“[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence.” (Breverman, supra, 19 Cal.4th at p. 162.) Any inconsistency between an instruction on a lesser offense and a defendant’s testimony does not obviate the duty to instruct on a lesser offense that has substantial evidence in support of it. (Id. at pp. 162-163 & fn. 10.) This duty exists even if the lesser offense is contrary to the apparent theory of a defendant’s case or defense counsel’s express tactical purposes. (Id. at p. 162; People v. Barton (1995) 12 Cal.4th 186, 195.) We independently review a trial court’s failure to instruct on a lesser included offense (People v. Waidla (2000) 22 Cal.4th 690, 733). In determining whether substantial evidence to support such an instruction existed, we do not evaluate the credibility of witnesses, as that is a task for the jury (Breverman, at p. 162).
“An intentional, unlawful homicide is ‘upon a sudden quarrel or heat of passion’ (§ 192(a)), and is thus voluntary manslaughter (ibid.), if the killer’s reason was actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to cause an ‘“ordinary [person] of average disposition … to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.”’ [Citation.] ‘“[N]o specific type of provocation [is] required.…”’ [Citations.] Moreover, the passion aroused need not be anger or rage, but can be any ‘“‘[v]iolent, intense, high-wrought or enthusiastic emotion’”’ [citation] other than revenge [citation].” (Breverman, supra, 19 Cal.4th at p. 163.)
“The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively.… ‘[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,’ because ‘no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.) Although no specific type of provocation is required (People v. Berry (1976) 18 Cal.3d 509, 515), it must be caused by the victim, or be conduct reasonably believed by the defendant to have been engaged in by the victim (People v. Lee (1999) 20 Cal.4th 47, 59). Moreover, adequate provocation and heat of passion both must be affirmatively demonstrated. (Id. at p. 60; People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704.)
In his argument on appeal, appellant focuses, as he did below, on the issue of provocation. Appellant asserts adequate provocation was demonstrated by the victim’s alleged “repeated and repeated abuse” of his granddaughter “that almost certainly would have continued had someone not stopped it.” Assuming there was adequate provocation by the victim without a sufficient cooling period, as appellant asserts, we nonetheless agree with the trial court’s conclusion that appellant’s testimony showed he did not act under the heat of passion but made, in the trial court’s words, “a calculated decision to kill.” (See People v. Sinclair (1998) 64 Cal.App.4th 1012, 1015 [“‘It is not enough that provocation alone be demonstrated. There must also be evidence from which it can be inferred that the defendant’s reason was in fact obscured by passion at the time of the act’”].)
Appellant’s testimony does not support an inference that his reason was in fact clouded at the time he killed Chai. Rather, the thrust of his testimony was he deliberately shot and killed Chai because he believed it was necessary to prevent her from killing Keeley. According to appellant’s testimony, his belief was based on two years of witnessing Chai’s escalating abuse of Keeley. Appellant testified that upon seeing Chai smothering Keeley, he knew Chai had taken “that step further” and would have killed Keeley but for his intervention. “In the face of [appellant’s] own testimony, no reasonable juror could conclude [appellant] acted ‘“‘rashly or without due deliberation and reflection, and from this passion rather than from judgment …’” [citations]’ [citation].…” (People v. Moye (2009) 47 Cal.4th 537, 553; see Id. at p. 541 (Moye) [“no substantial evidence” to support heat of passion theory where only evidence introduced on point, “the defendant’s own uncontested testimony, was plainly to the contrary,” i.e., that he did not act under heat of passion].)
Furthermore, appellant’s extrajudicial statements, such as his statements to the 911 operator and his neighbor Ron Kent, were consistent with his trial testimony that he deliberately shot Chai to protect Keeley, and did not give rise to an inference that appellant’s reason was actually obscured by a strong passion at the time of the killing. Although there was some evidence that appellant felt anger towards the victim at the time of the killing, in order to demonstrate the heat of passion prong, it is not enough merely to point to evidence of anger or another emotion. The defendant must be so provoked by acts of the victim that the defendant “strikes out in the heat of passion, an emotion that obliterates reason that would prevail in the mind of a reasonable person.” (People v. Johnston (2003) 113 Cal.App.4th 1299, 1311, italics added.) Nothing in the evidence or in appellant’s statements indicates his reason was obliterated by his anger towards the victim. (Compare Breverman, supra, 19 Cal.4th at pp. 163-164 [defendant and other persons indicated number and behavior of intruders caused immediate fear and panic].)
Appellant relies on People v. Le (2007) 158 Cal.App.4th 516 (Le). Le is a murder case in which the defendant killed his wife’s long-term lover after she had broken several promises to end the affair. On the day of the killing, the wife used insulting words in a confrontation with her husband regarding the affair. (Le, supra, at pp. 519-522.) Le held that the trial court erred by instructing the jury with CALCRIM No. 917 and by permitting the prosecutor to argue to the jury that provocative words are insufficient to reduce murder to manslaughter as a matter of law. (Le, supra, at pp. 526-527.) Le does not directly address the issue appellant raises in this case, and therefore does not support his claim there was substantial evidence he was acting under the heat of passion when he killed the victim. (See People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7 [“It is axiomatic that cases are not authority for propositions not considered”].)
“[T]he court … instructed the jury pursuant to CALCRIM No. 917 that, ‘Words, no matter how offensive, and acts that are not threatening, are not enough to justify an assault or battery.’” (Le, supra, 158 Cal.App.4th at p. 524.)
To the extent appellant argues by analogy, Le, supra, 158 Cal.App.4th 516 is factually distinguishable. In addressing the question of whether the instructional error in that case was prejudicial, the appellate court noted the trial court properly instructed the jury on heat of passion and discussed some of the facts and circumstances warranting the instruction in that case:
“As the examples given in the CALCRIM manslaughter instructions indicate, provocation can include the verbal taunts of an unfaithful wife and infidelity. There was evidence of both here. Furthermore, there was evidence that appellant was acting ‘rashly and under the influence of intense emotion that obscured [his] reasoning or judgment.’ (CALCRIM No. 570.) The evidence showed that appellant was a 47-year-old man with a peaceful disposition and no criminal record. Appellant described his state of mind after the confrontation with [his wife] as ‘way too angry,’ and [his relative’s] observations of appellant at the time confirm this. During the police interrogation, appellant was asked repeatedly if he knew ‘that it’s wrong when you kill someone, that you are not supposed to do that.’ Appellant answered, in a halting description of classic heat of passion, ‘When I angry, angry, uh, I, I, I don’t know. I. I uh, e-everything. I don’t know, I, I don’t, I don’t think go to jail, I don’t think nothing. I, I just uh, know, kill him.’ It was entirely appropriate for the trial court to give the voluntary manslaughter instructions.” (Le, supra, 158 Cal.App.4th at p. 528.)
Appellant’s statements in this case were a far cry from those of the defendant in Le. The record demonstrates that appellant provided a coherent and consistent explanation of why he killed the victim every opportunity he was given. Moreover, “[appellant] took great pains in his testimony to justify each blow he landed on [the victim] … as a direct, defensive response” to the perceived threat the victim posed to his granddaughter’s life at the time of the shooting, and therefore this was insubstantial evidence to establish a killing in the heat of passion. (Moye, supra, 47 Cal.4th at p. 554.) Because the record lacks substantial evidence appellant was acting under the heat of passion, the court did not err in failing to instruct the jury on a heat of passion or sudden quarrel theory of voluntary manslaughter, nor did it abuse its discretion in denying appellant’s new trial motion based on the failure to give such instructions.
DISPOSITION
The judgment is affirmed.
WE CONCUR: CORNELL, Acting P.J., GOMES, J.