Trevino

Appellant Arnold Trevino stands convicted, following a jury trial, of one count of second degree murder (Pen. Code, § 187).* The jury further found that he used a knife in the commission thereof (§ 12022, subd. (b)). Sentenced to state prison for a term of 16 years to life, he appeals, contending that prejudicial instructional error occurred. For the reasons stated herein, we disagree and affirm.

Facts

During the early morning of September 12, 1986, Arnold Trevino stabbed and killed Ricky Blanton. They had a fight several hours earlier, with Blanton emerging as the winner. Trevino threatened Blanton at that time. At trial, the prosecution presented evidence that Blanton was asleep when Trevino inflicted the first stab wound.

Trevino testified in his own behalf and admitted stabbing Blanton, but claimed that Blanton was awake the whole time and that he assaulted Trevino. Fearing another beating, Trevino pulled his knife from its sheath and just started swinging. He was unaware until later that he had hurt Blanton.

Discussion

I CALJIC No. 5.

Trevino first contends that the trial court committed prejudicial error by giving CALJIC No. 5.12, Fourth edition 1979,…