Tucciarone

A jury convicted Thomas Joseph Tucciarone of attempted murder with a knife causing great bodily injury (Pen. Code, §§ 664/187, 12022, subd. (b), 12022.7), assault with a deadly weapon causing great bodily injury (§§ 245, subd. (a), 12022.7), mayhem (§ 203), exhibiting a deadly weapon in a threatening manner (§ 417), and assault with a deadly weapon (§ 245, subd. (a)). He was sentenced on the attempted murder count to seven years in prison plus three years enhancement. Sentences on counts two and three were stayed under section 654 and sentences on counts four and five made concurrent.

Tucciarone appeals, meritoriously contending the court erred in refusing his requested jury instruction on attempted voluntary manslaughter. He also contends his sentence on the attempted murder conviction is unconstitutional and the court erred in failing to give other instructions sua sponte.

Thomas and Marlene Tucciarone had separated after a stormy four-year marriage. They had had problems of physical abuse, his inability to hold a job and family problems. On December 21, 1980, they met and talked. They argued. He threatened to kill both himself and Marlene, saying he could not go on…