Welch

Defendant, James Alvin Welch, was charged with murder (Pen. Code, § 187) and use of a firearm in the commission of the offense (Pen. Code, §§ 12022.5, 1203.06, subd. (a)(1)). His first jury trial ended in a mistrial. After a second jury trial, he was convicted of voluntary manslaughter (Pen. Code, § 192, subd. 1), a lesser and necessarily included offense of the murder charge. Defendant was also found guilty of the charge of using a firearm in the commission of the offense. He was sentenced to four years in state prison.

Defendant appeals on three grounds: First, he asserts that his plea of once in jeopardy at the beginning of the second trial should have been granted, since no juror in his first trial had favored his conviction on the murder charge, in effect acquitting him of that charge. Second, he contends that the trial court’s refusal to instruct on involuntary manslaughter was prejudicial error. Third, he argues that two of the court’s instructions were erroneous because they were not supported by the evidence. These instructions were CALJIC No. 8.20 (1979 rev.) regarding first degree murder and CALJIC No. 5.55, which states that the right of self-defense is not…