Love

A jury found Robert Eugene Love guilty of second degree murder. He moved for a new trial on the grounds the judge misdirected the jury in a matter of law (Pen. Code, § 1181, subd. 5) and the evidence was insufficient to support the verdict (Pen. Code, § 1181, subd. 7). His motion was granted on the former ground, but denied on the latter. The People appeal (Pen. Code, § 1238, subd. (a)(3)) contending the court’s ruling is an abuse of discretion.

We conclude, where a court after reweighing the evidence independently determines there is sufficient credible evidence to sustain the verdict and denies a new trial motion, its ruling on jury instructions thereafter is solely a question of law. After our review of the factual record considered in the light most favorable to the judgment, we decide the jury was properly instructed. There was sufficient evidence to give CALJIC No. 8.31 “Second Degree Murder—Killing Resulting From Unlawful Act Dangerous To Life” and substantial evidence to support the verdict. We reverse the order granting the new trial and instruct the trial court to reinstate the verdict of second degree murder.

I.

Factual Background

On November 24, 1978,…