Moberly

Appellant Robert Lee Moberly shot and killed his son during an argument. A jury acquitted him of first and second degree murder, but found him guilty of voluntary manslaughter. The trial court sentenced him to 21 years in prison.

Appellant challenges both his conviction and sentence, arguing that (1) the trial court’s failure to give a “benefit of the doubt” instruction regarding the choice between voluntary and involuntary manslaughter violated the requirements of People v. Dewberry (1959) 51 Cal.2d 548 [ 334 P.2d 852 ] (Dewberry) and (2) the trial court violated the proscription against dual use of facts when it relied on the same fact to impose the upper term for manslaughter and for the related gun use enhancement.

We conclude as to appellant’s first argument that the trial court’s use of CALJIC Nos. 2.02, 8.74, and 8.75 satisfied the requirements of Dewberry . Thus, the jury was properly instructed regarding reasonable doubt in connection with the choice between voluntary and involuntary manslaughter.

As to appellant’s second argument, we find no prohibited dual use of facts occurred.

We order that errors in the abstract of judgment be corrected. The judgment is…