Middleton

Defendant appeals his conviction of first degree murder (Pen. Code, § 187, subd. (a); further unspecified code sections refer to the Penal Code) with the special circumstance of financial gain (§ 190.2, subd. (a)(1)). He alleges the court erred by not giving a sua sponte instruction on the relationship between provocation and first and second degree murder. He also claims ineffective assistance of counsel for failure to request the instruction.

Defendant also contends the court erred by failing to (1) give an instruction on the use of justifiable force to protect property; (2) grant a continuance of the sentencing hearing, because defense counsel had not received the probation report five days prior to the sentencing hearing; and (3) make findings on all the elements of perjury to justify imposing an enhancement on that basis.

We affirm the judgment.

Background

On February 3, 1994, the San Mateo County District Attorney filed a nine-count information against defendant as follows: one count (count 1) of first degree murder (§187, subd. (a)); five counts (counts 2-6) of issuing a false check (§ 470); one count (count 7) of unlawful possession of marijuana for purposes…