Estep

In a retrial after the first jury deadlocked, a second jury acquitted defendant of first degree murder but convicted him of second degree murder and misdemeanor battery and found he used a firearm to commit the murder. (Pen. Code, §§ 187, 242, 12022.5, subd. (a).) On appeal, defendant contends (1) the instruction on motive (CALJIC No. 2.51) violated due process by erroneously telling the jurors they were to decide between guilt and innocence instead of determining if guilt had been proven beyond a reasonable doubt, and (2) the trial court erred prejudicially in admitting statements from the decedent about defendant’s prior bad acts and the decedent’s fear of defendant. We disagree with defendant’s contentions and affirm the judgment. We publish that part of our opinion rejecting defendant’s challenge to CALJIC No. 2.51.

Facts

About a week before she died in the summer of 1993, Shirley “Jody” Estep (Jody) had separated from her husband, defendant. The two separated following an argument about Jody having gone to a bar with some female friends on the evening of June 25, 1993.

On June 26, Officer Dale Poppleton answered a domestic dispute call at the Estep residence.…