Silvey

Lonnie Ray Silvey appeals his conviction for voluntary manslaughter, contending: (1) The evidence established self-defense as a matter of law; (2) the trial court erroneously failed to instruct the jury sua sponte that Silvey was presumed to have feared the infliction of death or great bodily injury; and (3) trial counsel was incompetent for having neglected to request such an instruction. We affirm.

Pamela Corry lived for about four years with her boyfriend, Rodney Robinson, in her mobilehome. Robinson was a small man, about 130 pounds. He was a heavy drinker and verbally abusive, but she testified he had never been violent. In July 1994, Corry and Robinson broke up, but since Robinson had little money and no place to go, Corry let him continue living in her trailer with her and her sister.

In less than a month, the relationship deteriorated and Robinson’s angry outbursts resulted in property damage and an attempt to slap Corry’s sister. Finally, in a scene familiar to every devotee of bad drama, Corry demanded Robinson return her key, they hugged, cried, and Robinson left, but not before trying to pick a fight with Corry’s friend Lonnie Ray Silvey.

Silvey was an…

I agree with my colleagues’ conclusions that the evidence was sufficient to sustain the conviction and that Silvey has not established his attorney was incompetent for failing to request an instruction on the presumption under Penal Code section 198.5. 1 1 dissent from their conclusion the trial court did not have a *1330 sua sponte duty to give such an instruction. 2 Because resolution of that issue turns largely on the facts, and because I view the factual scenario presented at trial somewhat differently than my colleagues, I recite my perception of the evidence. 3

Lonnie Ray Silvey worked as a security guard at a used car lot. He was provided a back room where he could sleep but it had no shower facilities. Pamela Corry, his friend of three years, gave him a key to her trailer and told him he could shower there once a day. Occasionally Silvey would come home very late and he also had permission to sleep on her couch. The understanding was he could either stay at her trailer or stay at the room where he worked. There was no indication Silvey and Corry were romantically involved, however.

Rodney Robinson, the victim, had been Corry’s boyfriend for about four years and lived…

Lonnie Ray Silvey appeals his conviction for voluntary manslaughter, contending: (1) The evidence established self-defense as a matter of law; (2) the trial court erroneously failed to instruct the jury sua sponte that Silvey was presumed to have feared the infliction of death or great bodily injury; and (3) trial counsel was incompetent for having neglected to request such an instruction. We affirm.

Pamela Corry lived for about four years with her boyfriend, Rodney Robinson, in her mobilehome. Robinson was a small man, about 130 pounds. He was a heavy drinker and verbally abusive, but she testified he had never been violent. In July 1994, Corry and Robinson broke up, but since Robinson had little money and no place to go, Corry let him continue living in her trailer with her and her sister.

In less than a month, the relationship deteriorated and Robinson's angry outbursts resulted in property damage and an attempt to slap Corry's sister. Finally, in a scene familiar to every devotee of bad drama, Corry demanded Robinson return her key, they hugged, cried, and Robinson left, but not before trying to pick a fight with Corry's friend Lonnie Ray…