Sinclair

Defendant, Basil Roy Sinclair, appeals after he was convicted of second degree murder and was found to have used a firearm. (Pen. Code, §§ 187, 12022.5.) In the published portion of the opinion, we conclude defendant, who testified before the jury at trial he never fired the fatal shot, presented no substantial evidence he committed the lesser and necessarily included crime of voluntary manslaughter (§ 192, subd. (a)) and, hence, there is no merit to his contention that he was entitled to instructions on heat of passion or imperfect self-defense. Further, in our unpublished discussion, we agree with the Attorney General that defendant must be sentenced to an additional four years for firearm use.

Defendant argues that he was entitled to voluntary manslaughter instructions on heat of passion (People v. Dennis (1998) 17 Cal.4th 468, 510 [ 71 Cal.Rptr.2d 680 , 950 P.2d 1035 ]; People v. Williams (1997) 16 Cal.4th 153, 227 [ 66 Cal.Rptr.2d 123 , 940 P.2d 710 ]) and imperfect self-defense theories. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [ 56 Cal.Rptr.2d 142 , 921 P.2d 1 ]; In re Christian S. (1994) 7 Cal.4th 768, 771 [ 30 Cal.Rptr.2d 33 , 872 P.2d 574 ].) These…