Lepolo

A jury convicted John Tauta Lepolo of second degree murder (Pen. Code, § 187), during which he used a rock (Pen. Code, § 12022, subd. (b)). He was sentenced to prison for 15 years to life, plus 1 year, and appeals, claiming the trial court erroneously excluded and admitted evidence, the jury was misinstructed, and the prosecutor committed misconduct. We reject his contentions and affirm.

Facts

Late on the night of July 29, 1994, Lepolo and a relative by marriage, hereinafter referred to as “the pedestrian,” were jaywalking across Chicago Avenue, in Riverside, attempting to beat oncoming traffic, when the latter was struck by a Volkswagen bus being driven by the victim. After Lepolo checked on the pedestrian and discovered that he was unresponsive, Lepolo approached the bus, said he was going to kill the victim, pulled him out of the bus and began beating and kicking him, despite the victim’s assertions that the collision had been an accident and he was sorry.

A bouncer from a nearby nightclub and his friend approached and tried to calm Lepolo, then pushed him away from the victim, without success. Finally, the bouncer gave Lepolo a bear hug to prevent him from further…