People v. Cole CA2/5

INTRODUCTION

A jury found defendant and appellant Lonny Cole (defendant) guilty of second degree murder and two counts of assault with a firearm. On appeal, defendant contends that the trial court abused its discretion when it excused a juror and admitted evidence of defendant’s prior acts of domestic violence. Defendant further contends that the trial court erred when it failed to instruct the jury sua sponte on the lesser included offense of involuntary manslaughter and when it imposed a 10-year gang enhancement term on his sentence on count 1, instead of a 15-year minimum parole eligibility term. We hold that the trial court did not abuse its discretion in excusing the juror or in admitting defendant’s prior acts of domestic violence. We further hold that there was insufficient evidence to support an instruction on involuntary manslaughter and that the trial court should have imposed a 15-year minimum parole eligibility term on defendant’s sentence on count 1, instead of the 10-year gang enhancement that it did impose on count 1. We therefore affirm the judgment of conviction and remand the matter with directions to the trial court to strike the 10-year gang enhancement term,…