Otis

*895 Opinion

Defendant was charged with the murder of one Snell, and that during the commission of the offense he used a firearm, to wit, a shotgun. A jury convicted him of voluntary manslaughter, a lesser and included offense, and found he used a shotgun in the commission of the crime as alleged. A motion to strike the factual finding pursuant to section 12022.5, Penal Code 1 (use of a shotgun) was denied; “the armed allegation having been found true,” defendant was sentenced to prison for the prescribed term. Defendant appeals from the judgment.

While the sufficiency of the evidence to support the judgment is not challenged, defendant contends that the jury, had it been given an instruction (CALJIC No. 8.47) requested by him, could have found that the homicide constituted only involuntary manslaughter. In light of such claim, we summarize the relevant facts adduced at trial.

On the afternoon of the killing, defendant and his victim (Snell), both of whom had been drinking, encountered each other at a crap game then in progress in Pasadena. They had met on at least one previous occasion (a few days prior to the shooting) when Snell threatened to hit defendant with a wine bottle…