People v. Bailey CA3

DISCUSSION

Defendant argues the court erred in refusing his request to instruct the jury with CALCRIM No. 511, which defines excusable homicide based on accident in the heat of passion. He argues, “[g]iven this undisputed history of choking women in the midst of heated arguments -- with no lingering effects from doing so -- a reasonable juror could have believed that [defendant] did not expect or intend choking [S. B.] to kill her this time.” We disagree. We review de novo a trial court’s refusal to instruct the jury. (People v. Licas (2007) 41 Cal.4th 362, 366.) “The trial court has no duty to instruct on a defense that is not supported by substantial evidence.” (People v. Bohana (2000) 84 Cal.App.4th 360, 370.) Taking defendant’s proffered evidence as true and resolving doubts as to its sufficiency in his favor, we must reverse if there is “ ‘ “evidence from which a jury composed of reasonable [people] could have concluded” ’ that the specific facts

2 supporting the instruction existed.” (People v. Petznick (2003) 114 Cal.App.4th 663, 677.) As relevant here, homicide is excusable “[w]hen committed by accident and misfortune, in the heat of passion, upon any sudden and…