People v. Berry CA3

BACKGROUND

In 2007, defendant and the victim were living together on a ranch. One evening, defendant stood over her with a shotgun, and a few hours later she was found unconscious with a badly beaten face. She never regained consciousness and later died. (Berry I, supra, C058321.) At trial, the trial court gave applicable CALJIC jury instructions, including instructions for first degree murder, second degree murder, manslaughter, and involuntary manslaughter. (CALJIC Nos. 1.01, 2.02, 3.31, 8.10, 8.11, 8.30, 8.31, 8.37, 8.40, 17.31.) In instructing on involuntary manslaughter, the trial court explained that an unlawful killing could include a killing committed during an act that was not a felony and was dangerous to human life, and that assault and battery could be predicate crimes for involuntary manslaughter. (CALJIC No. 8.45.) The trial court also instructed the jury with CALJIC No. 8.51, stating: “If a person causes another’s death, while committing a felony which is dangerous to human life, the crime is murder. If a person causes another’s death, while committing a misdemeanor or infraction which is dangerous to human life under the circumstances of its commission, the crime…