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Name: People v. Barajas
Case #: F041273
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 07/15/2004
Subsequent History: 8/13/04: rhg. den.; 10/13/04: revw. den.

The trial court did not err when it failed to give CALJIC No. 8.72 (reasonable doubt between murder and manslaughter) sua sponte, when it gave a proper instruction in accordance with CALJIC No. 17.10 (conviction of lesser offense instead of greater). In People v. Dewberry (1959) 51 Cal. 2d 548 our Supreme Court held that the refusal to give 8.72 was error because the instructions as given erroneously implied that the rule requiring a finding of guilt on the lesser offense applied only as between first and second degree murder, and not between murder and manslaughter. However, CALJIC 17.10 satisfies the requirements of Dewberry. Since the court gave CALJIC 17.10, it did not err in failing to give CALJIC 8.72 sua sponte.