P. v. Herrera
Filed 4/14/06 P. v. Herrera CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
| THE PEOPLE, Plaintiff and Respondent, v. MARVIN ALEXANDER HERRERA, Defendant and Appellant. | B181230 (Los Angeles County Super. Ct. No. BA126491) |
APPEAL from a judgment of the Superior Court of Los Angeles County,
Ruth A. Kwan, Judge. Affirmed.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell, and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Marvin Alexander Herrera appeals from his conviction of voluntary manslaughter. He contends that the trial court erred in refusing a request for continuance made on the second day of trial and in failing to give, sua sponte, CALJIC No. 5.50, which explains that a person threatened with an attack that justifies self-defense, need not retreat. We conclude that the court did not abuse its discretion in refusing the continuance request and that CALJIC No. 5.50 did not need to be given sua sponte under the facts of the case. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Complaint
Appellant was charged by felony complaint with the murder of Mario Alberto Barraza. It was further alleged that the murder was committed while lying in wait[1] and that appellant personally used a handgun within the meaning of Penal Code sections 1203.06, subdivision (a)(1) and 12022.5, subdivision (a),[2] which also caused the offense to become a serious felony pursuant to section 1192.7, subdivision (c)(8). The complaint alleged that at the time of the offense, appellant was out on bail on his own recognizance within the meaning of section 12022.1 and that he suffered a prior conviction of a serious or violent felony or juvenile adjudication in 1982. It was also alleged that he had been convicted of the crime of possession of a controlled substance (Health & Saf. Code, § 11377) in November1982, and of sale or transportation of a controlled substance (Health & Saf. Code, § 11352) in February 1990, and had served prison terms and did not remain free of prison custody or free from offense for five years subsequent to the conclusion of the terms within the meaning of section 667.5, subdivision (b).
Pretrial Proceedings
Appellant was arraigned on June 14, 2004. A public defender was appointed and counsel submitted discovery requests on June 22, 2004. The requests sought information pertaining to the felony convictions of witnesses and for appellant's â€
