People v. Berry CA3

Filed 5/15/24 P. v. Berry CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Trinity) ----

THE PEOPLE,

Plaintiff and Respondent, C098159

v. (Super. Ct. No. 07F0018)

DONALD JOSEPH BERRY,

Defendant and Appellant.

A jury convicted defendant Donald Joseph Berry of second degree murder, corporal injury on a cohabitant, and assault with a firearm. The trial court sentenced him to 25 years to life in prison. On direct appeal, this court held it was error to instruct with CALJIC No. 8.51 [causing death while committing a felony or misdemeanor inherently dangerous to human life], but the error was harmless. (People v. Berry (Oct. 9, 2009, C058321) [nonpub. opn.] (Berry I).)

1

Defendant now appeals from the trial court’s denial of a petition for resentencing under Penal Code section 1170.95 (now section 1172.6).1 He contends (1) instructing the jury with CALJIC No. 8.51 allowed it to impute malice, and (2) the trial court erred in relying on this court’s prior opinion. Because the record of conviction establishes that defendant is ineligible for relief as a matter of law, we will affirm the trial court order denying the petition for resentencing. 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 is involuntary