Filed 5/25/16 P. v. McLean CA4/1

Received for posting 5/26/16

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

KYLE ROGER McLEAN,

Defendant and Appellant.

 D069903

 (Super. Ct. No. SWF1301920)

APPEAL from a judgment of the Superior Court of Riverside County, Stephen J. 

Gallon, Judge. Affirmed.

Cannon & Harris and Gregory L. Cannon, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, 

Assistant Attorneys General, A. Natasha Cortina and Christine Levingston Bergman, 

Deputy Attorneys General, for Plaintiff and Respondent. 

A jury convicted Kyle Roger McLean of first degree murder (Pen. Code,1 § 187, 

subd. (a)). It found true allegations that at the time McLean committed the offense he 

 

1 All statutory references are to the Penal Code. 
2

was released from custody pending trial on a felony (§ 12022.1) and the victim was 70 

years old or older (§ 368, subd. (b)(3)(B)). The jury found not true a special 

circumstance allegation that McLean killed the victim to prevent her from testifying in a 

criminal proceeding (§ 190.2, subd. (a)(10)). The trial court sentenced McLean to 25 

years to life in state prison and ordered McLean to pay restitution as well as various fines 

and fees. On McLean's request and with the People's concession, the court struck the 

section 12022.1 and section 368, subdivision (b) enhancements.

McLean contends the trial court prejudicially erred by failing to instruct the jury 

on voluntary manslaughter as a lesser included offense to murder under the theory of 

imperfect self-defense. He maintains the court's error violated his due process right to a 

fair trial and his Sixth Amendment right to a jury determination of every material issue in 

the case, requiring reversal under both the state and federal standards of prejudice. 

Because the record does not contain substantial evidence supporting instruction on a 

theory of imperfect self-defense, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2013, McLean choked and killed his then 71-year-old grandmother, 

Catharine Sutton, placed her body in the trunk of her car, then a locked bin, and 

eventually dumped it off a remote mountain cliff. McLean's defense was that the killing 

was involuntary manslaughter because he was provoked by Sutton and killed her in a heat 

of passion due to their sudden quarrel, and alternatively that his voluntary intoxication 

negated his intent to kill or ability to premeditate and deliberate for purposes of first 

degree murder. He claimed he had been abusing a large amount of drugs and alcohol in 
3

the days leading to Sutton's death, and on July 11, 2013, he and Sutton got into an 

argument and physical tussle during which he blacked out and choked Sutton to death. 

Events in the Weeks Before and Weekend of Sutton's Death

In June 2013, McLean, who was already on probation and living with Sutton after 

having been kicked out of his father's house, was arrested by police. A police officer had 

responded to a neighbor's call concerning a man in Sutton's cul-de-sac and talked to 

Sutton about McLean being on probation, which eventually led the officer to search 

McLean's room and arrest him for narcotics possession. 

McLean was again arrested on the day of Sutton's death. That day, Neil Erickson 

had driven McLean and other friends of McLean's to Sutton's house, where a neighbor 

saw Erickson spraying graffiti on a wall. Police arrested both McLean and Erickson for 

vandalism, but eventually released McLean. When police were putting McLean in the 

police car, McLean overheard Sutton telling the officer that she was having issues with 

McLean; that he was on drugs and maybe she needed to kick him out of her house. At 

the police station, Erickson observed that McLean was agitated and yelling. 

When McLean returned to Sutton's house after his release, an alarm technician 

working there observed that McLean was highly aggravated and upset that Sutton did not 

pick him up. The technician saw McLean and Sutton yelling and cursing back and forth 

at each other; he felt McLean was verbally abusing Sutton. At one point, McLean 

accused the technician of being with law enforcement. The technician did not see Sutton 

strike, push or hit McLean. Eventually McLean went to another part of the house and 

things got quiet. The technician left at about 6:10 p.m. and intended to return to complete 
4

his repairs the next day. When the technician left Sutton's house, she was alive and her 

surveillance cameras were operable. He could not reach Sutton the next day, and at some 

point spoke with McLean, who told him his grandmother was not home, something had 

come up, and she would be gone for the day. 

Tori M., who was dating McLean at the time, testified that at about 5:00 p.m. on 

the day of Sutton's death, McLean called and told her he had been arrested for vandalism; 

that Sutton had called the police on him. McLean told her he was going to try to borrow 

Sutton's car and would call Tori M. back. In his next phone calls, McLean sounded 

anxious and out of breath. When Tori M. got in Sutton's car, she noticed McLean's gold 

chain was broken. McLean handed her Sutton's purse and told her to go through it to see 

if there was money in it. He also asked her to take the battery out of Sutton's phone. 

Several days later, McLean asked Tori M. to sign two of Sutton's checks so they could 

obtain money to purchase drugs. 

That evening, McLean asked Erickson to meet him and showed him Sutton's body, 

which was in the trunk of Sutton's car. Another friend of McLean's, Kristin L., was with 

them. Erickson saw there was a belt pulled tight around Sutton's neck. McLean punched 

the body in the upper back to prove Sutton was dead. McLean told Erickson that "[t]he 

bitch snitched" about the graffiti and that he killed her. Erickson saw two spots of blood 

on McLean' shirt and a cut on McLean's hand. Kristin L. also saw blood on a shirt 

McLean was holding and a cut on his wrist or hand. She asked why McLean would kill 

his grandmother, and McLean said it was because she was going to snitch and he would 

get ten years of prison. McLean later told Erickson that Sutton had cut him with her 
5

fingernails; that she was a fighter and a "tough son-of-a-bitch" who "fought back." The 

next day, Erickson and McLean purchased supplies, including tarp, machetes, bleach and 

gloves, to clean Sutton's house of fingerprints and dispose of her body. 

During the weekend of July 11, 2013, McLean and another friend went to see 

Christopher Manwaring, who at times sold McLean drugs. McLean wanted to sell 

Manwaring household items and a car. McLean was acting oddly and handed 

Manwaring his phone to check a text message; when Manwaring did so, he saw that 

McLean had typed, "Just killed a bitch." When Manwaring asked McLean who he had 

killed, McLean said, "Snitch. Snitch." Manwaring gave McLean the phone number of a 

person who was looking for a refrigerator. The next day Manwaring met McLean at 

Sutton's house to pay McLean for the car; when he walked in, McLean apologized about 

the smell of Sutton's body. McLean told Manwaring that his grandmother's body was in 

the garage in the trunk of the car. 

That weekend, McLean went to Jeffrey Gentry's house to sell the refrigerator. 

McLean did not have the refrigerator and Gentry observed he was rambling about getting 

rid of the trash, and said, "Snitches need stitches." At some point, McLean told Gentry 

he had killed his grandmother because she had snitched on him about his drugs, and he 

had "to take care of it." He also spoke about using his grandmother's credit card and 

money, and that she was starting to stink. According to Gentry, McLean said he had 

been talking to his uncle about his grandmother snitching on him, and his uncle said, 

"Well, you know what you need to do." Gentry threw McLean out of his house. 
6

McLean also met with Julian Calles to temporarily exchange Sutton's gold 

necklace for methamphetamine. McLean told Calles that his grandmother was "laying 

down and pissing him off," and that he hated her. 

Tori M. later told a detective that McLean was angry at Sutton for snitching on 

him. She also told police that McLean said he "did all kinds of stuff" to Sutton's body 

before dumping it. 

The Police Search Sutton's House

Police searched Sutton's home on the evening of Sunday, July 14, 2013, after 

Sutton's daughter Andreana Arriaga reported her mother missing. Arriaga and her 

husband had come to Sutton's home at about 9:30 that night after not hearing from her for 

several days; when they arrived Arriaga found the back door wide open, the house in 

disarray and McLean at his computer looking "out of it" with Sutton's car keys next to 

him, causing Arriaga to be alarmed. When Arriaga asked McLean where Sutton was, he 

told her he did not know. Arriaga believed McLean was lying because she knew he had 

told a neighbor Sutton would be back by 9:00 p.m. She ran outside and called police. 

Murrieta police sergeant Scott Montez responded with other officers to the 

missing persons call at Sutton's house. Although Sutton usually kept her house very 

meticulous, it was messy and smelled strongly of bleach. A garden shovel was in the 

front lawn and a side fence was broken. Around the house and garage someone had 

placed and turned on several fans. Sergeant Montez noticed that a piece of carpet 

between the garage and McLean's room had been cut out. The sergeant found 

methamphetamine and a methamphetamine pipe in McLean's bedroom. Tire tracks 
7

found in the backyard indicated someone had driven a small car into it. The carpet liner 

had been removed from the trunk of Sutton's car. 

An investigating officer observed that McLean appeared unconcerned when told 

they were investigating his missing grandmother. He initially told the officer that he had 

not been home but had been with friends for a few days and had not seen her, then he 

changed his story and said he had seen his grandmother that morning. Sergeant Montez 

arrested McLean for the drugs. While leaving the scene, McLean told another officer that 

he had seen Sutton in the morning and washed fertilizer out of the trunk of her car after a 

bag of fertilizer broke as he was removing it. McLean told that officer he left in Sutton's 

car at about 10:00 a.m., met friends at a mall, and returned about 7:30 p.m., where he 

found the rear sliding door open and his grandmother gone. Police found Sutton's credit 

card in McLean's bedroom, as well as a sheathed machete still in its original store 

packaging in a large plastic bin. Sutton's security surveillance system had been pried 

open and the hard drive removed. 

A few days later, police were called out again to Sutton's house, where they were 

directed to a box that had been under McLean's bed containing a ring that Sutton never 

removed, as well as Sutton's three checkbooks, a receipt, and a checkbook register. 

Several checks appeared as if someone had been trying to write Sutton's name on them, 

numerous times in different ways. One of the checks was dated July 11, 2013.

Prosecution's Trial Evidence Concerning Sutton

At trial, Arriaga testified she had a good relationship with Sutton, and described 

her as a caring, giving and loving mother and grandmother who was very happy at that 
8

time in her life. Though Arriaga admitted Sutton had a temper and would yell when she 

was angry, she testified Sutton was not a violent person and Arriaga had never seen her 

injure or hit anyone. Arriaga testified that she had no reason to believe her mother would 

ever be physically violent with anyone unless she was being attacked herself. She 

agreed, however, that her mother was a paranoid person; Sutton thought someone was 

stalking her, was concerned for her safety, and had installed a security alarm and dummy 

cameras in her house to deter roommates from interfering with her possessions. On 

cross-examination, Sergeant Montez testified that based on his prior contacts with Sutton, 

he felt she was "a little paranoid."

Defense Evidence

Catherine McLean2 testified that her mother was very loving, but had a lot of 

mental health issues and engaged in verbal and physical abuse. Sutton directed foul 

language at her and McLean, and as she got older her personality switched "all the time"

from kind and calm to verbally abusive. According to Catherine, they could not predict 

Sutton's changing behavior and there was nothing they could do to stop it. Sutton could 

"flip on and off" within five minutes or for days. Catherine testified that she saw Sutton 

get physically aggressive with McLean, who was "all whacked out on drugs," and 

Catherine had to tell Sutton she could not do that. Sutton also engaged in physical abuse 

with Catherine, as well as the kids and grandkids, in that she would "jump on you,"

"pull[] hair," and "throw things at you." 

 

2 We refer to Sutton's daughter Catherine McLean by her first name to avoid 

confusion.
9

McLean testified in his defense at trial. He stated he had been up several nights 

before July 11, 2013, using heroin, smoking methamphetamine, drinking alcohol and 

taking Xanax. On the morning of Sutton's death, McLean and his friends were taking 

Xanax and drinking alcohol, and he was "smoked out" with his mind "gone." After the 

vandalism incident and his release from police custody, McLean walked the three to five 

miles back to Sutton's house because nobody came to pick him up. When he entered the 

house, Sutton was instantly upset and started arguing with him, frustrating McLean, who 

just wanted to shower and leave to meet his friends. McLean admitted he was acting 

paranoid and irrationally with the alarm technician. According to McLean, when he got 

out of the shower, Sutton continued to argue with him while he smoked a cigarette 

outside, drank a beer, and took out the trash; she told him she wanted to talk and did not 

want him to leave, causing the frustration to build between them. Sutton also 

admonished McLean to "get your ass in the backyard" if he were going to smoke 

cigarettes. McLean returned to his room where Sutton continued to argue with him until 

his phone rang. When he finished his call, Sutton returned and asked who he was talking 

to, and told him she needed his help on some things first before she would let him use her 

car. 

McLean testified that he did not intend to help Sutton and started getting his things 

together. After trying to make another call, he went outside to smoke another cigarette, 

which made Sutton upset again, so he put it out and got his things. Sutton told him she 

was not going to let him borrow her car, calling him a loser and a drug addict, and he told 

her he was leaving. According to McLean, Sutton was following him and yelling at his 
10

back, then she grabbed his arm, scratching him. McLean told Sutton to "back the fuck 

off" of him and threatened that he could get her in trouble for scratching him, but Sutton 

responded that she would just call the police and tell them he hit her, and they would 

believe her because she was an old woman. McLean testified that he got "pissed" and she 

got "physical" with him again. They were yelling at each other and started getting into a 

fight: "She's scratching me and [I'm] pushing her—pushing her off of me. She falls 

down. I trip over her and fall down to her. . . . [¶] . . . We get in a fight. Tussle. 

Whatever." 

McLean testified that he then "snapped" because he "had enough of her shit." 

"And once I fell on the floor, like when she scratched me again and caused those big 

[scratches], I pushed her down. When I pushed her, I pushed myself too hard, and I fell 

on top of her, and I fell down on the ground with her and just—I don't know. Snapped." 

When asked how he thought Sutton died, McLean testified: "She died because when I

fell to the floor, we started, like, kind of getting into like a wrestling thing, and I—and I 

choked her. That's when I blacked out." McLean described himself as having an "out-ofbody experience." When he came back to consciousness he got up, fixed himself and 

walked away, but after a few moments he called over to Sutton and asked whether she 

was alright. McLean described himself as in shock and disbelief, and panicked. When it 

dawned on him that he could not leave Sutton outside, he put her in the trunk of her car 

and met his friends at the gas station. McLean denied that Sutton had a belt around her 

neck or that he punched her body. 
11

According to McLean, he lied to Erickson when he said he killed Sutton because 

she snitched on them about the vandalism because he was scared and trying to act 

"tough." It was Erickson's idea to get supplies to dispose of Sutton's body and to clean 

the house of fingerprints and McLean's blood. McLean admitted to saying, "Snitches get 

stitches," and, "You snitch, you die," but claimed he did so only to act like a "tough guy." 

Several days later, McLean bought a large tub into which he placed Sutton, drove to 

somewhere in the remote mountains in Yucaipa, and dropped the locked tub down a 

mountain cliff. 

McLean testified that as a child, he had been told that Sutton was bipolar, 

schizophrenic, and "just crazy." According to him, Sutton could be a nice grandmother 

and then minutes later be very aggressive, argumentative and hostile. He testified fights 

with her "never stop[ped]"; that they could have resting points but would pick back up, 

and could be verbal to physical. Her verbal confrontations could be explosive and always 

included profanity. McLean saw physical fights between his mother and aunt and Sutton 

when he was younger, and as he described it, Sutton would either argue or "just flat out 

haul out and just start smacking you up." McLean stated that as Sutton aged, she was 

more verbal in her fights. He referred to Sutton's tendencies as "outbreak[s]" or a "burst 

of fury." McLean's lifestyle and his comings and goings caused confrontations with 

Sutton involving screaming and arguing; the confrontations were "out of proportion" and 

not logical or rational. There were repeated "giant" fights involving yelling and 

swearing. 
12

McLean denied being angry with or blaming Sutton in connection with his arrests 

on either June 24 or July 11. He testified he had no reason to hate her and did not want to 

do away with her. He testified that Sutton was disappointed in him and embarrassed 

about having police show up at her house.

Jury Instructions 

The trial court instructed the jury on the lesser included offense of voluntary 

manslaughter based on the theories of sudden quarrel or heat of passion on involuntary 

manslaughter, and the effects of voluntary intoxication on a homicide. McLean's counsel 

did not request, and the court did not give, an instruction on voluntary manslaughter 

based on imperfect self-defense.

DISCUSSION

I. Legal Principles Relating to Unreasonable Self-Defense and Standard of Review

"Unreasonable self-defense is 'not a true defense; rather, it is a shorthand 

description of one form of voluntary manslaughter.' " (People v. Elmore (2014) 59 

Cal.4th 121, 134; People v. Barton (1995) 12 Cal.4th 186, 200.) " ' "Under the doctrine 

of imperfect self-defense, when the trier of fact finds that a defendant killed another 

person because the defendant actually, but unreasonably, believed he was in imminent 

danger of death or great bodily injury, the defendant is deemed to have acted without 

malice and thus can be convicted of no crime greater than voluntary manslaughter." ' "

(People v. Manriquez (2005) 37 Cal.4th 547, 581; see also People v. Duff (2014) 58 

Cal.4th 527, 561.) Though so-called "perfect" self-defense requires an actual and

reasonable belief in imminent danger of death or great bodily injury, imperfect self-
13

defense requires only an actual but unreasonable belief in the same imminent danger of 

death or great bodily injury. (People v. Iraheta (2014) 227 Cal.App.4th 611, 620.) " 'The 

doctrine [of imperfect self-defense] is narrow. It requires without exception that the 

defendant must have had an actual belief in the need for self-defense. . . . Fear of future 

harm—no matter how great the fear and no matter how great the likelihood of the harm—

will not suffice. . . . " '[T]he peril must appear to the defendant as immediate and present 

and not prospective or even in the near future. An imminent peril is one that, from 

appearances, must be instantly dealt with.' " ' " (Manriquez, 37 Cal.4th at p. 581; see 

also People v. Butler (2009) 46 Cal.4th 847, 868.)

Because voluntary manslaughter is a lesser included offense of murder (People v. 

Duff, supra, 58 Cal.4th at p. 561), the court must instruct sua sponte on the lesser offense 

"whenever there is evidence in the record from which a reasonable jury could conclude 

the defendant is guilty of the lesser, but not the greater, offense." (Ibid.; People v. Moye 

(2009) 47 Cal.4th 537, 556; People v. Cook (2006) 39 Cal.4th 566, 596 [court must 

instruct on lesser offense when "there is substantial evidence that defendant committed 

the lesser included offense, which, if accepted by the trier of fact, would exculpate [him] 

from guilt of the greater offense"]; People v. Manriquez, supra, 37 Cal.4th at p. 584.) In 

particular, "[t]he court's duty to instruct on voluntary manslaughter under an imperfect 

self-defense theory arises ' "whenever the evidence is such that a jury could reasonably 

conclude that the defendant killed the victim in the unreasonable but good faith belief in 

having to act in self-defense." ' [Citation.] 'In a murder case, trial courts are obligated to 

instruct the jury on defenses supported by substantial evidence that could lead to 
14

conviction of the lesser included offense of voluntary manslaughter, even where the 

defendant objects, or is not, as a matter of trial strategy, relying on such a defense.' 

[Citation.] Substantial evidence is not ' " 'any evidence, no matter how weak,' " ' but 

evidence from which a reasonable jury could conclude that the defendant was guilty only 

of manslaughter." (People v. Valenzuela (2011) 199 Cal.App.4th 1214, 1227-1228.)

In deciding whether there is substantial evidence of a lesser included offense, we 

do not evaluate the credibility of the witnesses, a task for the trier of fact. (Manriquez, 

supra, 37 Cal.4th at p. 585.) If the evidence in support of the lesser offense is " 'minimal 

and insubstantial,' " the court need not give the instruction. (People v. Barton, supra, 12 

Cal.4th at p. 201.) We independently review the question of whether the trial court erred 

by failing to instruct on a lesser included offense, considering the evidence in the light 

most favorable to McLean. (Manriquez, at p. 587; People v. Brothers (2015) 236 

Cal.App.4th 24, 30.)

II. Contentions

McLean contends there was ample evidence to require an instruction on imperfect 

self-defense, including his testimony that "Sutton attacked him and he killed her while 

fighting back."3 He maintains his testimony was consistent with that of others that 

Sutton suffered from mental health issues, causing her to be paranoid, aggressive and 

 

3 McLean also contends at this point in his brief that the evidence warranted 

instruction on perfect self-defense as well. A self-defense instruction would have advised 

the jury in part that McLean may have been entitled to defend himself against Sutton, but 

could not use force beyond that which would appear reasonably necessary to prevent 

imminent injury. (CALCRIM No. 505.) McLean did not develop any such argument 

elsewhere in his brief, and we do not address it. 
15

violent. According to McLean, the court's error denied him his constitutional right to 

have the jury determine every material issue presented by the evidence, and must be 

reviewed under the federal Chapman v. California (1967) 386 U.S. 18 standard of 

harmless error, requiring reversal unless the court can determine that the jury's verdict 

was surely unattributable to the erroneous instruction. He further argues that this court 

should find prejudice under the state People v. Watson (1956) 46 Cal.2d 818, 836

standard of harmless error, and conclude there is a reasonable chance he would have 

achieved a better result but for the error, because he gave the only testimony as to the 

precise circumstances of Sutton's death and there was nothing to contradict his version of 

events. 

The People respond that the evidence that McLean was guilty only of voluntary 

manslaughter based on imperfect self-defense was not substantial enough to merit 

consideration by the jury. They point out the evidence does not show McLean strangled 

Sutton out of an actual belief that she threatened to kill him or cause him great bodily 

harm; that there is no evidence of any threat let alone an imminent threat and McLean's 

claim amounts to unsupported speculation. 

III. Analysis

Our analysis is straightforward. Accepting the evidence in McLean's favor and 

reviewing it independently, we conclude the trial court correctly did not instruct the jury 

on imperfect self-defense. We look for evidence from which a reasonable jury could 
16

conclude McLean only committed voluntary manslaughter by killing Sutton out of an 

actual but unreasonable belief he was in imminent danger of death or serious bodily 

injury. McLean's version of events—that he engaged in a heated argument with 71-yearold Sutton, who followed him, then came at him and grabbed his arm, scratching him—is 

not evidence from which jurors could have concluded McLean acted with an actual, 

albeit unreasonable, belief that he was in any danger of death or great bodily injury. 

McLean did not testify or suggest he believed he was imperiled to such an extent by 

Sutton's actions. Indeed, he told her to back off and threatened to call the police. And 

after Sutton came at McLean again and scratched him, McLean "snapped" because he 

"had enough of her shit," and pushed Sutton down, falling on top of her, where they 

wrestled and he choked her. His own testimony suggests he acted not out of fear of 

imminent serious harm or death, but because his patience was exhausted by her actions.

Evidence that Sutton was bipolar or paranoid, and at times resorted to cursing and 

yelling or even physical abuse by pulling hair, throwing things or "jump[ing]" on family 

members, would not persuade a reasonable jury to infer that McLean actually or honestly 

believed he was in any imminent serious danger. (People v. Valdez (2004) 32 Cal.4th 73, 

116 [substantial evidence is evidence that a reasonable jury could find persuasive].) Such 

behavior, while incendiary and aggressive, does not suggest any tendency to resort to 

deadly force or conduct that would cause significant or substantial injuries. (See People 

v. Armstrong (1992) 8 Cal.App.4th 1060, 1066 ["Great bodily injury is bodily injury 

which is significant or substantial, not insignificant, trivial or moderate"].) Sutton's 

actions in getting "physical," coming from an unarmed 71-year-old woman against then 
17

21-year-old McLean, do not rise to the level of conduct that could cause McLean to 

perceive imminent danger of death or great bodily injury.

In short, the record is devoid of evidence suggesting that McLean strangled Sutton 

out of a belief that he was himself in imminent danger of being killed or seriously injured 

by her, which would preclude a finding of malice. At the same time, as we have set out 

in detail above, the record contains abundant direct and circumstantial evidence that 

McLean decided to kill Sutton because he believed she had reported him to police. The 

circumstances of his arrests, his ensuing anger toward Sutton, his use of a belt to strangle 

her, and his actions after her death in bragging about the killing, as well as his efforts to 

conceal and dispose of her body, all point to a deliberate and premeditated killing. (See 

People v. Koontz (2002) 27 Cal.4th 1041, 1080-1082; People v. Shamblin (2015) 236

Cal.App.4th 1, 10 [the process of premeditation and deliberation does not require any 

extended period of time; it is the extent of the reflection not the length of time, and 

strangulation as a manner of killing is sufficient evidence of premeditation and 

deliberation because its prolonged nature provides ample time for the killer to consider 

his actions], quoting People v. Hovarter (2008) 44 Cal.4th 983, 1020 ["This prolonged 

manner of taking a person's life, which requires an offender to apply constant force to the 

neck of the victim, affords ample time for the offender to consider the nature of his 

deadly act"]; People v. Davis (1995) 10 Cal.4th 463, 510 [manner of killing alone by 

strangulation supported conviction for first degree premeditated murder].) The trial court 

did not err by declining to instruct the jury on the theory of imperfect self-defense.
18

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

NARES, J.