P. v. Dudgeon

Filed 5/12/06  P. v. Dudgeon CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of Riverside County.  Dennis A. McConaghy, Judge.  Affirmed.

            ORIGINAL PROCEEDING; petition for writ of habeas corpus.  Dennis A. McConaghy, Judge.  Denied.

            Neil F. Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, David Delgado-Rucci and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.

            Defendant was convicted by a jury of voluntary manslaughter as a lesser included offense of first degree murder.  The jury also found true an allegation that defendant personally used a deadly weapon, a knife.  The court imposed 12 years.  We affirm the judgment.

I

FACTUAL BACKGROUND

            Defendant was convicted of manslaughter for stabbing Amadore Banuelos during a fight.  He admitted the stabbing but claimed self-defense.  The only other witness to the fight was Lisa Tonloy, Banuelos's girlfriend.  Both Tonloy and defendant testified at trial, and both gave recorded statements to law enforcement shortly after the stabbing.

            A.            Tonloy's Trial Testimony

            On the evening of July 1, 2004, Banuelos, Tonloy, and others were at Banuelos's residence drinking and dancing.  About 9:30 or 10:00 p.m., Banuelos and Tonloy went out to look for Banuelos's brother, who had left the residence sometime earlier.  On their way back, they drove down defendant's street, a dirt road.

            Back at home, Banuelos pulled his car into his driveway and parked.  Tonloy saw defendant get out of his truck and stand in front of it, with the headlights on and the engine running.  Defendant yelled, â€