P. v. Gentry

Filed 3/23/06 P. v. Gentry CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. James Stuart, Judge.

Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Stan Cross, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

Appellant Timothy Lloyd Gentry stands convicted, following a jury trial, of voluntary manslaughter (Pen. Code,^[1] § 192, subd. (a)) as a lesser included offense of murder. He was found to have used a knife in commission of the offense (§ 12022, subd. (b)(1)), and, following a bifurcated court trial, to have suffered a prior conviction for a serious felony (§ 667, subd. (a)) that was also a strike (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)). He was sentenced to a total term of 18 years in prison, and filed a timely notice of appeal.^[2] For the reasons which follow, we will direct the trial court to correct a particular minute order and the abstract of judgment, but we will reject appellant's claims of trial and sentencing error and affirm the judgment.

FACTS

I

PROSECUTION EVIDENCE

On July 19, 2003, Andres Gonzalez lived in a triplex on Village Avenue in Shafter. That afternoon, he was cleaning his truck in the carport in back of the apartments when appellant and Jennings arrived in a car and then walked to the storage unit belonging to Anthony Elizalde, another resident of the triplex.^[3] They tried to open the screen door with what appeared to be a screwdriver. When this went on for four or five minutes, Gonzalez told his wife to go get Elizalde. He then returned to cleaning his truck.

Robert Montez, Elizalde's nephew, came outside first. By this time, appellant had walked back from his car, holding a knife, and he and Jennings had managed to open the storage unit door with it. They had a cordial conversation with Montez, who then left. Appellant and Jennings began moving items from the storage unit to their vehicle. Jennings said she wanted her belongings.

Elizalde was asleep inside his apartment, but got up when Montez returned. Shortly after, Amanda Golden, his niece, saw Elizalde walking toward the storage units. She did not see anything in his hands, and his fists were not balled up. He then passed out of her sight. Gonzalez subsequently saw appellant carrying a small black boom box/radio, which belonged to Elizalde, as he exited the storage unit. Walking quickly and with an aggressive stance, Elizalde approached him with his hands in fists but down at his sides.^[4] He walked right into appellant and, having raised his hands to about chest height, knocked him back into the storage unit. Gonzalez believed, from Elizalde's posture, that he was going to fight appellant, but he could not see what happened inside the storage area. The door was the only way in or out of the small unit.

The two men were in the storage unit for five to ten seconds, then appellant ran out and went toward his car. Gonzalez could see the knife in his hand. Jennings, who had been in the hallway, was right behind him. Elizalde walked out, â€