P. v. Simril

Filed 8/28/06 P. v. Simril CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark V. Mooney, Judge. Affirmed and remanded with directions.

William J. Capriola, 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, Senior Assistant Attorney General, Linda C. Johnson and Lisa J. Brault, Deputy Attorneys General, for Plaintiff and Respondent.

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Robert Simril was charged with murder, with an allegation that he used a knife. (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1).)[1] A jury acquitted him of murder but deadlocked on the lesser included offense of manslaughter and a mistrial was declared. An amended information was filed charging manslaughter with the use of a knife (§§ 192, subd. (a), 12022, subd. (b)(1)), with an allegation that Simril had served a prior prison term within the meaning of section 667.5, subdivision (b). A jury convicted him as charged, and he then admitted the prior prison term allegation (which the court later struck). He was sentenced to state prison for a term of seven years. Simril appeals, claiming instructional error and contending he did not receive a sufficient number of credits. We reject his challenges to the instructions but remand with directions to modify the abstract of judgment with regard to credits.

FACTS

As Simril came out of the Sanborn Hotel and walked down Main Street between Fifth and Sixth Streets, he was approached by David Reavis who asked Simril for money he owed to Reavis. Simril ignored Reavis and kept walking. Reavis followed Simril, repeatedly asking for the money. A crowd gathered and encouraged a fight. Reavis pushed Simril against a rolled-down metal door. Simril got up, started to move toward Reavis, and punched him. Reavis backed up toward the curb, bumped into a parked car, flipped over the car and landed on his back in the street.

Simril went into the street, bent over Reavis, and punched him as he lay on the ground. Reavis told Simril he had been â€