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The People v. Jerry Wayne Gentry

July 31, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JERRY WAYNE GENTRY, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F7304)

The opinion of the court was delivered by: Butz , J.

P. v. Gentry

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury acquitted defendant Jerry Wayne Gentry of attempted murder but convicted him of the following six offenses arising from an incident in which he used some "muscle" over a drug debt: false imprisonment; criminal threats; two counts of assault with a deadly weapon (knife and flashlight); battery with serious bodily injury; and sexual battery by restraint. (Pen. Code, §§ 236, 237, 422, 245, subd. (a)(1), 243, subd. (d), and 243.4, subd. (a), respectively.)*fn1 Enhancements were found for personal use of a knife in the false imprisonment, criminal threats, and sexual battery offenses; for personal infliction of great bodily injury in the flashlight assault; for a prior strike conviction; for a prior serious felony conviction; and for three prior prison terms. (§§ 12022, subd. (b), 12022.7, subd. (a), 1170.12, 667, subd. (a)(1), 667.5, subd. (b).)

Sentenced to a prison term of 25 years, defendant appeals. He contends the trial court erroneously: (1) admitted evidence of prior misconduct; (2) excluded defense evidence; (3) paraded before the jury a prosecution witness who refused to testify; (4) refused to instruct on discovery delays and juror unanimity, but instructed about not speculating why others were not being prosecuted; (5) denied a posttrial Pitchess*fn2 motion; and (6) sentenced incorrectly in light of section 654. We shall affirm the judgment.

FACTUAL BACKGROUND

The principal prosecution witnesses were Michael Ebert (the victim), April Collins, and Devin Chandler (through prior testimony).

Ebert testified that defendant summoned him one night in October 2009 to a rural location known as "the Ranch." Collins and Chandler took him there. Ebert owed defendant money on a methamphetamine deal.

Upon arrival, around midnight, Ebert was greeted with a punch in the mouth by some "bigger" guy, and told to sit in a chair. About 30 minutes later, defendant appeared. Things only went downhill from there.

Defendant, who had apparently just gotten "really high" with Collins, directed someone to get "ties." The "ties" were furnished, in the form of leather straps and a mouth ball. Then defendant, along with another person who had arrived, Jesse Bacon, proceeded to kick, punch, and beat Ebert, at times using a heavy (Maglite) flashlight.

During the lengthy ordeal, defendant, armed with a knife, also threatened to cut Ebert from head to toe, threatened to cut Ebert up and throw him in the woodpile, and, after pulling down Ebert's pants, tried to cut Ebert's penis with the knife and tried to sodomize Ebert with the flashlight. Defendant repeatedly asked Ebert if he wanted defendant to "screw him." At one point, Ebert was stabbed in the elbow with the knife. During the beating, Ebert was knocked out several times.

The beating eventually ended when others on the premises implored defendant and Bacon to stop.

When Ebert was outside leaving, defendant told him if he did not return with the marijuana plants (which Ebert had offered as payment), defendant would find him and kill him.

Collins corroborated much of Ebert's account, but, during her short glimpses into the living room from her position in the kitchen, she never saw a knife or reported defendant with a flashlight (she did hear defendant, however, threaten to cut Ebert open).

After Chandler refused to testify at trial, some of his preliminary hearing testimony was read to the jury. Contrary to what he had told the police, Chandler testified at the preliminary hearing that he never saw anyone use restraints on Ebert, or anyone put a knife to Ebert's penis, or defendant or Bacon hit Ebert with anything.

Around 10 days after the incident, Ebert reported it to Agent Robert Carrell, his contact on the Shasta Interagency Narcotics Task Force (SINTF), for which Ebert had been an informant. And, according to jailhouse Deputy Sheriff Jack McCormick, defendant stated to him after the incident--perhaps jokingly, while asking McCormick to make photocopies of some police reports in this matter--that he (defendant) never did anything with a flashlight, but he grabbed the man's genitals and threatened to cut them off with a knife. McCormick did not write a report about this until six months later, and only then at Agent Carrell's prompting.

We will set forth other pertinent facts as we discuss the issues involving them.

DISCUSSION

I. Evidence of Defendant's Prior Misconduct Admitted on Criminal Threats Charge

Defendant contends the trial court erroneously admitted on the criminal threats charge--under Evidence Code sections 1101 and 352--evidence of four ...


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