Filed 3/8/13 P. v. Butler CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
KAREN BUTLER,
Defendant and
Appellant.
F063819
(Super.
Ct. No. MCR040734)
APPEAL from
a judgment of the Superior Court of
Suzanne M.
Morris, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari L.
Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted appellant, Karen Butler of possessing a
weapon while confined in a penal institution (Pen. Code, § 4502, subd. (a)).
true an allegation that Butler had a prior conviction within the meaning of the
“Three Strikes†law (§ 667, subds. (b)-(i)).
On November 4, 2011, the court
sentenced Butler to a four-year term (the mitigated term of two years doubled
because of Butler’s prior strike conviction), which it imposed consecutive to
the term Butler was serving when she committed the possession offense.
On appeal, Butler contends: 1) the court committed
denied the effective assistance of counsel.
We affirm.
FACTS
On the evening of February 14,
2011, Correctional Officer Alicia Benafield was conducting a count at Valley
State Prison for Women when she saw Butler standing at the window of the door
to her cell. Butler asked to speak with
“the sergeant.†Benafield told her that
as soon as she completed the count she would call the sergeant and tell him
Butler would like to speak with him. She
also told Butler to go sit down on her bunk.
All the other inmates in Butler’s cell were on their bunks at the
time. Benafield continued down the hall
taking the count and did not hear anything from Butler’s cell. Approximately two minutes later when she was
at the cell across from Butler’s cell, Benafield saw Butler at the window of
her cell door swinging an object in a white sock. She also heard Butler say, “I’m going to hit
you bitches.†Benafield pressed an alarm
which alerted other staff that an inmate might be in
drop the weapon and Butler complied.
Benafield recovered the weapon, which turned out to be a slug made from
a lock inside a sock. During the time
that Benafield observed Butler, the other inmates in her cell were on their
bunks.
Correctional Sergeant John Alvara
spoke with Butler after the disturbance in her cell. Butler told him if they put her back in the
same cell she would do something so that they would have to take her out of the
cell again.
Butler was also examined by a nurse
after she was removed from her cell. The
nurse found a small bruise on Butler’s
small scratches on her back. When asked
to make a brief statement about the incident in her cell, Butler stated she
wanted to hurt her cellmates.
Butler testified that she had been
in the cell where the incident occurred less than two weeks. Seven other women were assigned to the cell
including three women she described as bullies.
These three women would speak in Spanish and would call Butler
names. On February 14, 2011, just before
9:00 p.m., Butler got into an argument over a table with the shortest woman of
the trio of bullies. When Butler and the
short woman were about to fight, the largest woman of the trio told Butler,
“You hit her, you are going to have to hit me.â€
The third woman then told Butler that if Butler hit her girlfriend, she
was going to join the fight too. At some
point the large woman pushed Butler causing her to bump her left shoulder into
a locker, which created a small bruise on the shoulder. The short woman then attempted to swing at
Butler and wound up scratching her.
Meanwhile the third woman stated, “You guys, that’s how you want to do
it, let’s do it this way.†Butler felt
intimidated and scared so she went to her bed area and got the lock.
According to Butler, throughout the
course of the day the three women had been threatening her and calling her
names. However, Butler did not report
this to any officer because she did not want to be known as a “snitch†as this
would have put her in more danger.
After she was pushed into the
locker, Butler went to the door to her cell and started kicking it to get an
officer’s attention. Three minutes later
when Benafield came to the door, Butler told her she needed to get Butler out
of the cell, she was having problems, and she needed to see a sergeant. Benafield told her she could not do it then
because it was almost time for the count and she would take care of it
afterwards.
Butler then went to her bed area,
took the lock off her drawer and put it in a sock because the three bullies
were cussing at her in Spanish. However,
she did not swing the lock or attempt to strike the women with it. Instead, since she knew Benafield would be
across the hall, Butler placed the lock on her cell door window so that it
would make a clank sound and get her attention.
As expected, Benafield was in the hall across from Butler’s cell and
heard the sound. The officer turned
toward Butler and told her to put that weapon down. Butler was afraid of the three women and
replied, “Get me out of this room. I’m
not playing with you, Miss Benafield. I
need to get out this room and see the sergeant.†Butler also said she was going to hit the
three women. Benafield told Butler to
get down in the prone position and she complied.
According to Butler when Benafield
walked two cells down the hall the three bullies were standing up and they sat
down when she came back to the window.
Throughout this incident the three bullies were saying threatening
things to her and at one point Butler told them, “I [sic] going to hit all you bitches.â€
Butler was afraid the three bullies were going to beat her up and all
she wanted to do was get out of the cell.
She also knew that if the officers saw the lock in the sock they would
take her out of the cell. Butler
admitted telling Sergeant Alvara that if they put her back in the cell she
would do something again so that they would have to take her out. She told the nurse she would hurt the three
women before they hurt her.
DISCUSSION
The Alleged Instructional Error
Butler
contends the court erred by its failure to charge the jury sua sponte with an
instruction on self-defense. We disagree.
A trial
court has a sua sponte duty to instruct regarding a defense if there is
substantial evidence to support it and the defense is consistent with the
defendant’s theory of the case. (
1047.)
In People v. Saavedra (2007) 156 Cal.App.4th 561 the court held that
the defense of self-defense is available in very limited circumstances to an
inmate charged with illegally possessing a weapon in prison. (Id.
at p. 569.) In so holding, the court
explained:
“… It is well established that
a prison inmate charged with a violation of section 4502 cannot raise the
defense of self-defense based on a claim that a weapon was possessed for
protection from an anticipated, future attack.
(People v. Crenshaw (1946) 74
Cal.App.2d 26, 29-30; People v. Velasquez
(1984) 158 Cal.App.3d 418, 420.)
However, the courts have recognized in dicta that it may be permissible
for an inmate to raise a narrow claim of self-defense when the inmate was
‘confronted with an emergency that ... justified his seizing one of the
prohibited weapons in order to protect himself.’ (People
v. Crenshaw, supra, 74 Cal.App.2d
at p. 30, italics [omitted]; see People
v. Evans (1969) 2 Cal.App.3d 877, 881-882, disapproved on other grounds in
591, 595-596; People v. Purta (1968)
259 Cal.App.2d 71, 74; People v.
Velasquez, supra, 158 Cal.App.3d
at pp. 420-421.) As stated by the
justify violation of the statute where
the prisoner was under imminent mortal attack, had no opportunity to seek
protection of the authorities, and temporarily seized a prohibited weapon
“A rule precluding reliance on
self-defense when an inmate arms himself or herself in anticipation of an
attack is consistent with the general principle that self-defense operates as a
defense only when the threat of bodily harm is immediate and present; fear of
harm even in the near future is insufficient.
(People v. Humphrey (1996) 13
Cal.4th 1073, 1082.) Further, a
concomitant rule allowing an inmate to raise self-defense when he or she
temporarily seizes a weapon as a protective measure in response to an emergency
is consistent with the established rule that a convicted felon charged with
possession of a firearm may raise self-defense if the firearm only became available
during an emergency and was possessed temporarily in response to the emergency
and there was no other means of avoiding the danger. (People
v. King, supra, 22 Cal.3d at p.
24; see § 12021, subd. (h)(1)(A), (B) [convicted felon’s possession of
firearm justifiable if convicted felon ‘found the firearm or took the firearm
from a person who was committing a crime against him or her’ and ‘possessed the
firearm no longer than was necessary to deliver or transport the firearm to a
law enforcement agency’].)
“We conclude that allowance of
a narrow self-defense claim as suggested
in cases such as Crenshaw and Velasquez represents a correct balancing of
the policy concern that prison inmates be strictly forbidden from possessing
weapons [citation], and the firmly established principle that a person acting
in self-defense is not criminally culpable
[citation].†(
Cal.App.4th at pp. 568-569, fn. omitted, italics added.)
Here, while the three women were
allegedly poised to attack Butler, Benafield came to Butler’s cell while
counting the inmates and two to three minutes later she was at the cell
directly across from Butler’s cell.
However, on neither occasion did Butler advise Benafield that she had
been assaulted by the three women earlier that day, that the women were
threatening her, or that she feared she was in imminent danger of being
assaulted. The first time Butler simply
asked Benafield to allow her to speak with a sergeant. Further, although the second time Butler
asked to be removed from her cell, she did not explain why. Instead, she armed herself with a makeshift
weapon and made sure Benafield saw it in order to ensure that she was removed
from her cell. Thus, even assuming
Butler was “‘under imminent mortal attack’†(People v. Saavedra, supra, 156 Cal.App.4th at p. 568) when she made
a weapon out of the lock and sock, she was not entitled to assert a defense of
self-defense because she had the opportunity to seek the protection of prison
authorities in lieu of arming herself.
It follows that the court did not err by its failure to instruct on a
defense that Butler was not entitled to assert.
Moreover, Butler did not contend
she armed herself with the lock and sock in order to defend herself against the
three women. Instead, she unequivocally
testified that all she did with the lock and sock was hit it against the cell
door in order to get Benafield’s attention because she knew that possessing a
weapon would get her removed from her cell and away from the three women who
assaulted her. Thus we conclude the
court did not have a sua sponte duty to instruct on self-defense for the
additional reason that this defense was inconsistent with Butler’s theory of
the case.
The Ineffective Assistance of
Counsel Claim
“Ineffective assistance
of counsel
occurs when (1) counsel fails to act in a manner expected of reasonably
competent counsel and (2) it is reasonably probable that a more
favorable outcome would have occurred absent the deficient performance. [Citation.]â€
(People v. Mejia (2012) 211
Cal.App.4th 586, 635.)
Butler contends the evidence
supported a claim of self-defense and therefore her defense counsel provided
ineffective representation by his failure to advance and develop a theory of
self-defense or seek an instruction on that defense. However, as explained above, the evidence did
not support a defense of self-defense because Butler had the opportunity to
seek help from prison authorities in lieu of arming herself and the defense was
inconsistent with Butler’s testimony and the defense theory of the case. Accordingly, we conclude defense counsel did
not provide ineffective representation by his failure to pursue or request an
instruction on self-defense.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Levy, J. and Cornell, J.
name="_ftn2" title="">[1] All
further statutory references are to the Penal Code.
