P. v.
Filed 4/18/13 P. v. Butler CA2/3
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and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
Donta T. Butler,
Defendant and Appellant.
B242709
(Los Angeles
County
Super. Ct.
No. TA122295)
APPEAL from
a judgment of the Superior Court
of
County, Paul Bacigalupo, Judge. Affirmed.
California
Appellate Project, Jonathan B. Steiner and Cheryl Lutz, under appointment by
the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
Defendant
and appellant Donta T. Butler appeals from the judgment entered following
his plea of no contest to two counts of attempted
murder (Pen. Code, §§ 664, 187, subd. (a)),
and his admissions that during the offenses he personally used a firearm
(§ 12022.53, subd. (b)) and, with regard to the attempted murder
alleged in the first count, the offense was committed for the benefit of, at
the direction of and in association with a criminal
street gang (§ 186.22, subd. (b)(1)(C)). The trial court sentenced Butler
to 30 years 8 months in prison. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
In March 2012, Los Angeles County
Deputy Sheriff Paul Carmona was assigned to “patrol†at the Compton
Station. During the late evening hours
of a day early in the month, Carmona received a call regarding a shooting at 14502
South Keene Street in Gardena. Carmona went to the address and spoke with
one of the victims, Dywan Callahan.
Callahan
told the deputy that he and two acquaintances, Gerard Williams and Quondale
Rising, had been standing in the driveway when he saw two men wearing black
hooded sweaters walk by. After he heard
one of the men ask for “some weed,†the shorter of the two men began shooting a
gun at Callahan and the other two men.
At the time of the shooting, Callahan, Williams and Rising were standing
next to a black Chevy Monte Carlo parked in front of the house. Callahan “ran behind the vehicle[],†which
belonged to Rising.
Carmona
also interviewed Williams. Williams,
too, indicated that, while he was standing with Callahan and Rising, two men in
black hooded sweaters walked by.
Williams stated he heard the taller of the two men ask for “some
weed.†The shorter man then began
shooting at Williams.
Rising told
the deputy that he had been leaning against his vehicle when two men walked
by. He overheard one of the men ask for
“some weed†and then the shorter of the two men began shooting at him. The man fired approximately four or five
shots.
Carmona
then spoke with a woman, Krista Wallace, who had been inside the house at the
time of the shooting. She stated that
she heard “approximately five shots†fired.
When
Carmona inspected the area, he saw bullet holes in Rising’s car and in one of
the windows of the house. Carmona
recovered an “expended bullet†from one of the holes in the car.
Just after midnight on March
4, 2012, Los Angeles County Deputy Sheriff Christopher Quintero and
his partner were at a 7-Eleven store on the north side of Rosecrans
Avenue.
Quintero heard six or seven gunshots and the deputies, who were wearing
uniforms and driving a marked patrol car, drove south, across Rosecrans to Keene,
then turned onto 144th Street
to the area where they believed the shots had been fired.
After
turning onto 144th Street,
Deputy Quintero saw a “dark-colored Dodge Charger†turning onto 144th from a
street named Bahama. At first the car
accelerated, then the deputy saw its brake lights go on. As he drove faster to catch up with the
Charger, Quintero saw “two males running in the middle of the street.†The Charger then accelerated again and drove off
at a high rate of speed.
Quintero
pulled his car up behind the two men who were running. After turning and looking in the deputies’
direction, one man ran south, across 144th Street,
while the other man ran north. Quintero
was able to continuously watch the man who ran north and he could see that he
was holding a handgun in his right hand.
Quintero followed the man until he was approximately 10 feet from him,
stopped his car and aimed his gun, which he had earlier pulled from its
holster, at the suspect. The man, who
was next to a wall and still holding a gun, stopped and pivoted so that his
face and upper body were facing Quintero.
Fearing for his and his partner’s life, Quintero fired his own weapon
five times, hitting the man in his right forearm. The man, who Quintero later identified as Butler’s
codefendant, Michael Atkins, then dropped his gun onto the hood of Quintero’s
vehicle and put both his arms out to the side. Quintero “detained [Atkins] at
gunpoint†and called for additional units.
Paramedics also came to the scene.
A short
time later, Quintero was transported by other deputy sheriffs “out to the
field.†There, he was “shown the suspect
that they had detained to confirm that it was the person†he had seen run south
on 144th Street. Quintero identified the second suspect, whom
he referred to as “Donta Smith.â€
On March 4, 2012, Michael Kurinij was a
detective with the Operations Safe Streets Bureau, a “gang detective unit for
the Los Angeles County Sheriff’s Department.â€
He was assigned to the Compton Sheriff’s station and was one of the
deputies who responded to the “deputy-involved shooting that took place [that
night at] Central and 144th Street.†There, Kurinij recognized Atkins as a member
of the Swamp Crips gang. Kurinij was
also familiar with Butler, who was
a member of the same gang and had the gang’s logo tattooed on his right
forearm.
After
responding to the location where the officer-related shooting occurred, Kurinij
began to listen to “radio traffic†and he realized that there had been a
shooting on South
Keene Street, just “two-and-a-half blocks from the
location of the deputy involved shooting.â€
Kurinij went to the address on South Keene
Street “to ensure that a first report was being
taken by deputy personnel and to begin [an] investigation.†After learning that there had been two men
involved in the Keene Street
shooting, Kurinij believed that Atkins was a suspect and that it was likely the
second suspect was also a member of the Swamp Crips gang. Kurinij then heard a radio broadcast that the
second suspect had been taken into custody and had been identified as Butler.
Kurinij
went to the location where Butler was being detained. Based on the number of bullet casings which
had been recovered at Keene Street, Kurinij believed a second gun, one other
than the one recovered from Atkins, had been used during the shooting. Kurinij retraced the route he believed Butler
had taken when he ran from Quintero and found a gun. There were “expended casings in the gun,†but
“[t]he projectiles were gone.†Kurinij
later interviewed Butler in the back seat of a patrol car at the corner of
Bahama and 144th Street. After advising
Butler of his Miranda
rights, Kurinij asked him if, during the incident on Keene Street, he had had a
revolver. Butler indicated that he had
and that Kurinij had “ ‘found it.’ â€
Later, at
the police station, Kurinij again interviewed Butler. After Kurinij spoke to Butler about a
shooting which had occurred approximately one year earlier during which one of
Butler’s friends had been killed and Butler had been wounded by members of the
Campanella Camp Parks gang, Butler admitted that he had been walking through
that gang’s territory “looking to get revenge . . . for what had [happened to
his friend] and to him.†Butler told
Kurinij that, as he and Atkins walked past the three victims, “he recognized
them as hanging out with Campanella and that he fired his firearm at
them.†He and Atkins then ran to 144th
Street. However, when they realized a
police car was following them, the two men split up. Butler ran south. When he then heard gunfire, he threw his gun
down and hid. Butler was detained by
deputies at approximately 4:00 o’clock that morning.
During
second and third interviews Kurinij had with Butler, he indicated he had been
“forced to do [the Keene Street shooting] by members of the Swamp Crip gang and
that he feared retribution from them if he did not do it.â€
Kurinij
also interviewed Atkins. The detective
interviewed him on March 5, 2012 at the county hospital. After a time, Atkins indicated he was the
individual who had “asked [the] three victims about the weed.†He then stated he had fired one round at the
three men “after hearing gunfire next to him.â€
Kurinij indicated that, of the two men, Atkins and Butler, Atkins is the
taller.
2. Procedural
history.
In an
amended information filed May 8, 2012, Butler was charged with three counts of
attempted willful, deliberate and premeditated murder (§§ 664/187,
subd. (a)) (counts 1, 2 and 3), each of which was characterized as a
serious or violent felony (§§ 1192.7, subd. (c)(8), 667.5, subd. (c)(8))
in that he had personally and intentionally discharged a firearm, a handgun (§
12022.53, subd. (c)) and committed the offenses to promote, further or assist
in felonious conduct by members of a criminal street gang (§ 186.22, subd.
(b)(1)(C)). It was further alleged with
regard to the attempted murders that, if life sentences were imposed, Butler
was required to serve at least 15 calendar years of those sentences in
§ 1170, subd. (h)(3)). Butler was
also charged with shooting at an inhabited dwelling (§ 246) (count 6), a
serious felony (§ 1192.7, subd. (c)), committed for the benefit of, at the direction
of, and in association with a criminal street gang (§§ 186.22, subd. (b)(1)(C),
1192.7, subd. (c)(28)). It was again
alleged that any time to which he was sentenced for the offense was to be
served in state prison (§ 1170, subd. (h)(3)).
At
proceedings held on May 24, 2012, Butler indicated that he was willing to
accept an offer the People had made for a term in state prison of 30 years and
eight months.
title="">[4] In exchange, Butler would plead no contest to
“two counts of [second degree] attempted murder with firearms [and gang]
allegations.â€
After waiving his right to a court
or jury trial, his right to confront and cross-examine the witnesses against
him, his right to use the subpoena power of the court to “bring in witnesses to
testify on [his] behalf free of charge,†his right to present a defense and to
testify on his behalf and his right to remain silent, Butler pled no contest to
the attempted murder of Dwyan Jonte Callahan as alleged in count 1 and admitted
the allegations that the offense was “committed for the benefit of, at the
direction of, or in association with a criminal street gang, within the meaning
of . . . section 186.22[, subdivision] (b)(1)(C)†and that during the
offense he “personally used a firearm within the meaning of . . . section
12022.53[, subdivision] (b).†With regard
to count 2, Butler pled “[n]o contest†to the charge he violated
“section[s] 664/187 in that [he] committed an attempted murder on Gerard
Quincy Williams†and admitted the allegation that he “personally used a firearm
in the commission of that offense, within the meaning of . . .
section 12022.53[, subdivision] (b).â€
The prosecutor and Butler’s counsel then “join[ed] in the waivers,
concur[red] in the plea[s], and stipulate[d] to a factual basis for the plea[s]
based upon the police reports and preliminary hearing transcript . . . .†The trial court found Butler had “expressly,
knowingly, intelligently, and understandingly waived [his] constitutional
rights,†that his “pleas and . . . admissions [had been] freely
and voluntarily made with an understanding of the nature and consequences†and
that there had been a “factual bas[is] for the pleas and for the admissions.â€
For his conviction of attempted
murder as alleged in count 1, the trial court imposed the low term of five
years in prison. For the “gang
allegation†and the “gun allegation,†the court imposed a term of 10 years for
each, for a total term of 25 years. For
the attempted murder alleged in count 2, the court imposed one-third the
mid-term, or two years and four months, and for the “gun use†during the
offense, the court imposed a term of three years four months. In total, the court sentenced Butler to
30 years 8 months in prison.
The trial court then dismissed the remaining charges and allegations.
After awarding Butler presentence
custody credit for 82 days actually served and 12 days of conduct credit, or 94
days, it imposed a $1,000 restitution fine (§ 1202.4, subd. (b)), a
stayed $1,000 parole revocation restitution fine (§ 1202.45), an $80 court
security fee (§ 1465.8, subd. (a)(1)) and a $30 criminal conviction assessment
(Gov. Code, § 70373).
Butler filed a timely notice of
appeal on July 18, 2012.
After examination of the record,
appointed appellate counsel filed an opening
brief which raised no issues and requested this court to conduct an
independent review of the record.
By notice filed December 28, 2012,
the clerk of this court advised Butler to submit within 30 days any
contentions, grounds of appeal or arguments he wished this court to
consider. On August 13, 2012, Butler
filed a document in which he asserted he had filed a notice of appeal because
he wished to argue that he had had ineffective assistance of counsel in the
trial court. However, on July 30, 2012,
the Administrative Presiding Justice of this court had filed an order
indicating that, “[i]n light of the fact that there is no certificate of
probable cause, the appeal, filed on July 18, 2012, is limited to
non-certificate issues.†As ineffective
assistance of counsel is not a non-certificate issue, we may not consider
it. (See People v. Johnson (2009) 47 Cal.4th 668, 677.)
We have examined the entire record
and are satisfied counsel has complied fully with counsel’s
responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d.436, 443.)
The judgment is affirmed.
KLEIN,
P. J.
We concur:
KITCHING, J. ALDRICH, J.
name="_ftn1" title="">
further statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title="">
facts have been taken from the transcript of the preliminary hearing.
