P. v.
Filed 7/18/13 P. v. Butler CA2/6
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
JIMMY LEE BUTLER,
Defendant and Appellant.
2d
Crim. No. B245164
(Super.
Ct. No. SA079423)
(Los
Angeles County)
Jimmy Lee Butler appeals
from the judgment entered after a jury convicted him of
felon (Pen. Code, § 12021, subd. (a)(1))
convictions (§§ 667, subds. (d) - (i); 1170.12, subds. (a) - (d)) and four
prior prison term enhancements (§ 667.5, subd. (b)). The trial court struck three of the prior
prison term enhancements and found that one of the prior strikes did not apply
because the prosecution "did not proceed in this matter as a third strike
case." The trial court denied
probation and sentenced appellant as a second strike defendant to seven years
Appellant contends that
the trial court abused its discretion in denying a Pitchess motion for
discovery of the arresting officers' confidential personnel files. (Pitchess v. Superior Court (1974) 11
Cal.3d 531.) We affirm.
Facts
On December 6, 2012 appellant confronted his
estranged wife, Robin G., at a restaurant bar.
Robin believed appellant had a handgun and was about to kill her. Fearing for her life, Robin left with a
friend, picked her son up at school, and drove home.
Later that night,
appellant phoned Robin and threatened to kill her and put her body in a trash
dumpster. Robin called 911 and said that
appellant was outside her apartment, knocking on the window.
Los Angeles Police
Officer Darius Lee and Officer Rivera responded the 911 call. Robin said that appellant had a history of
domestic violence and tired to strangle her on November 26, 2011.
Robin reported that appellant was living with his ex-wife in Inglewood
and that appellant had just been outside her apartment, threatening to kill
her. Robin's teenage son saw appellant
leave, carrying a black handgun.
Officer Lee went to the Inglewood
address. Appellant's vehicle was parked
outside the apartment and had a warm hood.
Bonnie Butler, the apartment renter, said that appellant was in the
bedroom and allowed the officers to enter.
After appellant was arrested on suspicion of making criminal threats, Butler
consented to a search of the apartment for handguns. Sergeant Craig Brown searched the bedroom and
found a loaded .40 caliber Glock handgun in the nightstand drawer next to the
bed. At trial, a forensic DNA expert
testified that genetic material on the handgun and ammo magazine revealed DNA
consistent with appellant's DNA profile.
Pitchess Motion
Appellant argues that
the trial court abused its discretion in denying his Pitchess motion for
the production of Officer Lee's and Sergeant Brown's confidential personnel
records. Appellant claimed that the
handgun was planted and sought the
production of complaints concerning "acts of racial bias, ethnic bias,
violation of constitutional rights, fabrication of charges, fabrication of
evidence, fabrication of reasonable suspicion and/or probable cause, illegal
search/seizure, false arrest, perjury, dishonesty, writing of false police
reports. . . ."
The trial court denied
the motion as to Officer Lee because the moving papers and arrest report
indicated that Sergeant Brown was the only person having any knowledge of where
the handgun was found. There was no
supporting documentation explaining how Officer Lee could have planted the
handgun. (See e.g., Warrick v.
Superior Court (2005) 35 Cal.4th
1011, 1024.) The trial court did,
however, conduct an in-camera review of Sergeant Brown's personnel records and
found "no discoverable material to be turned over."
At appellant's request,
we have reviewed the sealed transcript of the in camera proceeding and conclude
that the trial court did not abuse its discretion in denying discovery. (People v. Hughes (2002) 27 Cal.4th
287, 330; People v. Mooc (2001) 26 Cal.4th 1216, 1232.
The judgment is
affirmed.
NOT TO BE PUBLISHED.
YEGAN,
J.
We
concur:
GILBERT, P.J.
PERREN, J.
Antonio Barreto, Jr., Judge
Superior
Court County
of Ventura
______________________________
Lynn Davis, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, , Deputy Attorney General, for Plaintiff and Respondent.
name="_ftn1" title="">[1] Al statutory references are to the Penal Code.
