P. v. Butler
Filed 9/7/06 P. v. Butler CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. SHON M. BUTLER, Defendant and Appellant.
|
F048681
(Super. Ct. No. F04902908-3)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Lawrence Jones, Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez, Kathleen A. McKenna and Connie A. Proctor, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Shon M. Butler was found guilty after a jury trial of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)).[1] The jury found true an allegation that appellant inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). The jury acquitted appellant of robbery (§ 211). The court sentenced appellant to prison for three years for assault plus three years for the great bodily injury enhancement. On appeal, appellant contends the trial court inadequately instructed the jury on the great bodily injury enhancement.
FACTS
On April 30, 2004, appellant and a woman he was with stopped Harvey Doi as he was walking to the store to buy some cigarettes. Doi was 62 years old. Appellant and the woman yelled at Doi, demanding everything in his pockets. Doi did not hand over any money. Appellant raised his hand above his head and hit Doi on the jaw with something very hard. The blow knocked Doi unconscious.
The woman went through Doi's pockets as he was on the ground. Tom and Rachel Miller and Jared and Janelle Martin were driving down the street as appellant hit Doi. Tom Miller saw the actual blow. Rachel Miller and Janelle Martin saw Doi on the ground and realized he was being mugged. All four witnesses identified appellant as the man who was standing near Doi when Doi fell to the ground.
Miller made a U-turn and returned to the scene. Miller met appellant's eyes and mouthed, â€
