P. v. Butler

Filed 6/23/06 P. v. Butler CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles D. Sheldon, Judge. Affirmed.

Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.

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Anthony L. Butler appeals from the judgment entered following his conviction by jury on count 6 - attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, 187) with personal use of a firearm (Pen. Code, § 12022.53, subd. (b)), personal and intentional discharge of a firearm (Pen. Code, § 12022.53, subd. (c)), and personal and intentional discharge of a firearm causing great bodily injury (Pen. Code, § 12022.53, subd. (d)). The court sentenced him to prison for life with the possibility of parole for the attempted murder, plus 25 years to life for the firearm enhancement.

In this case, we conclude the trial court did not reversibly err by failing to instruct on attempted voluntary manslaughter based on imperfect self-defense as a lesser included offense of count 6. Based on the victim's testimony, appellant was trying to rob the victim, and this created circumstances justifying the victim's attack on appellant; therefore, the doctrine of imperfect self-defense was inapplicable. Based on appellant's statement to police, appellant shot the victim in anger and there was no substantial evidence that appellant actually believed it was necessary to defend himself from imminent peril to his life or great bodily injury when appellant shot the victim; therefore, again, the doctrine was inapplicable.

Finally, the jury rejected any evidence that appellant shot the victim in imperfect self-defense when the jury found appellant committed the attempted murder willfully, deliberately and with premeditation; therefore, any trial court error in failing to instruct on attempted voluntary manslaughter based on imperfect self-defense was not prejudicial.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on November 12, 2003, Stanley Powell and David Menefield were in Powell's Long Beach apartment. Powell testified as follows. Appellant knocked at the door, and later entered the apartment and asked if Powell had marijuana to sell. Menefield subsequently let David Calhoun[1] enter.

Menefield left to get change for a $100 bill. A man named Scott, an acquaintance of Powell, knocked on the door and Powell answered it. Scott entered and immediately said, â€