P. v. Butler
Filed 3/15/07 P. v. Butler CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, Plaintiff and Respondent, v. DON GORDON BUTLER, Defendant and Appellant. | C051219 (Super. Ct. No. CM022036) ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] |
THE COURT:
It is ordered that the opinion filed herein on February 28, 2007, be modified as follows:
On page 8, at the end of the first full paragraph, insert the following:
D
Specific Versus General Statute
As a purported alternative to his lesser included offense argument, defendant contends the trial court erred in not instructing the jury on section 422.6 because that statute is more specific than the assertedly general combination of sections 242 and 422.7. Again, we find no error.
[W]hen the Legislature has enacted a specific statute addressing a specific matter, and has prescribed a sanction therefor, the People may not prosecute under a general statute that covers the same conduct, but which prescribes a more severe penalty, unless a legislative intent to permit such alternative prosecution clearly appears. (Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1250, italics omitted and added.) Here, such an intent plainly appears in subdivision (d) of section 422.6, which provides that [c]onduct that violates this and any other provision of law . . . may be charged under all applicable provisions. ( 422.6, subd. (d), italics added.) Thus, even if section 422.6 could be deemed a more specific statute addressing defendants actions than the combination of the battery statute ( 242) and the hate crime enhancement statute ( 422.7), the Legislature clearly expressed its intent to allow the People to prosecute under the latter provisions, even though those provisions prescribe a more serious penalty than section 422.6.
This modification does not change the judgment.
Petitioners petition for rehearing is denied.
BY THE COURT:
DAVIS, Acting P.J.
ROBIE , J.
BUTZ , J.
Publication Courtesy of San Diego County Legal Resource Directory.
Analysis and review provided by San Diego County Property line attorney.
