P. v. Butler
Two juries convicted defendant and appellant Donyell Ladale Butler of attempted murder, assault with a firearm, and possession of an assault weapon.
He appeals from the judgments and contends that (1) the prosecution committed prejudicial misconduct, (2) the trial court erred by refusing to dismiss two jurors, (3) the trial court erred by refusing defense counsel’s request to instruct the jury on attempted voluntary manslaughter, (4) the trial court erred when it instructed the jury with CALCRIM No. 361 (failure to explain or deny adverse testimony), (5) the trial court erred when it overruled a defense objection to a hypothetical question posed to the gang expert, (6) the trial court erred in calculating the length of the sentence for the gang enhancement on the count for possession of an assault weapon, (7) the trial court erred in failing to award presentence custody credits, (8) there was insufficient evidence that defendant was the shooter, (9) the abstract of judgment should be corrected to reflect the proper sentence on the count for possession of an assault weapon, and (10) the case should be remanded because the abstract of judgment does not accurately reflect the oral pronouncement of the court.
We agree that the trial court imposed an incorrect sentence for the gang enhancement on the count for possession of an assault weapon and modify the judgment. We also find defendant was entitled to presentence conduct credit. In all other respects, we affirm the judgment.
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