Filed 3/8/13 P. v. Butler CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,

         Plaintiff and Respondent,                                                     F063819

                   v.                                                    (Super. Ct. No. MCR040734)

KAREN BUTLER,
                                                                                     OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea,
Judge.
         Suzanne M. Morris, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari L.
Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-



*        Before Wiseman, Acting P.J., Levy, J. and Cornell, J.
       A jury convicted appellant, Karen Butler of possessing a weapon while confined
in a penal institution (Pen. Code, § 4502, subd. (a)).1 In a separate proceeding, the court
found true an allegation that Butler had a prior conviction within the meaning of the
“Three Strikes” law (§ 667, subds. (b)-(i)).
       On November 4, 2011, the court sentenced Butler to a four-year term (the
mitigated term of two years doubled because of Butler‟s prior strike conviction), which it
imposed consecutive to the term Butler was serving when she committed the possession
offense.
       On appeal, Butler contends: 1) the court committed instructional error; and 2) she
was denied the effective assistance of counsel. We affirm.
                                          FACTS
       On the evening of February 14, 2011, Correctional Officer Alicia Benafield was
conducting a count at Valley State Prison for Women when she saw Butler standing at
the window of the door to her cell. Butler asked to speak with “the sergeant.” Benafield
told her that as soon as she completed the count she would call the sergeant and tell him
Butler would like to speak with him. She also told Butler to go sit down on her bunk.
All the other inmates in Butler‟s cell were on their bunks at the time. Benafield
continued down the hall taking the count and did not hear anything from Butler‟s cell.
Approximately two minutes later when she was at the cell across from Butler‟s cell,
Benafield saw Butler at the window of her cell door swinging an object in a white sock.
She also heard Butler say, “I‟m going to hit you bitches.” Benafield pressed an alarm
which alerted other staff that an inmate might be in possession of a weapon. She ordered
Butler to get on the ground and drop the weapon and Butler complied. Benafield
recovered the weapon, which turned out to be a slug made from a lock inside a sock.




1      All further statutory references are to the Penal Code.


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During the time that Benafield observed Butler, the other inmates in her cell were on their
bunks.
         Correctional Sergeant John Alvara spoke with Butler after the disturbance in her
cell. Butler told him if they put her back in the same cell she would do something so that
they would have to take her out of the cell again.
         Butler was also examined by a nurse after she was removed from her cell. The
nurse found a small bruise on Butler‟s upper right arm and two small scratches on her
back. When asked to make a brief statement about the incident in her cell, Butler stated
she wanted to hurt her cellmates.
         Butler testified that she had been in the cell where the incident occurred less than
two weeks. Seven other women were assigned to the cell including three women she
described as bullies. These three women would speak in Spanish and would call Butler
names. On February 14, 2011, just before 9:00 p.m., Butler got into an argument over a
table with the shortest woman of the trio of bullies. When Butler and the short woman
were about to fight, the largest woman of the trio told Butler, “You hit her, you are going
to have to hit me.” The third woman then told Butler that if Butler hit her girlfriend, she
was going to join the fight too. At some point the large woman pushed Butler causing
her to bump her left shoulder into a locker, which created a small bruise on the shoulder.
The short woman then attempted to swing at Butler and wound up scratching her.
Meanwhile the third woman stated, “You guys, that‟s how you want to do it, let‟s do it
this way.” Butler felt intimidated and scared so she went to her bed area and got the lock.
         According to Butler, throughout the course of the day the three women had been
threatening her and calling her names. However, Butler did not report this to any officer
because she did not want to be known as a “snitch” as this would have put her in more
danger.
         After she was pushed into the locker, Butler went to the door to her cell and
started kicking it to get an officer‟s attention. Three minutes later when Benafield came


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to the door, Butler told her she needed to get Butler out of the cell, she was having
problems, and she needed to see a sergeant. Benafield told her she could not do it then
because it was almost time for the count and she would take care of it afterwards.
       Butler then went to her bed area, took the lock off her drawer and put it in a sock
because the three bullies were cussing at her in Spanish. However, she did not swing the
lock or attempt to strike the women with it. Instead, since she knew Benafield would be
across the hall, Butler placed the lock on her cell door window so that it would make a
clank sound and get her attention. As expected, Benafield was in the hall across from
Butler‟s cell and heard the sound. The officer turned toward Butler and told her to put
that weapon down. Butler was afraid of the three women and replied, “Get me out of this
room. I‟m not playing with you, Miss Benafield. I need to get out this room and see the
sergeant.” Butler also said she was going to hit the three women. Benafield told Butler
to get down in the prone position and she complied.
       According to Butler when Benafield walked two cells down the hall the three
bullies were standing up and they sat down when she came back to the window.
Throughout this incident the three bullies were saying threatening things to her and at one
point Butler told them, “I [sic] going to hit all you bitches.” Butler was afraid the three
bullies were going to beat her up and all she wanted to do was get out of the cell. She
also knew that if the officers saw the lock in the sock they would take her out of the cell.
Butler admitted telling Sergeant Alvara that if they put her back in the cell she would do
something again so that they would have to take her out. She told the nurse she would
hurt the three women before they hurt her.
                                      DISCUSSION
                             The Alleged Instructional Error
       Butler contends the court erred by its failure to charge the jury sua sponte with an
instruction on self-defense. We disagree.




                                             4.
       A trial court has a sua sponte duty to instruct regarding a defense if there is
substantial evidence to support it and the defense is consistent with the defendant‟s
theory of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.)
       In People v. Saavedra (2007) 156 Cal.App.4th 561 the court held that the defense
of self-defense is available in very limited circumstances to an inmate charged with
illegally possessing a weapon in prison. (Id. at p. 569.) In so holding, the court
explained:

               “… It is well established that a prison inmate charged with a
       violation of section 4502 cannot raise the defense of self-defense based on a
       claim that a weapon was possessed for protection from an anticipated,
       future attack. (People v. Crenshaw (1946) 74 Cal.App.2d 26, 29-30;
       People v. Velasquez (1984) 158 Cal.App.3d 418, 420.) However, the
       courts have recognized in dicta that it may be permissible for an inmate to
       raise a narrow claim of self-defense when the inmate was „confronted with
       an emergency that ... justified his seizing one of the prohibited weapons in
       order to protect himself.‟ (People v. Crenshaw, supra, 74 Cal.App.2d at
       p. 30, italics [omitted]; see People v. Evans (1969) 2 Cal.App.3d 877, 881-
       882, disapproved on other grounds in People v. King (1978) 22 Cal.3d 12,
       25; People v. Steely (1968) 266 Cal.App.2d 591, 595-596; People v. Purta
       (1968) 259 Cal.App.2d 71, 74; People v. Velasquez, supra, 158 Cal.App.3d
       at pp. 420-421.) As stated by the Velasquez court, „self-defense might
       justify violation of the statute where the prisoner was under imminent
       mortal attack, had no opportunity to seek protection of the authorities, and
       temporarily seized a prohibited weapon in order to save his life.‟
       (Velasquez, supra, at pp. 420-421.)

               “A rule precluding reliance on self-defense when an inmate arms
       himself or herself in anticipation of an attack is consistent with the general
       principle that self-defense operates as a defense only when the threat of
       bodily harm is immediate and present; fear of harm even in the near future
       is insufficient. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.)
       Further, a concomitant rule allowing an inmate to raise self-defense when
       he or she temporarily seizes a weapon as a protective measure in response
       to an emergency is consistent with the established rule that a convicted
       felon charged with possession of a firearm may raise self-defense if the
       firearm only became available during an emergency and was possessed
       temporarily in response to the emergency and there was no other means of
       avoiding the danger. (People v. King, supra, 22 Cal.3d at p. 24; see
       § 12021, subd. (h)(1)(A), (B) [convicted felon‟s possession of firearm

                                              5.
       justifiable if convicted felon „found the firearm or took the firearm from a
       person who was committing a crime against him or her‟ and „possessed the
       firearm no longer than was necessary to deliver or transport the firearm to a
       law enforcement agency‟].)

               “We conclude that allowance of a narrow self-defense claim as
       suggested in cases such as Crenshaw and Velasquez represents a correct
       balancing of the policy concern that prison inmates be strictly forbidden
       from possessing weapons [citation], and the firmly established principle
       that a person acting in self-defense is not criminally culpable [citation].”
       (People v. Saavedra, supra, 156 Cal.App.4th at pp. 568-569, fn. omitted,
       italics added.)
       Here, while the three women were allegedly poised to attack Butler, Benafield
came to Butler‟s cell while counting the inmates and two to three minutes later she was at
the cell directly across from Butler‟s cell. However, on neither occasion did Butler
advise Benafield that she had been assaulted by the three women earlier that day, that the
women were threatening her, or that she feared she was in imminent danger of being
assaulted. The first time Butler simply asked Benafield to allow her to speak with a
sergeant. Further, although the second time Butler asked to be removed from her cell,
she did not explain why. Instead, she armed herself with a makeshift weapon and made
sure Benafield saw it in order to ensure that she was removed from her cell. Thus, even
assuming Butler was “„under imminent mortal attack‟” (People v. Saavedra, supra, 156
Cal.App.4th at p. 568) when she made a weapon out of the lock and sock, she was not
entitled to assert a defense of self-defense because she had the opportunity to seek the
protection of prison authorities in lieu of arming herself. It follows that the court did not
err by its failure to instruct on a defense that Butler was not entitled to assert.
       Moreover, Butler did not contend she armed herself with the lock and sock in
order to defend herself against the three women. Instead, she unequivocally testified that
all she did with the lock and sock was hit it against the cell door in order to get
Benafield‟s attention because she knew that possessing a weapon would get her removed
from her cell and away from the three women who assaulted her. Thus we conclude the



                                               6.
court did not have a sua sponte duty to instruct on self-defense for the additional reason
that this defense was inconsistent with Butler‟s theory of the case.
                       The Ineffective Assistance of Counsel Claim
       “Ineffective assistance of counsel occurs when (1) counsel fails to act in a manner
expected of reasonably competent counsel and (2) it is reasonably probable that a more
favorable outcome would have occurred absent the deficient performance. [Citation.]”
(People v. Mejia (2012) 211 Cal.App.4th 586, 635.)
       Butler contends the evidence supported a claim of self-defense and therefore her
defense counsel provided ineffective representation by his failure to advance and develop
a theory of self-defense or seek an instruction on that defense. However, as explained
above, the evidence did not support a defense of self-defense because Butler had the
opportunity to seek help from prison authorities in lieu of arming herself and the defense
was inconsistent with Butler‟s testimony and the defense theory of the case.
Accordingly, we conclude defense counsel did not provide ineffective representation by
his failure to pursue or request an instruction on self-defense.
                                      DISPOSITION
       The judgment is affirmed.




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