Filed 12/20/13 P. v. Butler CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058238

v.                                                                       (Super.Ct.No. RIF73041)

RAY ANTHONY BUTLER,                                                      OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Michele D. Levine,

Judge. Affirmed.

         Richard Glen Boire, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Ronald A. Jakob and Kristen

Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       On June 18, 1999, defendant and appellant Ray Anthony Butler pled guilty to

petty theft with a prior conviction (Pen. Code, § 666),1 and admitted four prior strike

convictions.2 Pursuant to the “Three Strikes” law, the court sentenced defendant to an

indeterminate term of imprisonment of 25 years to life. On January 9, 2013, defendant

filed a petition for resentencing pursuant to section 1170.126. On March 5, 2013, the

trial court effectively denied his petition. On appeal, defendant contends the court erred

in determining, as a matter of law, that a prior strike conviction for rape in concert

(§ 261) for which a true finding was rendered on an attached personal use of a firearm

enhancement (§ 12022.5) made him ineligible for resentencing. We affirm.

                         FACTS AND PROCEDURAL HISTORY

       On July 26, 1978, a jury convicted defendant of first degree burglary (§ 459), two

counts of robbery (§ 211), and rape in concert (former § 261(3)). The jury additionally

found true an allegation defendant personally used a firearm in his commission of the

offenses. The court sentenced defendant to 11 years’ imprisonment.

       On January 26, 1997, defendant stole a camcorder battery worth $69.99 from a

Sears store. After the court released defendant on bail, he failed to appear for

arraignment. Defendant was arrested more than a year later in May 1998, in Oklahoma.




       1   All further statutory references are to the Penal Code unless otherwise indicated.

       2  We take judicial notice of our opinion in E025772, defendant’s appeal from his
original conviction and judgment.


                                              2
                                       DISCUSSION

       Defendant contends the court erred in determining, as a matter of law, a conviction

for rape in concert with an attached enhancement for personal use of a firearm is an

offense for which a defendant is statutorily ineligible for resentencing. We disagree.

Nevertheless, we agree with the court’s alternative, factual determination that defendant’s

commission of the rape was conducted with force or fear making him ineligible for

resentencing. In any event, we hold any error harmless.

       Section 1170.126 “provides a means whereby prisoners currently serving

sentences of 25 years to life for a third felony conviction which was not a serious or

violent felony may seek court review of their indeterminate sentences and, under certain

circumstances, obtain resentencing as if they had only one prior serious or violent felony

conviction.” (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1286.)

“First, the court must determine whether the prisoner is eligible for resentencing; second,

the court must determine whether resentencing would pose an unreasonable risk of

danger to public safety; and third, if the prisoner is eligible and resentencing would not

pose an unreasonable risk of danger, the court must actually resentence the prisoner.”

(Id. at 1299.) “[O]nce a court determines that a petitioning prisoner is eligible for

resentencing under the Act, the petitioner ‘shall be resentenced’ to a second strike

sentence ‘unless the court, in its discretion, determines that resentencing the petitioner

would pose an unreasonable risk of danger to public safety.’” (Id. at 1301.)




                                              3
       “If the court finds that resentencing a prisoner would pose an unreasonable risk of

danger, the court does not resentence the prisoner, and the petitioner simply finishes out

the term to which he or she was originally sentenced.” (People v. Superior Court

(Kaulick), supra, 215 Cal.App.4th 1279 at p. 1303.) “[A] court’s discretionary decision

to decline to modify the sentence in his favor can be based on any [] appropriate factor

(i.e., dangerousness), and such factor need not be established by proof beyond a

reasonable doubt to a jury.” (Ibid.) The trial court, in exercising such discretion, may

rely on factors establishing defendant’s dangerousness, or lack thereof, based on a

preponderance of the evidence. (Id. at 1305.) A trial court’s decision to refuse to

resentence a prisoner, based on a finding of dangerousness, need only be supported by

some evidence. (Id. at 1306, fn. 29.)

       Under section 1170.126, subdivision (e), an inmate is eligible for resentencing if

he is (1) serving an indeterminate term of life imprisonment imposed pursuant to section

667, subdivision (e)(2); (2) his current sentence was not imposed for offenses appearing

in section 667, subdivisions (e)(2)(C)(i)-(iii); and (3) has not had prior convictions for

any of the offenses appearing in section 667, subdivision (e)(2)(C)(iv). Here, only the

third element is at issue. Section 667, subdivision (e)(2)(C)(iv) makes ineligible for

resentencing any defendant who has “suffered a prior serious and/or violent felony

conviction . . . for . . . [¶] (I) A ‘sexually violent offense’ as defined in subdivision (b)

of Section 6600 of the Welfare and Institutions Code.” Welfare and Institutions

Code section 6600, subdivision (b) defines rape (§ 261) as a “‘[s]exually violent



                                               4
offense’ . . . when committed by force, violence, duress, menace, fear of immediate and

unlawful bodily injury on the victim or another person, or threatening to retaliate in the

future against the victim or any other person . . . .”3

       Here, we agree with the trial court’s determination that “I cannot think of any

circumstance where the Court would have a use of a firearm and a rape conviction and it

not being by force or fear . . . .” Indeed, if a defendant uses a firearm to facilitate the

crime, a section 12022.5 enhancement applies; if, on the other hand, the defendant’s

weapon-related conduct is incidental or unrelated to the offense, only the lesser section

12022, subdivision (a) enhancement is applicable. (People v. Granado (1996)

49 Cal.App.4th 317, 325, fn. 7 (Granado).) Here, by finding a section 12022.5

enhancement true, the jury must necessarily have found defendant took “some action

with the gun in furtherance of the commission of the” rape. (Granado, supra,

49 Cal.App.4th 317, 325, fn. 7.) Thus, defendant used the gun to effectuate the rape

through force or fear. This is especially true when he did so in concert with another

individual.

       As he did below, defendant speculates scenarios whereby the victim may have

been intoxicated or unconscious during the rape, rendering defendant’s “use” of the gun

extraneous and negating any force or fear requisite in making him ineligible for

resentencing. Defendant quotes Granado’s statement that “a gun use enhancement would


       3 A prior conviction for rape alone would not render defendant ineligible for
resentencing.


                                               5
be wholly warranted if the defendant deployed a gun to further the holdup of a blind

person - - even if the victim never learned of the gun’s presence” (Granado, supra,

49 Cal.App.4th 317 at p. 329, fn. 10) to support his contention that a true finding on a

gun use enhancement does not necessarily support a finding of force or fear. Of course,

there was no evidence here adduced of intoxication, unconsciousness, or blindness.4

Moreover, the presence of a gun to effectuate a rape, whether seen or not, is intended by

the offender to effectuate the crime, and is not merely incidental or unrelated to the

crime. Thus, we agree with the trial court that a conviction for rape in concert with an

attached personal use of a firearm enhancement is a sexually violent offense for which

resentencing pursuant to section 1170.126 is inapplicable.

       Nonetheless, even if the court erred in determining defendant was statutorily

ineligible for resentencing as a matter of law, we hold the court acted within its discretion

in finding defendant ineligible based upon a factual determination of the nature of his

prior offense. Admittedly, the record does not disclose the circumstances of the prior

offense; however, repeated references to other documents regarding that crime were

made in the proceedings below. Early on, the prosecutor noted, “I also forwarded all of

the documents about [] [defendant’s] rape prior to [defense] [counsel].” Implicit in this

statement is that more than simply the abstract of judgment of defendant’s prior offense

was included.


       4 Defendant offered no evidence regarding the facts of his prior strike convictions
other than the abstract of judgment.


                                              6
       The court also observed “you would be able to get facts from him with respect to

the prior offense that somehow were not documented by a probation report or

documented in the sentencing memorandum or otherwise documented in the prior

conviction documentation . . . .” This, likewise, suggests the court and parties had

considered other documentation, including the probation officer’s report and sentencing

memorandum regarding defendant’s prior offense. It was likely these documents that

allowed the court to state an alternative factual basis for its determination of defendant’s

ineligibility for resentencing: “But that if I were to go behind that and look factually at

this particular case, that this was an extremely violent one, and that it would not be able

to be demonstrated to this Court or any other Court that this was not a factually-based

force-and-fear rape that occurred that was the basis of the prior strike.” There could be

no other explanation for the court’s statement than that it considered other documentation

not included in this record because the abstract of judgment alone would not support such

a factual determination.

       Indeed, our opinion in defendant’s appeal of his original conviction and judgment

describes his rape offense as follows: “The 1978 convictions were based on an incident

in 1977, in which defendant and an accomplice entered a home and robbed a married

couple at gun point. While the victims were being held in the bedroom, defendant began

fondling the female victim, and he eventually ordered her to the living room and raped

her. During the incident, defendant or his accomplice struck the husband in the head with

a hard object; defendant shouted, ‘“If your baby wakes up and cries, I’ll kill it”’; and



                                              7
defendant told the husband, ‘“I think I’ll just blow your head off before I leave.”’” Thus,

even if neither the record nor any additional documentation considered by the court

below established defendant’s prior offense of rape was committed with force or fear, any

error was harmless because, as recounted above, it was committed with both.

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                               RAMIREZ
                                                                                       P. J.
We concur:



HOLLENHORST
                          J.



KING
                          J.




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