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People v. Bulter

California Court of Appeals, Second District, Fifth Division
Jul 22, 2008
No. B203872 (Cal. Ct. App. Jul. 22, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a sentence of the Superior Court of Los Angeles County No. VA098275, Roger Ito, Judge.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.


MOSK, J.

INTRODUCTION

Pursuant to a plea agreement, defendant and appellant Lewis Butler (defendant) pleaded no contest to one count of first degree residential burglary and admitted he had suffered a prior conviction of a serious or violent felony. The trial court found defendant guilty, found the prior strike allegation to be true, and sentenced defendant to the low term of two years, doubled to four years based on the prior strike.

Defendant filed a notice of appeal from the sentence. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 requesting us to review independently the entire appellate record. After reviewing the entire record, we have determined that no arguable issue exists on appeal. We therefore affirm the sentence.

FACTUAL BACKGROUND

The facts are taken from the testimony at the preliminary hearing after which defendant entered a plea of no contest.

A. The Burglary at the Hoang Residence

Holly Hoang resided at 7841 Woodman Avenue, Panorama City (Hoang residence). On November 8, 2006, she left home at 9:30 a.m. after locking the doors and windows. She did not give anyone permission to enter her home that day.

At approximately 12:00 p.m., a detective telephoned Hoang and informed her that someone had broken into her home. Hoang returned home, discovered that her sliding door was damaged, and that $700 cash and some jewelry were missing. After Hoang returned to work, a detective gave Hoang’s husband, who was home, the $700 and jewelry that had been taken earlier that day.

That morning, Los Angeles Police Officer David Alvarez was working under cover in the commercial crimes division. He was assigned to conduct surveillance of a blue Toyota Corolla, license plate number 5SOP544. Officer Alvarez was working with the field enforcement element, which included approximately six or seven officers.

At approximately 10:00 a.m., Officer Alvarez followed the blue Toyota to the Hoang residence. Defendant was driving, co-defendant Dyno West was in the front passenger seat, and a third man was in the rear passenger seat. The Toyota approached the Hoang residence driving south, on the west side of the street. Officer Alvarez observed the rear passenger exit the vehicle and knock on the door of the Hoang residence. The rear passenger then entered the side gate and went towards the rear of the house.

Defendant and West drove a short distance south, made a u-turn, and parked directly across from the Hoang residence. The driver and passenger side windows were rolled down, and West was talking on a cell phone. The Toyota was facing north and both men were watching the house and the street.

After about five minutes, defendant and West drove north, made another u-turn, and parked in front of the Hoang residence. Officer Alvarez then observed the rear passenger walking out of the front door of the Hoang residence. He walked at a fast pace, carrying what appeared to be “property” at the right side of his waist, and entered the rear door of the Toyota. The vehicle drove south toward Victory Boulevard. Officer Alvarez and his fellow officers temporarily lost track of the vehicle, but an “air unit had it the whole time.”

Within minutes, the abandoned Toyota was located by Officer Tony Acosta. Officer Alvarez arrived, spoke with Officer Acosta, and learned that a box containing cash and some jewelry had been recovered from the inside of the vehicle. The property was returned to Hoang. Officer Alvarez inspected the Hoang residence and determined that two sliding doors to the house had been pried open.

B. The Burglary at the Morales Residence

Lisette Morales resided at 9317 San Carlos Avenue, South Gate (Morales residence). On November 21, 2006, she locked and secured her residence and left at 7:15 a.m. She did not give anyone permission to enter her house in her absence. Around noon, the police called Morales, prompting her to return home. Upon arrival, she encountered the police inside and observed that the house was a “mess.” Her laptop computer, camera, money, and jewelry were missing.

Around 3:00 p.m. that same day, the police gave Morales directions to a location in Downey where she recovered her laptop computer and camera. But the camera was broken, and the computer was dented and had a shattered screen. Morales observed that the back door to her residence was damaged where the unauthorized entry to her home had been made.

That morning, Officer Alvarez began a surveillance of a black “Chevy” Malibu, license plate number 4CZC195. He was working with Detective Evans and Officer Jessimon Morales. Officer Alvarez followed the Malibu through the streets of South Gate to the Morales residence. Defendant was driving, West was in the front passenger seat, and co-defendant Dashawn Sutton was in the rear passenger seat. As the vehicle approached the Morales residence, Sutton exited and went to the front door of the house. Officer Alvarez observed Sutton knocking on the door, but then lost sight of him for a brief moment.

The Malibu then made a quick u-turn, headed north on San Carlos made a left at the next east-west street, and another left on San Antonio, which is one street west of San Carlos. The Malibu parked on the street and then made a left into the driveway of an apartment building located directly behind the Morales residence. Officer Alvarez made a radio broadcast that three men were in the Malibu as it entered the driveway of the apartment. About a minute later, Officer Alvarez saw the Malibu leaving the driveway, but only defendant and West were inside; Sutton was no longer in the vehicle. The Malibu returned to the Morales residence and stopped across the street. The Malibu then made a quick u-turn and returned to the driveway of the apartment behind the Morales residence. The vehicle immediately backed out of the driveway with Sutton again inside.

Officer Alvarez stayed behind at the Morales residence while Detective Evans and Officer Morales followed the Malibu. As they followed the Malibu, they requested assistance from the Los Angeles County Sheriff’s Department in making a traffic stop of the vehicle.

Officer Alvarez met with Morales at her residence, and she described which items of property had been taken. He noticed that there was damage to the rear door of the residence.

C. Fleeing From and Eluding Pursuing Police Officers

On November 21, 2006, Deputy Eric Arias was assigned to the gang unit working out of the Carson Sheriff’s station. He was in uniform in a marked patrol unit with his partner Detective Mark Wedel. Detective Evans called Deputy Arias and asked for assistance in making a traffic stop of the Malibu. Deputy Arias responded to the 710 freeway northbound, north of the 91 freeway. He and Detective Wedel located and stopped the Malibu. He observed that defendant was driving, West was in the front passenger seat, and Sutton was in the rear passenger seat. Deputy Arias approached the vehicle on the passenger side, reached the rear passenger door, and heard someone say, “Here he comes. Go, Go, Go.” The Malibu then “took off” northbound on the freeway.

Deputy Arias and Detective Wedel returned to their parked patrol unit and pursued the Malibu. They turned on the unit’s lights and sirens, as did detectives in an unmarked police vehicle who were working with Deputy Arias and Detective Wedel. Once they initiated the pursuit, the Malibu abruptly exited the 710 freeway at Rosecrans Avenue, went through a red light at the end of the off-ramp, and turned eastbound on Rosecrans. The Malibu accelerated at a high rate of speed, pulling away from the pursuing police vehicles. Deputy Arias continued to accelerate and maintained a distance of two or three car lengths behind the Malibu. The vehicle proceeded east on Rosecrans and went through another red light at Orange, while Deputy Arias and Detective Wedel continued in pursuit.

Just before Garfield Avenue, Deputy Arias saw the front passenger throw a laptop computer from the Malibu. Detectives Airhorn and Reynolds stopped their vehicle and recovered the laptop. The Malibu continued eastbound on Rosecrans at a high rate of speed, running red lights and weaving in and out of traffic.

As Deputy Arias and his partner approached Paramount Boulevard, they lost sight of the Malibu and could not determine if it went north, south, or had continued eastbound on Rosecrans. They turned south on Paramount, traveled a short distance, and realized they could not see the Malibu. Shortly thereafter, they received a call from Detective Evans who informed them that his units had “picked up” the Malibu again, and it was located shortly thereafter. It was parked at an angle from the curb in a residential area of Downey and abandoned. A perimeter was established, a K-9 unit brought in, and eventually defendant, West, and Sutton were apprehended hiding in a different location from where the Malibu was parked.

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney filed an amended information charging defendant in Count 1 with first degree residential burglary in violation of Penal Code section 459, a felony; in Count 2 with residential burglary in violation of section 459, a felony; and in Count 3 with evading a pursuing police officer in violation of Vehicle Code section 2800.2, subdivision (a). The District Attorney alleged that as to Counts 1, 2, and 3, defendant had served two prior prison terms within the meaning of section 667.5, subdivision (b); defendant had carried out the charged crimes with planning, sophistication, and professionalism within the meaning of Rules of Court, rule 4.421(a)(8); defendant had suffered a prior conviction of a serious or violent felony within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i); and defendant had suffered a prior conviction of a serious felony within the meaning of section 667, subdivision (a)(1).

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

Following the preliminary hearing, defendant entered into a plea agreement pursuant to which he agreed to plead no contest to Count 2 and admit that he suffered a prior conviction of a serious or violent felony. The agreement provided that defendant would serve a four-year term (the low term of two years, doubled based on the prior conviction) in state prison and the prosecution would dismiss Counts 1 and 3, as well as the remaining special allegations.

Pursuant to the plea agreement, the trial court sentenced defendant on Count 2 to the low term of two years, doubled pursuant to sections 1170.2, subdivisions (a) through (d) and 667, subdivisions (b) through (i), for a total sentence of four years. The remaining counts and special allegations were dismissed by the trial court pursuant to section 1385. Defendant was awarded 483 days of custody credit, consisting of 323 days of actual custody credit and 160 days of conduct credit. Defendant filed a timely notice of appeal from the sentence.

DISCUSSION

As noted above, appointed counsel filed an opening brief in accordance with People v. Wende, supra, 25 Cal.3d 436. We gave notice to defendant that his appointed counsel had not found any arguable issues, and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wanted this court to consider. Defendant did not file a supplemental brief.

We examined the entire record, including the record of defendant’s plea of nolo contendere to Count 2 and his sentence. Based on that independent review, we have determined that there are no arguable issues on appeal. We are therefore satisfied that defendant’s counsel has fully complied with her responsibilities under People v. Wende, supra, 25 Cal.3d 426.

DISPOSITION

The sentence from which defendant appeals is affirmed.

We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.


Summaries of

People v. Bulter

California Court of Appeals, Second District, Fifth Division
Jul 22, 2008
No. B203872 (Cal. Ct. App. Jul. 22, 2008)
Case details for

People v. Bulter

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. L.C. LEWIS BUTLER, Defendant and…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Jul 22, 2008

Citations

No. B203872 (Cal. Ct. App. Jul. 22, 2008)