People v. Butcher
| Decision Date | 09 May 2016 |
| Docket Number | B261774 |
| Citation | 247 Cal.App.4th 310,202 Cal.Rptr.3d 135 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Ryan Allen BUTCHER, Defendant and Appellant. |
Certified for Partial Publication.*
David W. Scopp, Monterey, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Ryan Allen Butcher, appeals from a state prison sentence imposed following a contested probation violation proceeding pursuant to Penal Code section 1203.2, subdivision (a).1 Defendant received a three-year, eight-month prison sentence. He received a three-year principal term for violating Vehicle Code section 2800.2, subdivision (a), felony evading. And, defendant received a consecutive eight-month subordinate term for violating section 71, subdivision (a) (section 71), threats against a public officer. We affirm the finding defendant violated the terms of his probation. We also affirm his state prison sentence. However, we order modifications to the judgment.
On April 5, 2012, defendant was arrested and later, on April 9, charged with two felonies in case No. YA083992. Defendant was charged with felony grand theft of personal property and evading a peace officer with willful or wanton disregard for the safety of persons or property.
(§ 487, subd. (a); Veh.Code, § 2800.2, subd. (a).) On April 23, 2012, defendant pleaded no contest to the felony evading charge. The theft charge was dismissed. Defendant received a three-year state prison sentence, which was suspended. Defendant was placed on probation for three years and required to serve 365 days in county jail. Defendant was awarded 38 days of presentence credit, 19 days for actual custody and 19 days for good time credit. The probation conditions imposed on defendant included a requirement that he “obey all laws” and court orders. Defendant was also subject to search and seizure conditions by any peace officer without a warrant, probable cause or reasonable suspicion. Defendant was assessed: $40 for court operations under section 1465.8, subdivision (a)(1); $30 for court facilities under Government Code section 70373, subdivision (a)(1) ; a $240 restitution fine under section 1202.4, subdivision (b); a $240 section 1202.44 probation revocation restitution fine, which would become effective if his probation was revoked; and a $240 parole revocation restitution fine under section 1202.45, which would become effective if his parole was revoked.
On January 23, 2013, defendant's probation was revoked because he was arrested on a new felony offense. The prosecution was unable to proceed with the preliminary hearing on the new charge. As a result, on February 6, 2013, probation was reinstated.
On March 27, 2013, probation was once again revoked because defendant was arrested and charged with methamphetamine possession in case No. YA086737. Defendant admitted he had violated the terms of his probation after pleading no contest to the methamphetamine possession charge in case No. YA086737. Probation was reinstated under the original terms and conditions with an additional 42 days of jail time imposed. Defendant received 21 days of actual custody and 21 days good time presentence credit. Probation was modified to impose a new condition prohibiting consumption of alcohol or drugs.
On May 2, 2013, probation was once again revoked after another methamphetamine possession arrest. On June 5, 2013, defendant was found to have violated the terms of his probation based on his no contest plea and resulting conviction in case No. YA087170. Defendant's probation was once again reinstated on the previous terms and conditions. The trial court lifted the stay on the previously imposed $240 section 1202.44 probation revocation restitution fine.
On June 12, 2013, defendant was arrested for making a criminal threat and charged in case No. YA087652 with violating section 422, subdivision (a). We shall digest those proceedings in greater detail in part II(B) of this opinion, infra . On September 11, 2013, defendant pled no contest in case No. YA087652 to a violation of section 71, threatening a public officer. Defendant was found in violation of probation in case No. YA083992, the felony evading case. Defendant's probation in the felony evading case was immediately reinstated.
On November 13, 2013, probation was again revoked. On November 18, 2013, defendant was found in violation of his grant of probation based on his admission in open court. No oral order was issued reinstating probation but defendant was ordered released. No oral order was issued imposing the additional days in county jail in this case. But the clerk's minutes state that probation was reinstated and defendant was ordered to serve 12 days in county jail. According to the abstract of judgment, defendant received six days of actual custody and six days of good time credits.
On September 15, 2014, probation was revoked and defendant was ordered remanded. On December 26, 2014, the probation violation hearing was held. We will digest the probation violation proceeding in part II(C), infra, of this opinion.
On June 12, 2013, defendant was arrested for threatening a deputy sheriff. Defendant's preliminary hearing was held on July 1, 2013. In an information filed July 15, 2013, defendant was charged with criminal threats in violation of section 422, subdivision (a). On September 11, 2013, the information was amended to add a count of threatening a public officer, a felony, in violation of section 71. Defendant pled no contest to the section 71 charge. Defendant was placed on formal probation for a three-year period. Defendant was also ordered to serve one year in county jail. Defendant received credit for 182 days served in county jail awaiting sentencing, 91 days for actual custody and 91 days for good time credit. Defendant was ordered to pay the following fines and assessments: a $280 restitution fine under section 1202.4, subdivision (b); a $280 probation revocation fine under section 1202.44 to become effective if his probation was revoked; a $40 court operations assessment fee under section 1465.8, subdivision (a)(1); a $30 court facilities assessment under Government Code section 70373, subdivision (a)(1) ; and the cost of probation services under section 1203.1, subdivision (b). Defendant was ordered as a condition of probation to obey all laws and further court orders.
As noted above, in case No. YA083992, the felony evading case, defendant's probation was expressly revoked on September 15, 2014. On January 2, 2015, the following occurred: [¶] ...
Several judges were involved in the proceedings leading up to the probation revocation hearing, which led ultimately to defendant's state prison sentence. Judge Lauren Weis Birnstein presided over the final probation revocation hearing and imposed the state prison sentence. For clarity's sake, we will refer to Judge Birnstein as the trial court.
On September 13, 2014, defendant was arrested in Redondo Beach and charged in case No. 4SY06575. Defendant was charged with: resisting or obstructing an officer in violation of section 148, subdivision (a)(1); assault on a peace officer in violation of section 241, subdivision (c); and possession of a dirk in violation of section 16470. Eventually, case No. 4SY06575 was dismissed after defendant was found in violation of probation.
On December 26, 2014, the contested probation violation hearing commenced. Redondo Beach Police Officers Brian Weiss, Ryan Harrison and Aaron Plugge testified. They testified that defendant was involved in a three-vehicle traffic collision and was unusually upset when the officers arrived. Eventually, defendant was handcuffed and a search was conducted of his truck. As matters escalated, defendant tried to bite Officer Harrison's arm. Defendant was then arrested. After the three-car accident and ensuing altercation with the police, defendant had scratches on his head, nose, right leg and elbow. The incident was captured on Officer Weiss's body camera.
Laura Alvarez testified that she was a passenger in defendant's truck when the accident occurred. Ms. Alvarez denied seeing defendant attempt to bite any police officer. Ms. Alvarez testified she had a clear view of defendant being arrested. However, at the time that the altercation was ensuing, Ms. Alvarez testified she was talking to a police officer.
On January 2, 2015, defendant was found to have violated the terms of his probation for failure to obey all laws; namely for assaulting a peace officer. The trial court found that Ms. Alvarez was not in a position to see the biting incident. The trial court imposed a three-year, eight-month county jail sentence on defendant as a result of his convictions in case Nos. YA083992 and YA087652. The total county jail sentence was 1,335 days. The trial court found: defendant had 365 actual presentence custody credits; defendant was entitled to an additional 110 days of credit from September 15, 2014, to January 2, 2015, for a total of 475 actual custody credits; defendant was entitled 474 days of good time credit for a total of...
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