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The People v. Thomas Ignacious Butler

November 8, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
THOMAS IGNACIOUS BUTLER, DEFENDANT AND APPELLANT.



(Super. Ct. No. 07F08883)

The opinion of the court was delivered by: Hull , J.

P. v. Butler

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant was convicted by a jury of four counts of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) and one count each of transporting a controlled substance (Health & Saf. Code, § 11379, subd. (a)), attempting to evade a peace officer (Veh. Code, § 2800.2), driving or taking another's vehicle without consent (id., § 10851, subd. (a)), and receiving stolen property (Pen. Code, § 496). (Further undesignated section references are to the Penal Code.) Sentenced to state prison for an aggregate term of 23 years, defendant appeals contending: (1) the trial court improperly admitted identification evidence; (2) there is insufficient evidence to support the controlled substance and weapon possession convictions; and (3) section 654 bars punishment on more than one firearm possession conviction. We agree in part with the last contention and order that punishment on two of the firearm offenses be stayed. In all other respects, we affirm.

FACTS AND PROCEEDINGS

On August 20, 2007, D.W. was on vacation in Georgia when he received a telephone call from a neighbor informing him that someone had broken into his home. D.W. returned home and found the front door forced open and several items missing, including a red Ford Mustang convertible, a Harley Davidson motorcycle, three handguns, a sword, knives, jewelry, silver dollars, two car radios and hair cutting equipment.

In the early morning hours of August 22, 2007, Deputy John Van Assen was on duty in a marked patrol car parked at the corner of Oak Avenue and Santa Juanita in Sacramento County. At approximately 1:25 a.m., he observed a red Ford Mustang convertible go through an intersection without stopping at a posted stop sign. There were two people in the car, one in the driver's seat and the other in the front passenger seat.

Van Assen pulled out, activated the lights on his patrol car and followed the Mustang. When the Mustang failed to pull over and instead sped away, Van Assen activated his siren and engaged in a high speed pursuit. Eventually, the Mustang turned onto a dirt road and traveled another 75 feet before hitting a tree. Van Assen followed onto the dirt road. Before the Mustang hit the tree, the driver jumped out, looked back at the patrol car for a couple of seconds, and then fled on foot. Van Assen identified defendant in court as that driver.

The passenger in the Mustang, Nicholas Dunbar, remained in the vehicle. Van Assen arrested Dunbar, placed him in the back of his patrol car, and waited for backup. After Sergeant Eric Buehler and a canine unit arrived on the scene, Buehler assumed custody of Dunbar and Van Assen assisted in searching for defendant.

While Van Assen was away, Buehler found a cell phone on the front seat of the Mustang and began calling numbers from the list of contacts in the phone. When Buehler informed the people he called who he was and what he was doing, they all hung up except Joseph V., who was identified on the phone as Uncle Joe and is defendant's uncle. Joseph informed Buehler that defendant had been living with defendant's mother for approximately a year and that his date of birth is April 20. Joseph thought defendant had been born in 1974.

Buehler searched a police database using the computer in his patrol car and found an entry for defendant, who had previously been convicted of numerous crimes. Defendant's birth date was listed as August 20, 1970. Buehler pulled up a booking photograph of defendant on the screen of his computer.

Van Assen and the other officers were unable to find defendant in their search of the area. When Van Assen returned to his patrol car, Buehler showed him the photo of defendant on his computer screen. Van Assen immediately identified defendant as the driver of the Mustang.

While Van Assen was searching for defendant, Buehler saw Dunbar in the back seat of Van Assen's patrol car moving around a lot and walked over to investigate. Buehler noticed a white granular substance on the floorboard below Dunbar's feet. It appeared to Buehler that Dunbar had been trying to destroy the substance, so he removed Dunbar from the patrol car and placed him in another. After returning from the search, Van Assen collected the substance from the floor of his patrol car and it tested positive for methamphetamine. However, later testing of the substance was inconclusive for the presence of methamphetamine.

A search of the Mustang turned up various items taken from D.W.'s home, including the sword, three handguns, radios and knives. They also found bolt cutters, a duffel bag containing a baggie of methamphetamine, smoking paraphernalia, and a fourth handgun, which was loaded.

Dunbar was interviewed at the scene and claimed not to know the driver of the Mustang. According to Dunbar, he knew the driver only as "Tom." However, at trial, Dunbar claimed he told the officers the driver's name was "John." He denied that defendant had been the driver.

Defendant was arrested on September 12, 2007. Later that day, Van Assen was working at the jail and saw defendant being booked. He immediately recognized defendant as the driver of the Mustang on August 22.

Defendant's mother, J.S., was called to testify at trial. In a taped jail conversation, defendant had asked J.S. to tell his attorney that he had been with her the night of August 22. She refused. J.S. testified that her brother, Joseph, had called that evening to tell her about the call he received from Sergeant Buehler. According to J.S., defendant arrived home some time after that call from her brother.

Defendant presented an alibi defense. M.M. testified that she had a blind date on the evening of August 21, 2007, but was "stood up." She and a friend, T.W., remained at a bar until 1:00 or 1:30 a.m. on August 22 and then walked to the trailer of T.W.'s friend, A.L. Sr. While there, they met A.L. Sr.'s son, A.L. Jr., and his friend named "Tommy," who M.M. identified in court as defendant. M.M. testified defendant was working on his truck and remained with them until 2:30 or 3:00 a.m., at which time he left with a tow truck driver.

A.L. Jr. also testified about that evening. According to A.L. Jr., defendant was working on his truck at the trailer until approximately 1:45 or 2:00 a.m. the evening of August 22 or 23. A.L. Jr. testified M.M. showed up ...


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