SB 567 Resentencing Because Jury Findings Unclear

In November 2021, in San Bernardino Superior Court, a jury convicted Rahsaan Wayne Butler of one count of attempted voluntary manslaughter (Penal Code §§ 192(a), 664) as well as assault with a deadly weapon (Penal Code § 245(a)(2)) and being a felon in possession of a firearm (Penal Code § 29800(a)(1)). The jury found true a firearm use enhancement under Penal Code § 12022.5(a) and that Mr. Butler caused great bodily injury under Penal Code § 12022.7(a).

At trial, the parties stipulated that Mr. Butler previously had been convicted of the following four felonies: 1) in 2005, a violation of Penal Code § 476 (check fraud); 2) in 2011, a violation of Penal Code § 290.011(b) (a transient who fails to update his registration as a sex offender within five days when changing one’s residence); 3) in 2014 and 2019, of Penal Code § 69, resisting arrest causing injury to a police officer.

The facts of the attempted voluntary manslaughter case were that Mr. Butler got into a fight with his friend, Robert H. Robert swung at Mr. Butler first, hitting him on the head with brass knuckles. A video of the fight was shown to the jury. Mr. Butler then took a firearm out of his waistband and tried to shoot Robert, but the gun jammed. Robert then tackled Mr. Butler and the two wrestled on the ground. Robert then got up and Mr. Butler shot him in the chest.

A bystander drove Robert to the hospital, where he was then taken by helicopter to another hospital. He was in critical but stable condition and underwent surgery.

Mr. Butler left the scene before law enforcement arrived. He took the gun to a gunsmith, who melted down the gun.

Mr. Butler then called a detective and told him that he acted in self-defense. He admitted that he carried a .22 caliber firearm on the evening.

Law enforcement did not find brass knuckles at the motel, in Robert’s van, or at the initial hospital he was taken to.

The probation officer assigned to the case noted for the judge that Mr. Butler’s criminal history showing an increasing trend in violence and that his prior performance on probation and parole had been unsatisfactory. The report did acknowledge that Mr. Butler had not been the initial aggressor.

At sentencing, Judge Shannon Faherty imposed the upper term of five years and six months for the attempted voluntary manslaughter conviction (attempted manslaughter is punishable by 18 months, three years or five years and six months), the upper term of ten years for the related firearm enhancement (the punishment for attempted use of a firearm is 3, 4 or 10 years), and three years for the great bodily injury enhancement, all to run consecutively. For the assault conviction, Judge Faherty stayed the sentences imposed for than conviction under Penal Code § 654. For the firearm possession conviction, Judge Faherty sentenced Mr. Butler to eight months (one-third the midterm of two years) to run consecutively. Mr. Butler was thus sentenced to 19 years and two months.

Judge Faherty explained her sentencing as relying upon the factors outlined in the probation report, specifically the violence and great bodily harm, his prior convictions of increasing seriousness, prior prison terms and poor performance on probation or parole. Judge Faherty did not cite to anything presented at trial that a jury would have had listened to or seen.

Mr. Butler appealed his sentence to the Fourth Appellate District in Riverside, arguing that he was entitled to resentencing under Senate Bill 567, as it amended Penal Code § 1170, because none of the aggravating factors were proved to a jury beyond a reasonable doubt, admitted by him or based on prior convictions proved by certified records of convictions.

In response, the People opposed resentencing, arguing that any error was harmless.

The Fourth Appellate District Court agreed with Mr. Butler, citing to People v. Lopez (2022) 78 Cal. App. 5th 459, 465-468. In Lopez, the Fourth Appellate District explained, the harmlessness in sentencing argument must first be evaluated for whether prejudice resulted from failure to apply the new version of 1170 is whether the reviewing can conclude beyond a reasonable doubt that that a jury would have found true beyond a reasonable doubt all of the aggravating factors on which the trial court relied in exercising its discretion to select the upper term.

Here, not all the aggravating factors survived the first step of the harmlessness analysis because the jury simply did not have access to the probation report and the prior convictions were not admitted into evidence. Applying Lopez, the appellate court was persuaded beyond a reasonable doubt that the trial court only relied upon one aggravating factor that would still be permissible – Mr. Butler’s four prison priors could have been proven by certified court records.

However, the appellate court could not conclude beyond a reasonable doubt that a jury would have found true beyond a reasonable doubt the remaining aggravating factors on which Judge Faherty relied in exercising her discretion to select the upper term.

Therefore, Mr. Butler’s sentence was vacated and the case was remanded for resentencing.