P. v. Butler 9/27/04 CA1/2

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A101799

Case Date: 09/27/2004

Preview:Filed 9/27/04

CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. WILLIAM FELTON BUTLER, Defendant and Appellant. PUBLISHED PART I. INTRODUCTION William Felton Butler was convicted by a jury of kidnapping, first degree robbery, second degree robbery, making criminal threats, offering to sell or selling a substance in lieu of a controlled substance, assault, and battery. He was sentenced to a total term of 11 years and eight months in state prison. Butler contends his conviction for offering to sell or selling a substance in lieu of a controlled substance must be stricken because Lysergic Acid Diethylamide (LSD) is not a controlled substance identified in Health and Safety Code section 11355, the statute he was charged with violating. Butler also contends the entire judgment must be reversed because the trial court abused its discretion and violated due process by permitting a witness named Parrish Pike to invoke his privilege against self-incrimination and then by precluding Butler from calling an investigator to testify about statements Pike allegedly made. Finally, Butler contends his sentence is unconstitutional and must be reversed A101799 (Humboldt County Super. Ct. No. CR024877S)

Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts III.A. and B. 1

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pursuant to Blakely v. Washington (2004) __U.S. __, [124 S.Ct. 2531] (Blakely). We reject both of Butler's substantive challenges to the judgment and find that the sentencing error that occurred in this case does not require us to remand the matter for resentencing. II. STATEMENT OF FACTS At around 8:00 p.m. on September 30, 2002, Chris Edwards met Butler in the hallway of the Arcata apartment building where they both lived. Edwards invited Butler into his apartment which he shared with his friend, Alexander Dinwiddie. Butler introduced himself as "Billy Bad Ass," and asked Dinwiddie for a ride to Garberville in southern Humboldt County. Dinwiddie agreed to give Butler a ride. Dinwiddie's friend, Michael Smith, agreed to join them. At trial, Dinwiddie testified that Butler agreed to pay him $200 for the ride. Smith testified that Butler agreed to pay Dinwiddie $500 and Smith $200 in exchange for the ride. The three men left in Dinwiddie's car at around 8:30 p.m., after Butler put his backpack in the car trunk. During the ride, Dinwiddie and Butler smoked marijuana and Butler also used methamphetamine. Smith had smoked marijuana before the car ride. At some point during the drive, Butler became hostile and threatening and demanded that Dinwiddie drive him to Pismo Beach so he could sell some LSD he had with him. Dinwiddie and Smith said they had school the next day and could not go that far. Butler said he had a loaded weapon in the car and he was not afraid to use it. He threatened to kill Dinwiddie and Smith or to have the Hell's Angels kill them if they did not take him to Pismo Beach. Butler also punched Dinwiddie in the face causing him to swerve on the highway. Dinwiddie was afraid and continued to drive south. Somewhere south of Willits, Dinwiddie stopped at a casino because Butler wanted to gamble. Butler took the car keys and told Dinwiddie and Smith that if they spoke to anyone he would call the police and report that the contraband in Dinwiddie's car belonged to them. Dinwiddie and Smith did not try to escape but accompanied Butler into the Casino and waited while he gambled for around twenty minutes. When the group began driving again, Dinwiddie repeated that he did not want to go any farther south. Butler punched him in the face, arm and chest. Dinwiddie was afraid and 2

continued to drive. Butler insisted on driving part of the time and acted paranoid and looked for police. Whenever the group stopped, Butler either took the keys or he took Smith with him and threatened to kill Smith if Dinwiddie left. The group arrived in Pismo Beach early on the morning of October 1, 2002. Butler made Dinwiddie and Smith walk with him on a pier and elsewhere to help him look for a man named Jack, but they never found him. At one point Butler went in the water but Dinwiddie and Smith did not try to get away. Before leaving Pismo Beach, Dinwiddie called the radio station where he worked to report he would not be at work the next day. Dinwiddie said he was involved in an emergency but did not say anything more because Butler had threatened to cut off his fingers and to drag him behind a motorcycle if he told anyone at the station what was happening. When the group started driving again, Dinwiddie decided he had had enough and started driving north. Butler became irate, said Dinwiddie had "messed up his deal," and demanded that Dinwiddie give him $5,000 and title to his car which Dinwiddie refused to do. Butler instructed Dinwiddie to stop in Fairfax, so he could try to sell LSD on the street. Butler took Smith with him while Dinwiddie waited in the car. Butler made Smith carry his backpack and said if the police stopped them he would say the drugs belonged to Smith. During the thirty-minute walk around Fairfax, Butler repeatedly offered to sell LSD but did not make any sales although he did sell some marijuana. Butler again blamed Dinwiddie for messing up his deal and demanded $5,000 and title to the car, threatening that if Dinwiddie did not comply something bad would happen and he would not see Humboldt again. When Dinwiddie argued back, Butler hit him several times forcing him to stop the car. Butler told Dinwiddie to stop at a bar in Santa Rosa. He pointed out a Harley Davidson motorcycle that he said would have been his if Dinwiddie had not "screwed up [his] deal." He also pointed out a man he claimed was his uncle and said that he and his uncle would kill Dinwiddie unless he went to an Automatic Teller Machine (ATM) and withdrew as much money as possible. Butler also claimed his friends would tie Dinwiddie to the back of a motorcycle and drag him. Dinwiddie withdrew $400 from an 3

ATM machine and gave it to Butler who threatened to kill him if he refused. Butler complained it was not enough but said it would "do for now." The group arrived back at Dinwiddie's apartment building in Arcata at around 3:00 a.m. on October 2. Butler forced Dinwiddie to get and then sign over the title to his car by threatening to come looking for him and to hurt him if he refused. Butler also threatened to cause a "world of pain" if Dinwiddie or Smith told anybody about what happened. After leaving Butler, Dinwiddie called his father and told him what had happened. Dinwiddie's father called the police who contacted Dinwiddie at around noon. He was scared to talk but did eventually tell the police what happened. Later that day, Butler's roommate returned the car keys to Dinwiddie. Dinwiddie gave police permission to search the car where they discovered Butler's backpack which contained serrated colored sheets which appeared to be more than 50,000 hits of LSD. Presumptive tests showed the sheets were LSD. However, subsequent test results established that the substance was not LSD. Butler offered a substantially different version of these events when he testified at his trial. Butler testified that he asked Dinwiddie for a ride to Pismo Beach so he could pick up some money from his friend Jake. Initially, Butler testified that Jake was going to pay him for some "blotter art paper" that another friend had given him. However, later during his testimony, Butler denied that he planned to sell or give the paper to Jake and claimed that Jake was simply going to pay back some money he owed Butler. Butler testified Dinwiddie became very "excited" when Butler showed him the art paper. So Butler agreed to give him ten sheets of the paper in exchange for a ride. Butler testified that he did not ever tell Dinwiddie the paper was LSD but that it was clear that Dinwiddie thought it was. Butler also testified that Dinwiddie sold some of the paper to a friend who was present in the apartment for $200 and that Butler let Dinwiddie keep the money as partial payment for the ride to Pismo Beach. Butler testified that he also gave some of the paper to Smith who agreed to come along on the drive for company because Butler had said he might decide to stay in Pismo Beach.

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Butler testified that, although he was not very familiar with LSD, he knew the art paper was not LSD. However, Butler subsequently testified that he thought the paper might have been LSD when he saw how people reacted after taking it. Indeed, Butler admitted he may even have told someone the paper was LSD. Still, Butler denied that he ever tried to sell the paper to anyone. Butler also denied that he kidnapped Smith and Dinwiddie, that he threatened them or that he forced them to do anything. He further denied that he robbed Dinwiddie, hit him or forced him to sign over title to the car. Butler testified that, after the car trip, Dinwiddie offered to sell him the car in exchange for cash and 10 additional sheets of paper. Butler gave Dinwiddie the sheets but said he would have to pay the cash later. According to Butler, Dinwiddie said "no problem," and gave Butler the keys and signed over the title. END PUBLISHED PART III. A. DISCUSSION Sale or Furnishing Substance Falsely Represented to Be LSD Butler contends that his conviction for violating section 11355 of the Health and Safety Code must be stricken because LSD is not a controlled substance specified in any of the provisions of that statute.1 The People disagree and maintain Butler's conviction is proper because lysergic acid is a controlled substance "`classified in Schedule III' to which Health and Safety Code section 11355 refers." Section 11355 states: "Every person who agrees, consents, or in any manner offers to unlawfully sell, furnish, transport, administer, or give (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (13), (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule

All statutory references are to the Health and Safety Code unless otherwise indicated. 5

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III, IV, or V which is a narcotic drug to any person, or who offers, arranges, or negotiates to have any such controlled substance unlawfully sold, delivered, transported, furnished, administered, or given to any person and who then sells, delivers, furnishes, transports, administers, or gives, or offers, arranges, or negotiates to have sold, delivered, transported, furnished, administered, or given to any person any other liquid, substance, or material in lieu of any such controlled substance shall be punished by imprisonment in the county jail for not more than one year, or in the state prison." (Emphasis added.) As noted, the list of controlled substances set forth in subdivision (2) of section 11355 includes any controlled substance "classified in Schedule III, . . . which is a narcotic drug . . . ." Lysergic acid is classified in Schedule III, but as a "Depressant," not as a "narcotic drug." (

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