People v. Butler CA3

Filed 4/22/14 P. v. Butler CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C072594

Plaintiff and Respondent, (Super. Ct. No. SF113454A)

v.

TIRELL BUTLER,

Defendant and Appellant.

A jury convicted defendant Tirell Butler of transportation of cocaine (count two), transportation of cocaine base (count four), and transportation of ecstasy (count five). The trial court declared a mistrial on three other counts and they were ultimately dismissed. The court found defendant had two prior strike convictions, had served two prior prison terms, and had a 2001 prior conviction for cocaine base for sale. Pursuant to Proposition 36, the Three Strikes Reform Act of 2012, the court sentenced defendant to

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13 years on count two and imposed sentences on counts four and five, but stayed them pursuant to Penal Code section 654. On appeal, defendant contends the trial court prejudicially erred in instructing the jury on moral turpitude, on consciousness of guilt, and in refusing to give his proffered pinpoint instruction on third party culpability. Finding no merit to any of the contentions, we affirm the judgment.

FACTS AND PROCEEDINGS

Around 10:00 or 11:00 p.m., on November 21, 2009, Stockton Police Officers Carlos Vina and Mitch Tiner were on patrol looking for Syldarius Grant (Syldarius), a parolee at large, when they stopped a car Syldarius was known to drive. As Officer Vina approached the car, the driver yelled, “I’m not the person you’re looking for.” The driver was defendant, who is Syldarius’s cousin, and he admitted he was on parole. A search of a leather jacket defendant was wearing disclosed packets of cocaine, cocaine base, and ecstasy. Expert testimony established the drugs were possessed with intent to distribute. Defendant testified that about 8:00 p.m. on the evening in question, he had driven his van from a hospital where his wife had surgery to the home of his uncle, Sylvester Grant (Sylvester), to check on him because he had cancer. Upon arriving at Sylvester’s home, defendant locked the keys inside the van. Sylvester gave defendant permission to borrow his car and defendant got the keys from Syldarius, who also used the car. Inside the car was a leather jacket which defendant put on because it was cold and the car had no heat. Defendant picked up a friend of his sister’s and drove her to his sister’s home in Manteca. When defendant got back to Stockton, he was stopped by Officers Vina and Tiner. Officer Vina found drugs in the leather jacket, and defendant told Officer Tiner they were not his. Defendant knew that Syldarius was wanted and that he was a gang member who sold drugs. Although defendant knew the jacket belonged to