People v. Butler CA2/1

Filed 6/24/14 P. v. Butler CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B249957

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA126728) v.

MELVIN DAVON BUTLER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Laura R. Walton, Judge. Affirmed as modified. Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Michael Katz, Deputy Attorney General, for Plaintiff and Respondent. ______________________

A jury convicted defendant of one count of shooting at an inhabited dwelling (Pen. Code,1 § 246, count 1) and one count of attempted premeditated murder (§§ 664, 187, subd. (a), count 2). Defendant argues the trial court erred in failing to stay his sentence on count 1 pursuant to section 654 because both counts arise out of an individual course of conduct, namely the shooting of one victim. We affirm defendant’s conviction, but modify the judgment to stay a section 12022.53, subdivision (d) enhancement on count 1. FACTUAL BACKGROUND AND PROCEDURAL HISTORY On October 23, 2011, Tanesha Reed lived on East 103rd Street with her son. That day, she went to visit her friend Dominique Carter, who lived around the corner with Semaj Battle. Carter was the mother of Battle’s two children. Reed saw Battle playing dice with defendant and two other men. Later, she made arrangements to go to Carter’s home for a barbeque with her six-year-old son. When Reed arrived at Carter’s house, Carter’s two children were there, as well as Carter’s sister Gina and Gina’s infant girl. About 15 minutes later, Battle came to the house and Reed observed that his mouth was bleeding. Battle told them defendant hit him in the face, and Battle hit defendant back. Battle wanted everyone to leave the house because he was afraid defendant would come and start another fight. Everyone went inside and locked the doors, and defendant walked by the house. All of the children were in a bedroom. Reed looked outside through the screen door and saw defendant with a gun standing at the front door. Battle asked defendant what he was doing at his house. Defendant started shooting. Reed heard three shots, and Battle fell over and screamed, “I’m hit.” Gina hid with the children in a bedroom closet. Defendant came in through the kitchen door with the gun in his hand. Battle went into a bedroom, shut the door, and sat on the floor near the bedroom door. Defendant forced his way into the room and Battle and defendant started fighting. Carter called 911. Defendant was on top of Battle trying to choke Battle. Carter grabbed a bottle of vodka