People v. Butler CA2/4

Filed 9/1/16 P. v. Butler CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B262334

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA090523) v.

L.C. LEWIS BUTLER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Teri Schwartz, Judge. Affirmed in part, reversed and remanded in part. C. Matthew Missakian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant L.C. Lewis Butler was charged by information in count 1 with 1 first degree burglary (Pen. Code, § 459) and in count 2 with evading an officer (Veh. Code, § 2800.2, subd. (a)). In each count it also was alleged that defendant had suffered two prior strike convictions under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), two prior serious felony convictions (§ 667, subd. (a)(1)), and that he had served four prison terms (§ 667.5, subd. (b)). After defendant pled no contest to count 2, a jury trial was held on count 1, with trial on defendant’s alleged priors being bifurcated. The jury convicted defendant on count 1. The bifurcated trial on the priors was continued several times, but never held. Nonetheless, the court and parties proceeded as if the priors allegations had been found true. The court denied defendant’s motion to strike his strike convictions (see People v. Superior Court (Romero) (1996) 13 Cal.4th 497), and sentenced him to term of 35 years to life in state prison: 25 years to life (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) on count 1 plus 10 years for the two five year priors (§ 667, subd. (a)(1)). Appellant’s sentence on count 2 was stayed pursuant to section 654. Defendant appeals from the judgment of conviction, contending that: (1) the case must be remanded for a determination of the alleged priors and resentencing, and (2) the court misunderstood its discretion to strike defendant’s prior strike convictions. We agree with the first contention, and decline to consider the second. We therefore reverse the judgment, and remand for further proceedings on the priors allegations and for resentencing.