P. v. Butler CA5

Filed 3/8/13 P. v. Butler CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent, F063819

v. (Super. Ct. No. MCR040734)

KAREN BUTLER, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, Judge. Suzanne M. Morris, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Wiseman, Acting P.J., Levy, J. and Cornell, J.

A jury convicted appellant, Karen Butler of possessing a weapon while confined in a penal institution (Pen. Code, § 4502, subd. (a)).1 In a separate proceeding, the court found true an allegation that Butler had a prior conviction within the meaning of the “Three Strikes” law (§ 667, subds. (b)-(i)). On November 4, 2011, the court sentenced Butler to a four-year term (the mitigated term of two years doubled because of Butler‟s prior strike conviction), which it imposed consecutive to the term Butler was serving when she committed the possession offense. On appeal, Butler contends: 1) the court committed instructional error; and 2) she was denied the effective assistance of counsel. We affirm. FACTS On the evening of February 14, 2011, Correctional Officer Alicia Benafield was conducting a count at Valley State Prison for Women when she saw Butler standing at the window of the door to her cell. Butler asked to speak with “the sergeant.” Benafield told her that as soon as she completed the count she would call the sergeant and tell him Butler would like to speak with him. She also told Butler to go sit down on her bunk. All the other inmates in Butler‟s cell were on their bunks at the time. Benafield continued down the hall taking the count and did not hear anything from Butler‟s cell. Approximately two minutes later when she was at the cell across from Butler‟s cell, Benafield saw Butler at the window of her cell door swinging an object in a white sock. She also heard Butler say, “I‟m going to hit you bitches.” Benafield pressed an alarm which alerted other staff that an inmate might be in possession of a weapon. She ordered Butler to get on the ground and drop the weapon and Butler complied. Benafield recovered the weapon, which turned out to be a slug made from a lock inside a sock.