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Court of Appeal, First District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. William Felton BUTLER, Defendant and Appellant.

No. A101799.

Decided: September 27, 2004

Louisa Havstad, Occidental, CA, for Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Ann P. Wathen, Deputy Attorney General, for Defendant-Appellant.


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 pursuant to Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (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.


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 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 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 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.

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.


A.-B. **

C. Sentencing Error

1. Background

As noted in our Introduction, the trial court sentenced Butler to a total prison term of 11 years and 8 months.   Included therein was an upper term sentence of eight years for kidnapping.   The trial court imposed this upper term based on its findings of several aggravating factors and no mitigating factors.   The aggravating factors identified by the court were:  (1) the kidnapping involved the threat of great bodily harm;  (2) the crime involved a large quantity of contraband;  (3) Butler took advantage of a position of trust or confidence;  (4) Butler engaged in violent conduct;  (5) Butler's prior convictions are both numerous and of increasing seriousness.  (See Cal. Rules of Court, rule 4.421.5 )

While this appeal was pending, Butler obtained leave of this court to file a supplemental brief alleging a sentencing error based on the United States Supreme Court's recent decision in Blakely, supra, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403.   Butler contends that the trial court violated Blakely by imposing an upper term sentence for the kidnapping conviction.6

2. Error

In Blakely, the Supreme Court held that a Washington State court denied a criminal defendant his constitutional right to a jury trial by increasing the defendant's sentence for second-degree kidnapping from the “standard range” of 49 to 53 months to 90 months based on the trial court's finding that the defendant acted with “deliberate cruelty.”  (Blakely, supra, 542 U.S. at p. 303, 124 S.Ct. at p. 2537.)   The Blakely court found that the state court violated the rule previously announced in Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (Apprendi ) that, “ ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ ”  (Blakely, supra, 542 U.S. at p. 301, 124 S.Ct. at p. 2536.)   In reaching this conclusion, the court clarified that, for Apprendi purposes, the “statutory maximum” is “not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.”  (Id. at p. 2537.)

Butler contends that the trial court violated Blakely to the extent it relied on four “non-recidivist” aggravating factors to impose the upper term for his kidnapping conviction.   Butler does not question the validity of the fifth aggravating factor articulated by the trial court, i.e., Butler's record of numerous and increasingly serious prior convictions.

Under California's determinate sentencing law, the maximum sentence a judge may impose for a conviction without making any additional findings is the middle term.  Penal Code section 1170, subdivision (b), states that “the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.”   Furthermore, rule 4.420(b), states that “[s]election of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation.”   In the present case, the trial court followed these directives;  it found five aggravating circumstances and no mitigating circumstances and that the aggravating circumstances warranted imposing an upper term sentence for kidnapping.   Nevertheless, the court violated Blakely because four of the aggravating factors that it articulated (1) did not relate to a prior conviction and (2) were additional findings made by the court rather than by a jury.

 The People contend that California's “triad” sentencing system does not offend Blakely at all;  that any one of the three legislatively-authorized terms for an offense, including the upper term, can be imposed by a trial court without violating a defendant's Sixth Amendment rights.   Under their view of this system, although there is a “presumptive mid-term sentence,” the upper term is the statutory maximum sentence which the trial court has discretion to impose.   The People's argument may have been persuasive before Blakely was decided.   Now, however, it is flatly contradicted by the Supreme Court's holding that the statutory maximum is “not the maximum sentence a judge may impose after finding additional facts,” but rather the sentence it may impose without making any additional findings.  (Blakely, supra, 542 U.S. at pp. 304-305, 124 S.Ct. at p. 2537.)   Under California law, the maximum sentence a judge may impose without any additional findings is the middle term.   (Pen.Code, § 1170, subd. (b);  rule 4.420.)

 We also reject the People's contention that Butler forfeited his right to claim Blakely error by failing to raise this issue in the trial court.   Because of the constitutional implications of the error at issue, we question whether the forfeiture doctrine applies at all.  (See People v. Vera (1997) 15 Cal.4th 269, 276-277, 62 Cal.Rptr.2d 754, 934 P.2d 1279 [claims asserting deprivation of certain fundamental, constitutional rights not forfeited by failure to object].)   Furthermore, there is a general exception to this rule where an objection would have been futile.  (People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648, 130 Cal.Rptr.2d 873, and authority discussed therein.)   We have no doubt that, at the time of the sentencing hearing in this case, an objection that the jury rather than the trial court must find aggravating facts would have been futile.  (See Pen.Code, § 1170, subd. (b);  rules 4.409 & 4.420-4.421.) In any event, we have discretion to consider issues that have not been formally preserved for review.  (See 6 Witkin & Epstein, Cal.Criminal Law (3d ed.   2000) Reversible Error, § 36, p. 497.)   Since the purpose of the forfeiture doctrine is to “encourage a defendant to bring any errors to the trial court's attention so the court may correct or avoid the errors,” (People v. Marchand (2002) 98 Cal.App.4th 1056, 1060, 120 Cal.Rptr.2d 687), we find it particularly inappropriate to invoke that doctrine here in light of the fact that Blakely was decided after Butler was sentenced.7

 Thus, we find that the trial court violated Blakely by relying on four “non-recidivist” factors to impose the upper term for the kidnapping conviction.   However, we reject Butler's contention that this error requires reversal of his sentence.

3. Prejudice

 Since the Blakely court rested its holding on Apprendi, we apply the standard of prejudice applicable to Apprendi errors which is the “Chapman test.”  (See People v. Sengpadychith (2001) 26 Cal.4th 316, 326, 109 Cal.Rptr.2d 851, 27 P.3d 739.)   Applying that test, we must determine whether the failure to obtain jury determinations as to the aggravating factors discussed above was harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.)   We are unwilling to find that, beyond a reasonable doubt, a jury would have made findings to support the aggravating factors discussed above.   Thus, those aggravating factors cannot be used to support the trial court's sentencing choice in this case.   However, this conclusion does not end our analysis.

 Although Blakely error is evaluated under the Chapman test, under California law, “[w]hen a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen the lesser sentence had it known that some of its reasons were improper.”  (People v. Price (1991) 1 Cal.4th 324, 492, 3 Cal.Rptr.2d 106, 821 P.2d 610;  see also People v. Osband (1996) 13 Cal.4th 622, 728, 55 Cal.Rptr.2d 26, 919 P.2d 640.)   Further, a single factor in aggravation is sufficient to support imposition of an upper term.  (People v. Osband, supra, 13 Cal.4th at p. 728, 55 Cal.Rptr.2d 26, 919 P.2d 640;  People v. Cruz (1995) 38 Cal.App.4th 427, 433, 45 Cal.Rptr.2d 148;  see also People v. Kelley (1997) 52 Cal.App.4th 568, 581, 60 Cal.Rptr.2d 653;  People v. Piceno (1987) 195 Cal.App.3d 1353, 1360, 241 Cal.Rptr. 391;  People v. Lamb (1988) 206 Cal.App.3d 397, 401, 253 Cal.Rptr. 465.)

Thus, although we disregard the aggravating factors discussed above, because we cannot say beyond a reasonable doubt that a jury would have made findings to support them, we must also consider whether there is one or more aggravating factors which support Butler's upper term sentence, and, if so, whether it is reasonably probable the trial court would have imposed a lesser sentence had it realized that some of the aggravating factors upon which it relied were not valid.

As noted above, the trial court in this case identified five aggravating factors to support the upper term sentence.   However, Butler has successfully challenged only four of those factors.   The fifth factor was a finding pursuant to rule 4.421(b)(2), that Butler has a record of numerous and increasingly serious prior convictions.   In contrast to the other factors upon which the trial court relied, this trial court finding is, to use Butler's terminology, a “recidivist factor.”

 We underscore the fact that Butler has not challenged the validity of this fifth aggravating factor.   We add that there is authority that this factor was properly used by the trial court to support the upper term sentence.   The requirement that a fact which increases a sentence beyond the statutory maximum must be found by a jury does not apply to the fact of a prior conviction.   (Almendarez-Torres v. United States (1998) 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350;  Apprendi, supra, 530 U.S. at pp. 488, 490, 120 S.Ct. 2348;  Blakely, supra, 542 U.S. at pp. 300-302, 124 S.Ct at p. 2536.)   This prior conviction exception to the Apprendi rule has been construed broadly to apply not just to the fact of the prior conviction, but to other issues relating to the defendant's recidivism.  (See, e.g., People v. Thomas (2001) 91 Cal.App.4th 212, 216-223, 110 Cal.Rptr.2d 571.)   We recognize that, in some cases, extrinsic facts relating to a recidivist aggravating circumstance may implicate Apprendi.   However, we face no such issue here since Butler has not challenged the validity of the fifth aggravating factor identified by the trial court in this case.

 Under these circumstances, there was one proper aggravating factor articulated by the trial court.   As noted above, that factor was sufficient to support the upper term sentence.   Further, the trial court expressly found that there were no mitigating factors in this case and that “the aggravating factors and any of them in and of themselves outweigh the lack of any mitigating factors.”  (Emphasis added.)   Since the court clearly expressed its intent to impose the upper term even if only one of the aggravating factors it identified was proper, we find no likelihood that the court would have imposed a lesser term had it known that some of the aggravating factors upon which it relied were improper.   Therefore, we reject Butler's contention that Blakely requires that Butler's sentence be reversed.


The judgment is affirmed.   This case is remanded to the superior court with the direction that it correct the abstract to show a conviction under section 11382 rather that 11355, and that it strike the section 11372 fine.


FOOTNOTE.   See footnote *, ante.

5.   All further references to rules are to the California Rules of Court.

6.   Butler and the People agree that the ruling in Blakely applies here because the appeal in this case was pending when Blakely was decided.  (See Griffith v. Kentucky (1987) 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 [“a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.”];   see also People v. Ashmus (1991) 54 Cal.3d 932, 991, 2 Cal.Rptr.2d 112, 820 P.2d 214.)

7.   We are not persuaded otherwise by the People's troubling reliance on two federal cases, United States v. Cotton (2002) 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (Cotton) and United States v. Ameline (2004) 376 F.3d 967 (Ameline).   The People erroneously contend these cases support their view that a Blakely claim can properly be deemed “forfeited” under California law, and thus not subject to review at all, even when, as here, Blakely was decided after the defendant's sentencing hearing.As any fair analysis of these federal cases should acknowledge, characterizing a claim as “forfeited” under federal law does not mean the claim is not reviewable on appeal.   Rather, such a claim is reviewed for “plain error” pursuant to rule 52(b) of the Federal Rules of Criminal Procedure.  (See Cotton, supra, 535 U.S. 625, 631-632, 122 S.Ct. 1753, 152 L.Ed.2d 871;  Ameline, supra, 376 F.3d 967, 978-979.)   In their supplemental brief, the People acknowledge that a plain error analysis was applied in Cotton but then argue that such an analysis is inapplicable in this state appeal.   We agree.   But, by the same token, these federal cases are not sound authority for denying any review of a state law claim which arose while the criminal appeal was pending.In any event, California has a well-recognized waiver rule (see, e.g., People v. Scott (1994) 9 Cal.4th 331, 351-356, 36 Cal.Rptr.2d 627, 885 P.2d 1040) applicable in circumstances of this sort and, as noted above, we have no problem in holding there was no waiver of Blakely error.  (See, to the same effect, People v. Ochoa (1994) 121 Cal.App.4th 1551, 18 Cal.Rptr.3d 365 [2004 Cal.App. LEXIS 1464, at p. 6];  People v. George (2004) 122 Cal.App.4th 419, 18 Cal.Rptr.3d 651 [2004 Cal.App. LEXIS 1532].)   To the extent the recent decision of the Third District in People v. Sample (2004) 122 Cal.App.4th 206, 18 Cal.Rptr.3d 611 [2004 Cal.App.LEXIS] holds to the contrary, we respectfully disagree with it.


We concur:  KLINE, P.J., and RUVOLO, J.

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