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District Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Merle BUTTS and William Gerald Otwell, Defendants and Appellants.

Cr. 3558.

Decided: April 06, 1965

Stanley Mosk and Thomas C. Lynch, Attys. Gen., by Doris Maier, Asst. Atty. Gen., and Raymond M. Momboisse and Daniel J. Kremer, Deputy Attys. Gen., Sacramento, for plaintiff-respondent. Andrew J. Hollis, Oroville, for defendant-appellant Butts. L. Miles Snyder (court appointed), Sacramento, for defendant-appellant Otwell.

In applying for a rehearing the Attorney General has called our attention to proceedings involving defendant Charles Butts of which we were unaware when we filed our decision of March 12, 1965. The judgment of the trial court rendered December 31, 1963, directed Butts' commitment to state prison for manslaughter and imposed county jail terms of one year for conspiracy and of six months each on two assault counts, the county jail terms running concurrently with each other and with the state prison term. We were thus led to believe that Butts had been in the state prison pending appeal. In reversing his conviction of two charges of simple assault, we directed that he not be retried on these particular charges, since his supposed imprisonment pending appeal had apparently satisfied the judgment on the assault counts.

The Attorney General has now lodged with us certified copies of post-conviction proceedings demonstrating that on February 25, 1964, the trial court ordered Butts admitted to bail pending appeal, and bond having been furnished, later entered an order recalling the commitment and ordering Butts' release pending appeal; that Butts was in fact released from the California Medical Facility on March 11, 1964, and has been at liberty ever since. Although the Attorney General now suggests that we order augmentation of the record to include these proceedings, such an order is not necessary since we may take judicial notice thereof. (People v. Rojas, 57 Cal.2d 676, 21 Cal.Rptr. 564, 371 P.2d 300.) It is now apparent that the reason we assigned for not retrying Butts on the assault charges is actually nonexistent. Under the circumstances the last two sentences in the last paragraph of our decision of March 12, 1965, Cal.App., 43 Cal.Rptr. 172, are deleted and the following substituted in lieu thereof:

‘The judgment of conviction of involuntary manslaughter and of two counts of simple assault is reversed with directions that he be retried on any or all those charges if the People so elect.’

The petition for rehearing is denied.


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