Filed 11/13/20 P. v. Butler CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B302305
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA477764)
v.
ROBERT BUTLER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael D. Abzug, Judge. Reversed and
remanded.
G. Martin Velez, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Michael Katz, Deputy
Attorneys General, for Plaintiff and Respondent.
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A jury found Robert Butler guilty of simple assault. On
appeal, he contends the trial court erred by admitting evidence of
uncharged acts. Because we agree that the erroneous admission
of prior uncharged acts prejudiced Butler, we reverse the
judgment on that ground.
BACKGROUND
An information charged Butler with assault with a deadly
weapon. At Butler’s jury trial, a restaurant employee testified
that on May 10, 2019 she was sweeping outside the restaurant
where she worked. Butler approached her from behind and
grabbed her hand. He left, taking her broom with him. When
the employee told the restaurant’s security guard what had
happened, he followed Butler and asked what he was doing.
Butler ignored the guard and walked past him. Following Butler,
the guard asked again what he was doing. Butler broke the
brush off the broom and swung the steel handle at the guard,
yelling at the guard to leave him alone. The guard sprayed
Butler with pepper spray, but Butler kept swinging the broom
handle, so the guard sprayed him again. The guard pulled out
his baton, but Butler knocked it from his hand and struck the
guard with the broom handle. The guard chased Butler to an
alley where Butler pulled out a small knife and swung it at the
guard, who then drew his gun. Butler walked away, and the
guard called the police. Butler hid in a dumpster but was found
and arrested. A knife was not recovered.
Butler committed a similar act two years earlier, in 2017.
At that time, a shopping mall security guard had been instructed
that Butler was not allowed on the premises. When the shopping
mall security guard saw Butler on the premises, he told Butler he
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was not allowed there. Butler pointed a knife at the guard, who
backed away and said he was calling the police.
Based on this evidence, a jury found Butler not guilty of
assault with a deadly weapon but guilty of simple assault (Pen.
Code,1 §§ 240, 241, subd. (a)). On November 4, 2019, the trial
court sentenced Butler to 180 days in county jail with credit for
time served.2
DISCUSSION
Over Butler’s objection, the trial court admitted the
shopping mall security guard’s testimony that in 2017 Butler
pulled a knife on him when he told Butler not to enter the
premises. The trial court found that the evidence was relevant to
show a common plan or design. That is, when a security officer
confronts Butler, Butler loses his temper and tries to strike the
officer with a weapon. Hence, the trial court admitted the
evidence under Evidence Code section 1101, subdivision (b).
However, evidence a defendant committed misconduct
other than that currently charged is inadmissible to prove the
defendant’s propensity to commit the charged crime. (Evid. Code,
§ 1101, subd. (a).) Such evidence may be admissible if it is
relevant to prove, among others, motive, opportunity, intent,
preparation, knowledge, identity, absence of mistake or accident,
1 Allfurther statutory references are to the Penal Code
unless otherwise noted.
2 Beforetrial, on day zero of 10, Butler moved to represent
himself. Judge Laura F. Priver denied the motion as untimely
without reviewing the factors in People v. Windham (1977)
19 Cal.3d 121. ~(rt b1-2)~ Because we reverse on another ground,
we do not address whether the motion was erroneously denied.
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or common plan or scheme. (Evid. Code, § 1101, subd. (b).) There
must be some degree of similarity between the charged and
uncharged crimes, but the degree of similarity depends on the
purpose for which the evidence is presented. (People v. Gutierrez
(2018) 20 Cal.App.5th 847, 859.) The least degree of similarity
between the charged and uncharged crimes is required to support
an inference of intent, while a greater degree of similarity is
required for common design or plan. (Ibid.)
To be relevant as a common design or plan, the uncharged
act must demonstrate not merely a similarity in the results but
such a concurrence of common features to indicate the existence
of a plan rather than a series of similar spontaneous acts.
(People v. Edwards (2013) 57 Cal.4th 658, 712.) The plan need
not be distinctive or unusual but need only support the inference
the defendant employed that plan in committing the charged
crime. (Ibid.; see, e.g., People v. Vargas (2020) 9 Cal.5th 793, 819
[robberies followed pattern]; People v. Jackson (2016) 1 Cal.5th
269, 304 [common plan of attacking elderly women late at night
alone in homes in same neighborhood].)
Here, Butler’s 2017 assault with a knife on a security guard
and 2019 assault with a knife on a security guard are not
evidence of a common plan. A plan is a scheme that is directed
by design. (People v. Ewoldt (1994) 7 Cal.4th 380, 396 & cases
cited therein.) There was no evidence that Butler had a scheme
to confront security guards and to pull knives on them. Indeed,
the 2019 incident did not begin with such a confrontation. It
began with Butler taking a restaurant employee’s broom. The
security guard then followed Butler, who told the guard to leave
him alone. When the guard pursued him, Butler responded by
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swinging a knife at him. A response to a situation is not the same
as a plan to create a situation.
This case is therefore more like People v. Sam (1969)
71 Cal.2d 194. During the charged crime in that case, the
defendant stomped his foot on the victim’s stomach during an
alcohol-fueled fight. (Id. at p. 199.) The prosecution introduced
evidence of two prior acts to show a common plan or scheme.
Both prior acts concerned drunken quarrels between the
defendant and the victims during which the defendant kicked the
victims. (Id. at p. 200.) The trial court reasoned that the
defendant’s universal tendency to kick people with whom he has
a confrontation established a common scheme. (Id. at p. 204.)
The Supreme Court rejected that reasoning and found no
connecting link between the charged and uncharged acts. (Id. at
p. 205; accord, People v. Scheer (1998) 68 Cal.App.4th 1009,
1021.) Instead, the acts were independent of each other and
spontaneous. (Sam, at p. 205.)
Here too the uncharged and charged acts were independent
and spontaneous. The trial court therefore erred by admitting
evidence of the 2017 uncharged act. Moreover, the error was
prejudicial. The “erroneous admission of prior misconduct
evidence does not compel reversal unless a result more favorable
to the defendant would have been reasonably probable if such
evidence were excluded.” (People v. Scheer, supra, 68 Cal.App.4th
at pp. 1018–1019; see generally People v. Watson (1956) 46 Cal.2d
818.) Here, notwithstanding the trial court’s limiting
instructions3 and the jury’s acquittal on the charged greater
3 The trial court gave two limiting instructions. First,
before the shopping mall security guard testified about the prior
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offense of assault with a deadly weapon, there is a reasonable
probability of a better outcome in the absence of evidence of the
uncharged offense.
As the verdict shows, the jury was unconvinced that Butler
assaulted the security guard with a knife. Indeed, the evidence
was that Butler took the restaurant employee’s broom and was
uncharged act, the trial court instructed the jury: The People are
about to present evidence that the defendant committed “another
offense in 2017 that is not charged in this case. If you decide that
the defendant committed the uncharged offense in 2017, you may
but are not required to consider that evidence for the limited
purpose of deciding whether the defendant had a plan or a
scheme to commit the offense alleged in this case which occurred
in 2019. [¶] In evaluating this evidence, consider the similarity
or lack of similarity between the uncharged offense in 2017 and
the acts charged in the offense in 2019 for which you are required
to reach a verdict. [¶] Do not consider this evidence for any other
purpose except the limited purpose of determining whether the
defendant had a common plan as between the two offenses. Do
not conclude from this evidence that the defendant has a bad
character or is disposed to commit a crime. [¶] If you conclude
that the defendant committed the uncharged offense in 2017,
that conclusion is only one fact you must consider along with all
the evidence, which is not sufficient by itself to prove that the
defendant is guilty of the assault with a deadly weapon in 2019.
[¶] The People must still prove that charge beyond a reasonable
doubt.”
The trial court gave a second limiting instruction when
submitting the case to the jury: “The People have presented
evidence that the defendant committed another offense in 2017
that was not charged in this case. You may consider this
evidence only if the People have proved by a preponderance of the
evidence that the defendant, in fact, committed the offense in
2017.”
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leaving when the security guard followed and confronted Butler,
who told the security to leave him alone. When the security
guard continued to pursue Butler, the situation escalated.
Moreover, a knife was not recovered. The jury therefore could
have relied on this evidence or some combination of it to conclude
Butler was not guilty of the greater offense. (See generally
Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67–68 [jury may
weave cloth of truth from evidence].) However, evidence of
Butler’s 2017 altercation with the shopping mall security guard
may have swayed the jury that Butler had a propensity for
violence, even if not necessarily a propensity to use a weapon.
The specter of Butler’s propensity for violence was further
highlighted by the restaurant employee’s reference to another
prior bad act. On cross-examination, she testified that Butler did
not hit her. To clarify the record, the trial court asked the
restaurant employee, “Did the man hit you?” She answered, “No,
I thought he was going to hit me [¶] . . . [¶] . . . [b]ecause he had
hit me before.” Defense counsel objected, and the trial court
instructed the jury that to the extent the restaurant employee
referred to an earlier incident, that testimony was stricken. Even
though the trial court struck the testimony, the prosecutor then
reinforced the intimation that Butler was a problem by eliciting
that the day of the incident was not the first time the restaurant
employee had seen Butler. He had been around “five times
because they are always going around from here to there.” The
security guard then confirmed that Butler had been coming to the
restaurant for about a month.
The restaurant employee’s statement that Butler had
previously hit her, coupled with evidence of the 2017 uncharged
offense, showed that Butler had a propensity for violence. The
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trial court’s curative measures were insufficient to overcome the
prejudice to Butler.
DISPOSITION
The judgment is reversed. The matter is remanded for a
retrial, at the People’s election, on simple assault. If the People
elect not to retry Robert Butler, then the trial court shall dismiss
the information.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
LAVIN, Acting P. J.
EGERTON, J.
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