People v. Butler CA2/7

Filed 8/22/23 P. v. Butler CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B320049

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA302062)
v.

KENNETH WAYNE BUTLER,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Eleanor J. Hunter, Judge. Affirmed.
Richard D. Miggins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Tarlyle and David A. Voet, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________
 Kenneth Wayne Butler was convicted following a jury trial
in 2007 of first degree felony murder and attempted robbery with
a robbery-murder special-circumstance finding. After a federal
court granted Butler’s petition for writ of habeas corpus and set
aside the convictions based on ineffective assistance of counsel,
Butler pleaded guilty to voluntary manslaughter.
In 2019 Butler petitioned for resentencing pursuant to
Penal Code section 1172.6 (former section 1170.95).1 The
superior court denied the petition after an evidentiary hearing,
finding beyond a reasonable doubt that Butler had been a major
participant in the attempted robbery of Marvin Williams, which
led to Williams’s murder, and had acted with reckless
indifference to human life during the offense, as now required to
find an individual guilty of felony murder under section 189,
subdivision (e)(3). On appeal Butler contends the finding that he
had acted with reckless indifference to human life was not
supported by substantial evidence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Butler’s Conviction for Special-circumstance Murder
According to the evidence at Butler’s 2007 trial, Butler and
Earl Harris III worked together dealing drugs from the
Huntington Hotel in downtown Los Angeles. Linda McDowell,
Williams’s live-in girlfriend, testified that Harris and Butler
approached her sometime in January 2006 and, while standing
on either side of her, demanded she tell Williams to stop selling
drugs at the hotel. The two men told McDowell that they knew
Williams had guns and warned, “We have them too.” In the
week or two preceding this threat McDowell had seen several

1 Statutory references are to this code.

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arguments between Harris and Williams at which Butler was
also present. According to McDowell, with each argument
Williams’s emotional response escalated.
Williams continued to deal drugs out of the hotel despite
Harris and Butler’s threat. About a week later Butler and Harris
decided to rob Williams in an effort to force him from the hotel.
They recruited Charles Ray, an acquaintance, to assist them; and
the three men met on January 28, 2006 to discuss the robbery.
Ray testified Harris explained the plan while Butler stood by
quietly. Harris and Butler then each loaded a gun.2
Harris instructed Ray to purchase drugs from Williams to
confirm he was in his room on the third floor. Ray went up to
Williams’s room and stood in the hallway just outside the room as
Williams sold him the drugs. Williams remained inside the room.
After the exchange Williams leaned forward to peer down the
hallway. As he was leaving Ray heard Williams through the
closed door tell someone that Ray had never bought drugs from
him before and that it felt “weird.” Ray returned to Harris and
Butler in their room on the second floor and informed Harris that
“homeboy is spooked.”
Four hours after the planning meeting Harris announced it
was time to proceed. Harris approached Williams’s room from
one end of the hall; Butler and Ray from the other. The three
men wore sweatshirts with hoods pulled over their heads and
gloves to avoid leaving fingerprints. Ray did not see whether

2 Ray, testifying at trial under a grant of immunity,
explained he had agreed to help with the robbery because he
wanted crack cocaine and was afraid his relationship with
Harris, from whom he purchased drugs, would be over if he did
not agree to the plan.

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Harris or Butler took his firearm with him as the men left for
Williams’s room.
At Harris’s direction Ray placed tape over the peephole in
the door across the hall from Williams’s apartment because the
drug dealer who lived there was their “enemy,” and they did not
want him “coming out of the door shooting.” Harris and Butler
waited at Williams’s door, which had no peephole.
Immediately before Ray knocked on Williams’s door
according to the plan, Harris told Ray (for the first time) they
were not going to rob Williams, but just talk to him. Ray then
knocked on the door with Butler and Harris standing on either
side of him. Williams opened the door slightly; Ray stepped back;
Harris pushed the door open all the way. Ray heard three
gunshots—one louder than the other two.
Ray testified Williams shot first, firing as soon as the door
opened. As Harris fell to the ground, he shot twice at Williams.
Ray helped Harris up, and the two men ran down the hall where
they found Butler. The three men continued downstairs and
returned to Harris and Butler’s room. Once there, Harris and
Butler took out their guns and placed them on a white towel.
They then all fled from the hotel.
According to McDowell, Williams kept a loaded revolver
and an automatic handgun in his hotel room for protection.
When someone knocked on Williams’s door, McDowell would
usually answer while Williams stood to the side with a loaded
gun. However, when Ray knocked on Williams’s door before the
shooting, Williams instructed McDowell to stay in bed, grabbed
his automatic handgun and opened the door himself.
McDowell testified that she heard three gunshots and saw
Williams fall backward. She did not know who fired first.

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Williams died in the hours after the shooting from two gunshot
wounds.
Butler was convicted of first degree felony murder,
attempted robbery and conspiracy to commit robbery. The jury
also found true the robbery-murder special-circumstance
allegation. The court sentenced Butler to life without parole for
the special-circumstance murder and stayed the sentences for the
other offenses. We affirmed Butler’s convictions on appeal.
(People v. Butler (Aug. 19, 2008, B199608) [nonpub. opn.].)
2. Habeas Relief and Butler’s Plea to Voluntary
Manslaughter
In 2014 the United States District Court granted Butler’s
petition for a writ of habeas corpus, overturning Butler’s
convictions because his trial counsel had failed to adequately
investigate Butler’s alibi defense. (Butler v. McEwen (C.D.Cal.,
Feb. 20, 2014, No. CV-11-03543-DDP (RNB) [2014 U.S.Dist. Lexis
75687].) In lieu of being retried, Butler pleaded no contest in
2015 to voluntary manslaughter and admitted he had personally
used a firearm and the offense was committed for the benefit of a
criminal street gang. He was sentenced to an aggregate state
prison term of 20 years.
3. Butler’s Petition for Resentencing
On January 7, 2019 Butler, representing himself, filed a
petition for resentencing pursuant to former section 1170.95 and
requested the court appoint counsel to represent him during the
proceedings. Following briefing by the People and Butler’s
appointed counsel, the superior court found Butler had made a
prima facie showing of entitlement to relief, issued an order to
show cause and set the matter for an evidentiary hearing.

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 Butler, who was out of custody on parole, attended the
April 1, 2022 evidentiary hearing. The court stated it had
already reviewed the trial transcripts. Neither party presented
any new evidence. In addition to the points made in his
prehearing brief, Butler’s counsel argued that Ray’s accomplice
testimony was not adequately corroborated (an issue we had
rejected on Butler’s direct appeal) and was insufficient to prove
Butler had been a major participant in the attempted robbery
and had acted with reckless indifference to human life, as now
required for Butler to be guilty under the felony-murder rule.
The court indicated it would review the trial transcripts again,
paying particular attention to the arguments made in the parties’
briefs and at oral argument, and took the matter under
submission.
On April 6, 2022 the superior court issued a 17-page order
denying Butler’s petition. The court concluded Ray’s testimony
was adequately corroborated by other evidence in the record and
found, after analyzing the evidence in light of the factors
identified in People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark), the People had
proved beyond a reasonable doubt that Butler was a major
participant in the attempted robbery of Williams and had acted
with reckless disregard for human life during the offense.
Butler filed a timely notice of appeal.
DISCUSSION
1. Accomplice Liability for Murder and Section 1172.6
Under the ameliorative changes to the law relating to
accomplice liability for murder effected by Senate Bill No. 1437
(Stats. 2018, ch. 1015), malice must be proved to convict a
principal of murder except under the narrowed felony-murder

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rule set forth in section 189, subdivision (e), and may not be
imputed based solely on an individual’s participation in a crime
(§ 188, subd. (a)(3)), thereby eliminating the natural and probable
consequences doctrine as a basis for finding a defendant guilty of
murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843;
see People v. Reyes (2023) 14 Cal.5th 981, 984). The amended
felony-murder provision requires the People to prove specific
facts relating to the defendant’s individual culpability: The
defendant was the actual killer (§ 189, subd. (e)(1)); although not
the actual killer, the defendant, with the intent to kill, assisted in
the commission of murder in the first degree (§ 189, subd. (e)(2));
or the defendant was a major participant in an underlying felony
listed in section 189, subdivision (a), and acted with reckless
indifference to human life, “‘as described in subdivision (d) of
[Penal Code] Section 190.2,’” the felony-murder special-
circumstance provision (§ 189, subd. (e)(3)). (See People v. Strong
(2022) 13 Cal.5th 698, 708.)
Section 1172.6 authorizes an individual convicted of felony
murder or murder based on the natural and probable
consequences doctrine or any other theory under which malice is
imputed based solely on that person’s participation in a crime to
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not now
be convicted of murder because of these changes to the law
relating to accomplice liability for murder. As amended by
Senate Bill No. 775 (Stats. 2021, ch. 551, § 2), effective
January 1, 2022, Senate Bill No. 1437’s ameliorative changes to
the law of murder and section 1172.6’s provisions for

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resentencing relief now expressly apply to individuals convicted
of attempted murder and voluntary manslaughter.3
If, as here, the petitioner makes the requisite prima facie
showing he or she falls within the provisions of section 1172.6
and is entitled to relief, the court must issue an order to show
cause and hold an evidentiary hearing to determine whether to
vacate the murder, attempted murder or voluntary manslaughter
conviction and resentence the petitioner on any remaining
counts. (§ 1172.6, subd. (d)(1).)
At the evidentiary hearing to determine whether the
petitioner is entitled to relief, “the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189
made effective January 1, 2019.” (§ 1172.6, subd. (d)(3).) The
court may consider evidence “previously admitted at any prior
hearing or trial that is admissible under current law,” including
witness testimony. The petitioner and the prosecutor may also
offer new or additional evidence. (Ibid.) The superior court’s
decision to deny the petition after an evidentiary hearing, if the
court correctly understood the elements of the offense and the
proper standard and burden of proof were applied, is reviewed for
substantial evidence. (People v. Reyes, supra, 14 Cal.5th at
p. 988; People v. Vargas (2022) 84 Cal.App.5th 943, 951; People v.

3 An individual convicted of voluntary manslaughter was not
eligible for resentencing under former section 1170.95 when
Butler filed his petition in January 2019. However, by the time
the superior court issued its order to show cause in April 2022,
Senate Bill No. 775’s expansion of the scope of potential relief
under section 1172.6 had become effective.

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Ramirez (2021) 71 Cal.App.5th 970, 985; People v. Hernandez
(2021) 60 Cal.App.5th 94, 113.)
2. The Banks/Clark Factors
As discussed, section 189, subdivision (e), limits the scope
of the felony-murder rule to an individual participating in an
enumerated underlying felony who was the actual killer, who
with the intent to kill assisted the actual killer in the commission
of first degree murder, or who “was a major participant in the
underlying felony and acted with reckless indifference to human
life, as described in subdivision (d) of Section 190.2.” “Penal Code
section 190.2, subdivision (d), enacted by initiative in 1990,
provides that ‘every person, not the actual killer, who, with
reckless indifference to human life and as a major participant’
aids or abets an enumerated felony, including attempted robbery,
that results in death may be convicted of special circumstance
murder and sentenced to death or to life imprisonment without
the possibility of parole. The statute, by its text, imposes an
actus reus requirement, major participation in the enumerated
felony, and a mens rea requirement, reckless indifference to
human life.” (In re Scoggins (2020) 9 Cal.5th 667, 674 (Scoggins);
accord, Clark, supra, 63 Cal.4th at p. 615; Banks, supra,
61 Cal.4th at p. 798.)
The Supreme Court in Banks, supra, 61 Cal.4th 788 and
Clark, supra, 63 Cal.4th 522, and more recently in Scoggins,
supra, 9 Cal.5th 667, identified the factors courts must consider
in assessing whether a defendant was a major participant in an
underlying serious felony and acted with reckless indifference to
human life for purposes of section 190.2, subdivision (d), and thus
for section 189, subdivision (e)(3). (See generally People v.
Strong, supra, 13 Cal.5th at pp. 705, 707.) To determine whether

9
a defendant was a major participant in one of the specified
felonies, the Banks Court listed the following factors: “What role
did the defendant have in planning the criminal enterprise that
led to one or more deaths? What role did the defendant have in
supplying or using lethal weapons? What awareness did the
defendant have of the particular dangers posed by the nature of
the crime, weapons used, or past experience or conduct of the
other participants? Was the defendant present at the scene of
the killing, in a position to facilitate or prevent the actual
murder, and did his or her own actions or inaction play a
particular role in the death? What did the defendant do after
lethal force was used?” (Banks, at p. 803, fn. omitted.)
As to whether a defendant acted with reckless indifference
to human life, the Supreme Court enumerated the following
factors: “Did the defendant use or know that a gun would be
used during the felony? How many weapons were ultimately
used? Was the defendant physically present at the crime? Did
he or she have the opportunity to restrain the crime or aid the
victim? What was the duration of the interaction between the
perpetrators of the felony and the victims? What was defendant’s
knowledge of his or her confederate’s propensity for violence or
likelihood of using lethal force? What efforts did the defendant
make to minimize the risks of violence during the felony?”
(Scoggins, supra, 9 Cal.5th at p. 677; accord, Banks, supra,
61 Cal.4th at p. 808.) “‘“[N]o one of these considerations is
necessary, nor is any one of them necessarily sufficient.”’”
(Scoggins, at p. 677.)
As the Scoggins Court explained, “Reckless indifference to
human life is ‘implicit in knowingly engaging in criminal
activities known to carry a grave risk of death.’” (Scoggins, supra,

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9 Cal.5th at p. 676; accord, Banks, supra, 61 Cal.4th at p. 808
[“[a]wareness of no more than the foreseeable risk of death
inherent in any [violent felony] is insufficient”; reckless
indifference to human life requires “knowingly creating a ‘grave
risk of death’”].) “Reckless indifference ‘encompasses a
willingness to kill (or to assist another in killing) to achieve a
distinct aim, even if the defendant does not specifically desire that
death as the outcome of his actions.’” (Scoggins, at pp. 676-677,
quoting Clark, supra, 63 Cal.4th at p. 617.)
3. Substantial Evidence Supports the Superior Court’s
Denial of Butler’s Petition
Ample evidence supported the superior court’s finding that
Butler was a major participant in the attempted robbery of
Williams—a finding not directly challenged by Butler on appeal.
Butler and Harris were partners engaged in selling drugs from
the Huntington Hotel (although Harris was described as the
“brains” of the business); and the men wanted Williams, a drug-
dealing competitor, to leave the hotel. To that end, Butler, along
with Harris, threatened McDowell in the weeks before the
shooting. When the threat proved ineffectual, the men decided to
rob Williams, not for financial gain, but to drive him out of the
hotel. Butler attended the meeting at which Harris explained the
plan to their accomplice Ray; and in preparation Butler and
Harris both loaded their guns, which they brought with them to
Williams’s door as Ray knocked again to initiate the robbery.
To be sure, as Butler argues, Ray testified he did not see
Butler carrying a gun as the men left Harris and Butler’s room to
commit the robbery and did not notice whether Butler was
holding a gun as Williams opened the door. But Ray also
testified he saw Butler load a gun in preparation for the robbery

11
and place his gun on a towel upon returning to the hotel room
after the shooting. It was certainly reasonable for the court as
factfinder to infer that Butler brought the gun with him to the
robbery scene as an active participant in the crime.
The evidence also fully supported the superior court’s
finding that Butler acted with reckless indifference to human life.
Butler contends the plan was just to rob Williams to get Williams
to vacate the hotel and insists he did not know there was any
likelihood Harris would kill Williams. Yet, far from making an
effort to minimize the risk of violence, Butler knew that he and
Harris were each carrying loaded firearms; that Williams was
also armed; and that he and Harris had threatened Williams
(through McDowell), making explicit reference to all parties being
armed. In addition, Butler was fully aware after Ray returned to
the room from his initial purchase of drugs on January 28, 2006
that Williams was “spooked,” necessarily increasing the
likelihood of violence when Williams was confronted during the
planned robbery. Moreover, as the superior court observed, the
men’s conduct showed they knew they had to be extremely
careful during this robbery, as evidenced by their wearing of
hooded sweatshirts and gloves and Ray’s placement of tape over
the peephole of the drug dealer living across from Williams to
prevent him from “coming out of the door shooting.”
Butler emphasizes that the confrontation between Williams
and Harris was brief and the evidence indicated he was standing
at the end of the hallway when Harris shot Williams, could not
have seen the exchange of gunfire and had “no knowledge of
Williams’s condition.” (See People v. Ramirez, supra,
71 Cal.App.5th at p. 989 [although present at the scene,
defendant was less culpable because he was not close enough to

12
exercise a restraining effect on his colleagues].) While perhaps
true, Butler certainly heard the gunshots, knowing that Harris
was carrying a firearm, yet did not inquire about Williams, let
alone call the 911 emergency number, instead fleeing from the
scene with Harris and Ray. Taken together, the evidence
justified the conclusion that Butler engaged in the attempted
robbery knowing it “‘carr[ied] a grave risk of death’” (Scoggins,
supra, 9 Cal.5th at p. 677; Banks, supra, 61 Cal.4th at p. 811) and
was willing to assist in killing Williams to achieve his and
Harris’s goal of forcing Williams to leave the hotel, even if
Williams’s death was not specifically desired as the outcome of
the robbery. (See Clark, supra, 63 Cal.4th at p. 617.)
In an alternative argument, albeit one devoid of reasoning,
Butler contends, because his murder conviction was vacated
following the granting of his petition for writ of habeas corpus
and he thereafter pleaded guilty to voluntary manslaughter, the
superior court could not now find him guilty of murder. Butler
appears to misunderstand the significance of the superior court’s
findings. Butler’s conviction for voluntary manslaughter remains
in place. The court’s findings that the evidence established
beyond a reasonable doubt that he was guilty of felony murder
under amended section 189, subdivision (e)(3)—a finding
expressly authorized by section 1172.6, subdivision (d)(1) and
(3)—means only that he is not entitled resentencing relief,
nothing more.

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 DISPOSITION
The postjudgment order denying Butler’s petition for
resentencing is affirmed.

PERLUSS, P. J.
We concur:

SEGAL, J.

FEUER, J.

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