People v. Butler CA2/8 ( 2024 )

Filed 6/17/24 P. v. Butler CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B327403
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA139642-01)
v.
ALBERT BUTLER,
Defendant and Appellant.
APPEAL from a post-judgment order of the Superior Court
of Los Angeles County, Patrick Connolly, Judge. Affirmed.
Alex Green, under appointment by the Court of Appeal, for
Plaintiff and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Nima Razfar, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
Following his involvement in a 2016 armed robbery and
shooting, appellant Albert Butler pled no contest to premeditated
attempted murder and was sentenced to 25 years to life. In
January 2022, Butler filed a petition for resentencing pursuant to
Penal Code1 section 1172.6, and the trial court set the matter for
an evidentiary hearing. Following the evidentiary hearing the
court denied Butler’s petition based on its finding that Butler was
guilty of attempted murder under current law as a direct aider
and abettor who acted with intent to kill.
Butler contends the evidentiary record is insufficient to
support the court’s finding. We conclude the record supports the
trial court’s conclusion, based on circumstantial evidence and
reasonable inferences drawn therefrom, that Butler’s actions,
considered collectively, demonstrated that he aided and abetted
an attempted murder with intent to kill. Accordingly, we affirm.
BACKGROUND
I. Factual Background
Ryan Lindsey owned private ATMs.2 On the afternoon of
March 7, 2016, Lindsey was replenishing cash in an ATM located
in a marijuana dispensary. Lindsey carried an over-the-shoulder
bag containing $24,000 in $20 bills. Anthony Twyman, Gerron
1 Further statutory references are to the Penal Code.
2 Our factual recitation is drawn from testimony by Lindsey
and Los Angeles Police Department Detective Kristin Humphris,
the investigating officer in this case, and other evidence admitted
at the preliminary hearing, including video surveillance footage
from inside and from a store across the street from the
dispensary where the robbery and shooting took place.
2
McGary and Butler were together in the dispensary, and saw
Lindsey load $4,000 into the ATM. Following a friendly
interaction with Butler and Twyman, McGary left the dispensary
and got into the front passenger seat of Butler’s silver Audi,
parked nearby. Butler and Twyman remained behind and
monitored Lindsey’s actions.
Shortly thereafter, Butler and Twyman also left the
dispensary. Butler got into the driver’s seat of his car, Twyman
sat in the rear. Butler drove and parked his car across the street
from and facing the dispensary. The three men waited for
Lindsey to emerge. As Lindsey walked toward his truck, Butler
made an abrupt U-turn across all traffic lanes and drove towards
Lindsey. With tires screeching, Butler pulled his car up fast
directly in front of Lindsey, positioning the car to block Lindsey
from entering the driver’s side of his truck.
As the Audi stopped in front of Lindsey, McGary rushed out
of the front passenger seat, “and immediately he went for his
gun, which was in his right side . . . in his pants.” McGary moved
quickly toward Lindsey, pointing a small pistol at him, and
demanded the bag of money. Lindsey froze and held on to the
bag’s strap. McGary said nothing more and fired at Lindsey
striking him in the thumb and chest and causing him to fall to
the ground bleeding.
While Lindsey was down, McGary grabbed the bag, used
the gun to strike Lindsey in the head and headed quickly back
into Butler’s car, which lurched forward. As he did so, McGary
accidentally dropped the pistol. After realizing he had dropped
the gun, McGary got out of the car, leaving the passenger door
open, and returned to retrieve the pistol. By this time, Lindsey
3
had gotten up and looked into the car, saw the driver (Butler),3
and heard him tell McGary, “Let’s go. Let’s go. Get in the car.”
McGary got back into the car and Butler drove off. Lindsey
called 911 and gave the dispatcher the Audi’s license plate
number before being taken to the hospital to be treated for
gunshot wounds to his thumb and chest and a broken collarbone.
McGary’s phone was recovered from the scene. Several
hours after the crimes, a photograph posted on Butler’s
Instagram account depicted Butler and McGary holding a large
amount of cash in $20 denominations. That photo was “liked” by
Twyman’s Instagram account with the comment, “Gang Shit” and
emojis of hand signals and a firearm. The phone also depicted a
photo of McGary taken the day before the robbery holding a
semiautomatic handgun. A couple of weeks after the crimes,
Butler was apprehended after he fled a traffic stop. During a
jailhouse conversation with an informant, Butler acknowledged
having lied to detectives when he denied involvement in the
Lindsey robbery.4 Butler identified himself as a member of the
3 Lindsey initially misidentified Butler as the shooter.
4 The detective testified this conversation was part of a
Perkins operation involving Butler. (See Illinois v. Perkins (1990)
496 U.S. 292, 294 (Perkins) [an undercover operative, placed in a
cell with the suspect and whom the suspect does not know is a
police agent, need not give Miranda warnings before questioning
or interacting with the suspect].)
4
BSV (Blood Stone Villains) gang5, admitted having been at the
crime scene, admitted being the driver, admitted having lied to
the police, and admitted the gun was gone. In a Perkins
operation involving Twyman, Twyman said he was not the
shooter, but was inside the dispensary when Lindsey serviced the
ATM, and then got into the Audi with Butler and McGary to
carry out the robbery.
II. Procedural Background
An information filed in 2017 charged Butler and co-
defendants, including Twyman and McGary, with one count of
attempted premeditated murder (§§ 664, 187, subd. (a)), one
count of ATM robbery (§ 211), five counts of second-degree
robbery (§ 211), and three counts of kidnapping (§ 209,
subd. (b)(1).) The information also alleged gang and firearm
enhancements (§§ 186.22, subd. (b), 12022.53, subds. (b)-(e).)
Butler pled no contest to premeditated attempted murder,
admitted the gang and firearm enhancements and was sentenced
to 25 years to life in prison.
III. The Section 1172.6 Petition for Resentencing
In January 2022, Butler filed a petition seeking
resentencing under section 1172.6. He checked boxes alleging
that an information filed against him allowed the prosecution to
convict him of attempted murder under a natural and probable
5 Butler, Twyman and McGary were all members of the BSV
street gang. Although two gang experts opined that the robbery
and attempted murder were committed for the benefit of the
gang, the trial court stated it did not consider “the gang evidence
. . . or any other peripheral evidence.” in making its
determination as to Butler’s petition.
5
consequences theory, and that he could not presently be convicted
of attempted murder due to changes to sections 188 or 189. The
trial court found Butler established a prima facie case for relief,
appointed counsel for him, and set the matter for an evidentiary
hearing.
The evidentiary hearing was conducted in December 2022.
The People did not call live witnesses and instead submitted the
transcript of the preliminary hearing as their evidence. The
prosecutor stated that “Butler was the driver. . . . [¶] Mr. McGary
was the shooter. [¶] Mr. Twyman was the passenger in the
vehicle. . . . I don’t think the defense will contend that Mr. Butler
did not intend to participate in the robbery based upon his
conduct in this case. . . . [¶]. . . [¶] . . . The court’s sole
determination [would] be whether or not Mr. Butler possessed
the intent to kill.” The prosecutor argued that based “upon the
totality of the evidence . . . the video, the Perkins [operation], Mr.
Butler’s statement . . . and the social media—it becomes clear
. . . that Mr. Butler did intend for Mr. McGary to shoot the victim
and attempt to kill him to effect the robbery.”
Defense counsel observed that Butler was “the getaway
driver,” and asked the trial court to consider the factors in People
v. Banks (2015) 61 Cal.4th 788 (Banks) to determine whether
Butler shared the intent of the actual shooter. Butler’s counsel
observed that no direct evidence had been presented at the
preliminary hearing that Butler knew McGary was armed, nor
had any evidence been presented that the robbers discussed
shooting Lindsey to get the money. Counsel asserted it was pure
speculation to assume that, because the men were together in the
car, they must have discussed shooting Lindsey, and speculation
was insufficient to satisfy the prosecution’s burden to prove
6
beyond a reasonable doubt that Butler knew McGary would pull
out a firearm and shoot the victim. Counsel argued Butler’s
purpose in using his car to block Lindsey had been to effect the
target offense of robbery, not to shoot anyone.
Implicitly acknowledging the case was close, the trial court
observed that had they been “talking about major participants,
certainly, if there [had been] a murder . . . this would be a very
different situation” and, under the Banks factors it “would [not]
have much of a decision to make.” The court thoroughly
summarized the evidence from the preliminary hearing before
finding, beyond a reasonable doubt, that Butler intended to kill
the victim. Specifically, the court stated,
“First of all, Mr. Lindsey who is the victim in this
case had gone into the dispensary . . . to refill . . . a private
ATM. . . .
“He . . . opened [his bag], took the money out and
replaced it and closed the case. . . . Mr. Twyman, Mr.
Butler, and Mr. McGary—are inside of the location at the
time that [Lindsey] starts to refill that. On the video
observed [sic] they are viewing this and start to speak.
They walk out before Mr. Lindsey leaves. . . .
“Then . . . Mr. Butler, who was the driver of the
vehicle, reaches into the vehicle to grab something. Mr.
McGary gets in. Mr. Twyman . . . is in the backseat [and]
they move from the location that they are parked in to a
location across the street . . . to position themselves when
Mr. Lindsey is walking to his car . . . .
“[¶] . . . [¶]
“It is at that point in time that Mr. Butler, who was
the driver of the vehicle, pulls up . . . at an angle . . . and
7
cuts in front of Mr. Lindsey, stops him, and at that moment
immediately the shooter in this case jumps out of the
vehicle and starts to approach. What is interesting to me is
. . . what is not said. . . . I know that we do not know what
was said during the discussion. I think it is very clear
there was a discussion that at least one, if not all three of
them, saw the money that was in this case that was closed
in some fashion . . . . It is not like they decided on the spur
of the moment to rob somebody who was on the street.
“They also are inside of that dispensary . . . . They do
nothing to try and cover up their identities. They don’t do
anything. They go outside and simply wait for [Lindsey]. I
don’t think there could be any doubt, reasonable or not,
that there is a conspiracy at that point in time, at the very
least, to rob him.
“When the shooter gets out of the vehicle, the first
thing he says is, ‘Give me the money. Give me the bag,’
which . . . is circumstantial evidence that there was a
discussion specifically about what was going to occur
outside, while they were actually inside of the location.
And he immediately shoots the victim and then pistol-
whips him. In the victim’s words, he ‘grabs onto the strap
and won’t let go of the bag,’ having been shot through the
hand and into the chest.
“The testimony at that point is that the shooter takes
the bag but drops the gun that he has just used. Mr.
Butler, at this point in time, is still waiting at that location.
[H]e is sitting right there. He is within feet, three feet,
twenty feet. I don’t know, but he is right there, close
8
enough to where the victim stated that he was eye to eye
with him, [and] looked directly into his eyes.
“The weapon is dropped while the shooter is
attempting to go back and get into the vehicle. Mr. Butler
doesn’t take off . . . . He remains at that location. It is not
clear to me how much time this takes, but it seems like it is
just seconds. But . . . while [Butler] waits, the shooter goes
back and actually retrieves that weapon. Mr. Lindsey said
they are looking right at each other, the shooter and [the]
victim are looking right at each other at that point in time.
. . . [A]nd then what occurs at that point in time, [Lindsey]
said he has a view of the driver telling the shooter, ‘Like,
Let’s go. Let’s go. Get in the car.’
“[¶] . . . [¶]
“And it is at that point in time they drive off. . . .
“[V]ery soon thereafter, right after the robbery
occurred . . . it was that day that he posts a picture of
himself with the cash. Mr. [McGary] . . . one of the two is
also in that photograph.
“[¶] . . . [¶]
“[A}nd they are smiling and showing off that money.
. . . [T]hat was within a couple of hours or several hours,
but it was the same date as that incident. Mr. Twyman is
the one who . . . likes it . . . a smiling face emoji, gun emoji
....
“I do think that the inference is that not only did Mr.
Butler—if this were a major participant to the crime, it
would be very clear he was a major participant. It doesn’t
apply here. The question is whether or not he shares the
intent.
9
“We have three individuals that are going to commit
this robbery: Mr. Twyman, Mr. McGary, and Mr. Butler.
“First of all . . . there is no doubt in this court’s mind
that Mr. Butler was aware that Mr. McGary had that
firearm, and that is clear from the evidence that has been
produced through the preliminary hearing
testimony. . . . Mr. Twyman stayed in the rear of that
vehicle. I don’t believe he did anything at all. I’m not
aware of him saying anything, doing anything. He is just
there. Mr. Butler is taking the actions I have spoken
about. But no one else gets out of that vehicle to try and
assist in taking that bag. They are all there, clear as day.
“Not only that, the testimony is that as soon as Mr.
McGary is getting out of that vehicle, he is pointing that
gun. He is speaking as he walks to Mr. Lindsey. I don’t
know how far a distance that is, but it is very close from
where Mr. Lindsey talks about being close to the vehicle
and he fires immediately. Mr. Butler doesn’t take off. . . .
Mr. Butler stays at that location while Mr. McGary pistol-
whips Mr. Lindsey. . . . He remains at that location as Mr.
McGary puts the money into the vehicle and starts getting
in that vehicle and then . . . waits for the shooter to go back
and get that gun.
“So in looking at the Banks factors . . . the question
here is whether or not this is a shared intent. . . . And here
it is obvious that Mr. Butler shares the intent of the
robbery. I don’t think there is any question at all about
that. And I think, though, that here it is clear that Mr.
Butler . . . shares the intent to kill this victim. They want
that money. They have seen that money inside. It is very
10
clear that it does not matter how this goes down. I think
that Mr. Butler, by his actions during the incident, the only
reasonable inference is that beyond a reasonable doubt that
he shared the intent to kill in this matter.
“Banks . . . applies five nonexclusive factors for
evaluating the extent of a defendant’s participation, being
present at the scene. Whether or not they do anything to
either stop or whether they do anything to help facilitate
the incident, in this case, an attempted murder.
“It is clear by Mr. Butler’s actions that he has done
nothing to prevent it and is doing everything to facilitate it,
not because of any actions to save Mr. Lindsey, but by his
actions to assist Mr. McGary as the actual shooter . . . .
Here, by driving directly up to Mr. Lindsey . . . the only
inference [is] that he knows Mr. McGary has that weapon
and is going to take care of business. No one gets out to
assist, even when the incident is starting to go awry in that
he pistol-whips [Lindsey]. He has already shot [Lindsay]
once in the chest. I think that it is clear that if there was
any sort of intent other than to actually kill the victim in
this case, Mr. Butler would have taken different actions.
“I think Mr. Twyman is in a much different
circumstance, him being in the backseat of the car. There
is not anything for me to speak about as far as any
statements or such. . . .
“But this court believes beyond a reasonable doubt,
not beyond any doubt, but beyond a reasonable doubt, that
Mr. Butler shared that intent and as such . . . the conviction
will stand.” (Italics added.)
11
Later, the court added,
“This court had failed to mention that Mr. Butler was
part of a Perkin’s [sic] operation. . . . [T]his was part of the
circumstantial evidence that helped the court make a
decision that it did find beyond a reasonable doubt that the
defendant did harbor intent to kill. But during that
Perkins operation, not only did the defendant state that he
had lied to law enforcement officers previously, but he also
did admit to committing the robbery, didn’t make any
statements about the shooting, didn’t deny that, didn’t
discount that at all, and it was also shown circumstantially
he did have the intent to kill. That was part of the plan.”
(Italics added.)
DISCUSSION
Butler contends there is insufficient evidence to support the
court’s denial of his resentencing petition based on its conclusion
that he was an aider and abettor and acted with intent to kill.
We reject this assertion. Substantial evidence supports the trial
court’s finding that Butler was convicted under a theory that
remains valid under current law, i.e., direct aiding and abetting.
(See People v. Estrada (2022) 77 Cal.App.5th 941, 945 [petitioner
convicted of murder as an aider and abettor was ineligible for
relief as a matter of law as Senate Bill No. 1437 did “not
eliminate direct aiding and abetting liability for murder because
a direct aider and abettor to murder must possess malice
aforethought.”].)
1. Controlling Legal Principles and the Standard of Review
Effective January 1, 2019, Senate Bill No. 1437 (2021–2022
Reg. Sess.) (Senate Bill 1437) amended “the felony murder rule
12
and the natural probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a
person who is not the actual killer, did not act with the intent to
kill, or was not a major participant in the underlying felony who
acted with reckless indifference to human life.” (Stats. 2018,
ch. 1015, § 1, subd. (f); People v. Gentile (2020) 10 Cal.5th 830,
842.) It accomplished this by amending sections 188 and 189.
(Stats. 2018, ch. 1015, §§ 2, 3)
Senate Bill 1437 also created former section 1170.95 (now
codified as section 1172.6), which established a procedure for
defendants convicted of murder under prior law to seek
resentencing in the trial court if they believe they could not be
convicted of that crime after the amendments to sections 188 and
189. (Stats. 2018, ch. 1015, § 4.) Senate Bill No. 775 (2021–2022
Reg. Sess.) extended that protection to permit individuals
convicted of attempted murder or manslaughter to petition for
sentencing relief on the basis that they “could not presently be
convicted of . . . attempted murder because of changes to
Section[s] 188 or 189 made effective” by Senate Bill 1437.
(§ 1172.6, subd. (a)(3).)
If a petitioner makes a prima facie showing of entitlement
to relief, the trial court must issue an order to show cause why
relief should not be granted. (§ 1172.6, subd. (c).) Absent a
prosecutorial concession that relief is in order, the parties then
participate in an evidentiary hearing in which the prosecution
has the burden to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under sections
188 or 189 as amended by Senate Bill 1437. (§ 1172.6,
subd. (d)(3).) At the evidentiary hearing, the parties may offer
new or additional evidence, and the trial court may consider
13
evidence admitted at the trial of conviction, so long as it is
admissible under current law. (Ibid.) The court sits as an
independent factfinder to determine beyond a reasonable doubt
whether the defendant is guilty under a valid theory. (People v.
Garrison (2021) 73 Cal.App.5th 735, 745.)
We review the denial of a section 1172.6 petition for
substantial evidence. We examine the record in the light most
favorable to the judgment and presume the existence of every fact
the trier of fact could reasonably have deduced from the evidence.
(People v. Reyes (2023) 14 Cal.5th 981, 988; People v. Clements
(2022) 75 Cal.App.5th 276, 298.) Substantial evidence includes
circumstantial evidence and reasonable inferences drawn from
that evidence. (In re Michael D. (2002) 100 Cal.App.4th
115, 126.)
2. Continued Validity of Theory of Attempted Murder as Direct
Aider and Abettor Acting with Intent to Kill
“Direct aiding and abetting remains a valid theory of
attempted murder after the enactment of Senate Bill No. 775.”
(People v. Coley (2022) 77 Cal.App.5th 539, 548.) “To be guilty of
a crime as an aider and abettor, a person must ‘aid[ ] the [direct]
perpetrator by acts or encourage[ ] him [or her] by words or
gestures.’ [Citations.] In addition, . . . the person must give such
aid or encouragement ‘with knowledge of the criminal purpose of
the [direct] perpetrator and with an intent or purpose either of
committing, or of encouraging or facilitating commission of,’ the
crime in question. [Citations.] When the crime at issue requires
a specific intent, in order to be guilty as an aider and abettor the
person ‘must share the specific intent of the [direct] perpetrator,’
that is to say, the person must ‘know[ ] the full extent of the
[direct] perpetrator’s criminal purpose and [must] give[ ] aid or
14
encouragement with the intent or purpose of facilitating the
[direct] perpetrator’s commission of the crime.’ ” (People v. Lee
(2003) 31 Cal.4th 613, 623–624, italics omitted, superseded by
statute on other grounds by People v. Rodriguez (2022)
75 Cal.App.5th 816, 824; see § 31 [A defendant may be convicted
as the direct perpetrator or as an aider and abettor].)
“Direct evidence of intent to kill is rare, and ordinarily the
intent to kill must be inferred from the statements and actions of
the defendant and circumstances surrounding the crime.” (People
v. Canizales (2019) 7 Cal.5th 591, 602.) “ ‘Among the factors
which may be considered in making the determination of aiding
and abetting are: presence at the scene of the crime,
companionship, and conduct before and after the offense.’ ”
(People v. Nguyen (2015) 61 Cal.4th 1015, 1054.) The test is
“whether the accused in any way, directly or indirectly, aided the
perpetrator by acts or encouraged him by words or gestures.”
(People v. Villa (1957) 156 Cal.App.2d 128, 134.) “Evidence of a
defendant’s state of mind is almost inevitably circumstantial, but
circumstantial evidence is as sufficient as direct evidence to
support a conviction.” (People v. Bloom (1989) 48 Cal.3d 1194,
1208; People v. Smith (1998) 64 Cal.App.4th 1458, 1469 [intent is
generally proved by the act and surrounding circumstances].)
3. The Record Supports the Trial Court’s Finding that Butler
was a Direct Aider and Abettor Who Acted with Intent to
Kill.
Butler maintains that the trial court’s conclusion that he
was a direct aider and abettor who encouraged and facilitated
McGary in planning and executing an armed robbery and shared
the shooter’s intent to kill is not supported by substantial
evidence, but rather amounts to a speculative house of cards.
15
Addressing each action on its own, Butler asserts that observing
Lindsey reload the ATM from his bag of money, waiting with his
cohorts in his car for Lindsey to emerge, driving his car to block
Lindsey from entering his vehicle, while simultaneously placing
McGary in position to rob and shoot Lindsey, then waiting while
McGary retrieved the gun, driving off (instead of stopping to help
the shooting victim), and later celebrating the robbery with
McGary by displaying large amounts of cash in an Instagram
post does not amount to substantial evidence or evidence from
which a reasonable inference may be drawn that he shared
McGary’s intent to kill Lindsey during the robbery. To accept
Butler’s assertions would be akin to evaluating the integrity of a
rope by separating its individual strands to test each for its
tensile strength. This we will not do. Reviewing the evidence
collectively in accordance with a standard which requires
deference for the factfinder’s reasonable inferences and
conclusions–even if we might have drawn a different reasonable
inference–the record includes sufficient evidence to support the
conclusion that Butler encouraged and facilitated McGary in the
shooting and shared an intent to kill the victim as they executed
the armed robbery.
Considered in its totality, the evidence shows the crimes
were carefully planned and executed as Butler and his
accomplices, having seen Lindsey with a bag containing a
substantial amount of money, waited to rob him when he
emerged from the dispensary. Butler’s role was to use his vehicle
to block Lindsey, thereby placing McGary in position to confront,
rob and shoot Lindsey. The trial court’s conclusion that Butler
shared McGary’s intent is buttressed by evidence that Butler did
not express surprise or shock at the shooting, and neither drove
16
away without McGary nor attempted to assist Lindsey. Instead,
Butler waited with the engine running and the passenger door
open while the shooter went back to retrieve the weapon, enabled
him safely to escape the crime scene, and later celebrated the
crimes with the shooter in a social media post. On this evidence
the trial court could reasonably infer that Butler encouraged and
facilitated McGary to commit the shooting and shared his intent
to kill the victim as they carried out the robbery.
Butler contends there was no evidence that he knew
McGary had a firearm and planned to shoot Lindsey during the
robbery. The trial court may draw reasonable inferences based
on the circumstances surrounding the crimes. (People v. Myles
(2023) 89 Cal.App.5th 711, 739 [Circumstantial evidence is as
sufficient as direct evidence to support a conviction].) As
discussed above, the evidentiary record, considered as a whole, is
sufficient to support the court’s conclusion that Butler shared the
shooter’s intent to kill. By blocking Lindsey and placing McGary
in a prime position to exit the car and rapidly fire at Lindsey,
waiting for McGary to retrieve the dropped firearm, and then
celebrating the robbery in a photo taken with the shooter a few
hours later displaying the stolen cash, it was reasonable for the
court to infer Butler was aware the robbery would succeed by
shooting Lindsey and fleeing with the bag of cash. Butler’s
conduct before, during, and after the shooting, gives rise to a
reasonable inference that he was aware McGary had a gun that
he planned to use to rob Lindsey. We agree with Butler that the
court might have drawn “[a]nother reasonable inference” from
the one it did. But an appellant cannot make an argument for
insufficiency of the evidence by positing the inference he wished
the factfinder had drawn. (See People v. Earp (1999) 20 Cal.4th
17826, 887–888 [that circumstances might reasonably support a
contrary finding does not render the evidence insubstantial];
People v. Stanley (1995) 10 Cal.4th 764, 792–793 [reviewing court
may not reweigh evidence or determine if other inferences could
have been drawn from the evidence]; People v. Perez (1992)
2 Cal.4th 1117, 1124 [the possibility the evidence may be
reconciled with a contrary conclusion does not warrant reversal of
judgment].) Butler’s assertion that the record lacks direct
evidence of his intent cannot defeat the reasonable inference
drawn by the trial court that he shared the intent to kill based on
circumstantial evidence. (People v. Mendoza (2000) 24 Cal.4th
130, 162 [“Direct evidence is neither inherently stronger nor
inherently weaker than circumstantial evidence”].)
Nor does Butler’s reliance on Banks advance his cause.
Unlike the felony murder committed by a defendant in Banks,
Butler was convicted of attempted murder. The facts here differ
markedly from those in Banks in which the defendant was the
getaway driver who waited blocks away while his accomplices
fatally shot a security guard in the course of a dispensary
robbery. (Banks, supra, 61 Cal.4th at pp. 805–806.) In Banks,
the court correctly observed that there was “no evidence [the
driver who was a block away] saw or heard the shooting, that he
could have seen or heard the shooting, or that he had any
immediate role in instigating it or could have prevented it.”
(Id. at p. 805.) In contrast, Butler’s conduct before, during and
after the sequence of criminal events was significant. He actively
participated in planning and facilitating the robbery,
purposefully driving his car to stop Lindsey’s escape while
positioning McGary directly in the victim’s path. Butler also
assisted the shooter immediately after the shooting by waiting
18
with his car engine running while McGary went back for the
weapon before returning to the waiting vehicle, then rapidly
driving away. In contrast to the minor role of the defendant in
Banks in facilitating the crimes, Butler was closely involved in
the commission of a violent robbery and attempted murder. (In
re Scoggins (2020) 9 Cal.5th 667, 682 [“We have said that any
person who plans or participates in an armed robbery can be said
to anticipate that lethal violence might be used.”].)
In conclusion, substantial evidence supports the trial
court’s finding that Butler directly aided and abetted the
attempted murder with intent to kill and, as such, was ineligible
for resentencing.6
6 Butler has requested that we take judicial notice of the
trial court’s June 16, 2023, order by which he argues the court
effectively granted Twyman’s section 1172.6 petition by granting
the prosecution’s motion to amend the information to charge
robbery–to which Twyman pled no contest–and dismissed
Twyman’s conviction for attempted murder. Butler contends that
the trial court’s decision with regard to Twyman’s resentencing
petition undercuts its denial of his petition. Not so. The court’s
decision with respect to Twyman’s petition is not relevant to our
review for substantial evidence here. While Twyman was
involved in planning the robbery, unlike Butler, he did nothing to
facilitate the shooter’s placement and escape afterwards. (See
People v. Palmer (2001) 24 Cal.4th 856, 858 [Where substantial
evidence supports a verdict as to one defendant, that verdict may
stand notwithstanding an apparently inconsistent verdict as to
another defendant].) Accordingly, we deny the request for
judicial notice.
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DISPOSITION
The post-judgment order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
WILEY, J.
20