People v. Butler

Keith L. Butler appeals his judgment of conviction of assault with a deadly weapon (Pen. Code, § 245, subd. (a)) and the finding he used a firearm within the meaning of Penal Code section 12022.5. The only issues raised deal with a sentencing procedure which results in the imposition of the four-year upper term enhanced by two years authorized under section 12022.5.

Butler purchased two or three tapes from Sam’s Sounds and Styles music store in San Diego on September 9, 1978. That evening David Gaston was one of the clerks on duty. The purchase price of the tapes was $12.19. Butler asked Gaston to “let me ride with the 19 cents.” Gaston said he could not and Butler angrily left, asserting that he would go get the 19 cents. Butler returned, slammed a quarter in Gas-ton’s chest and began to swing at him. After being hit in the face, Gaston pulled a pistol from under the counter and pointed it at Butler, whereupon Butler left.

Gaston went to the door with the gun still in his hand to see which way Butler went. He saw Butler pull a rifle from his car and start shooting. Gaston made no attempt to fire back, but ran to the side of the building. He was hit by bullets in the…