People v. Cathy CA2/8 ( 2022 )

Filed 8/23/22 P. v. Cathy CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT
THE PEOPLE, B311712
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. NA058508
v.
CHARLES RAY CATHY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, William C. Ryan, Judge. Affirmed.
Jenny M. Brandt, 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, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Steven E. Mercer, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
Charles Ray Cathy appeals the trial court’s denial of his
petition for resentencing under Penal Code section 1170.126. We
affirm. Statutory citations are to the Penal Code.
We grant Cathy’s March 18, 2022 unopposed request for
judicial notice of a portion of the reporter’s transcript from his
original trial.
In 2004, a jury convicted Cathy of firing a handgun with
gross negligence (§ 246.3) (count 1) and of being a felon in
possession of a firearm (former § 12021, subd. (a)(1), now § 29800,
subd. (a)(1)) (count 2).
The opinion in Cathy’s direct appeal described the facts:
“At around 4:30 a.m. on September 14, 2003, [] Cathy and
Terence Crawford tried to force their way into the Long Beach
apartment of Cathy’s former girlfriend, Patricia Manuel. They
were stopped by Manuel’s adult son, Darryl Harris, who scuffled
with Cathy. Harris pushed Cathy against a living room window,
breaking it. Cathy told Crawford, ‘give me that,’ and Crawford
handed something to Cathy. Harris ran back inside the
apartment and locked the door. Manuel looked out her bedroom
window and saw a grey car drive off, go past her apartment, then
back up. Soon after, three gunshots were fired from a nearby
driveway. The incident was witnessed by neighbor Dina Galindo.
The police were called and responded so quickly they spotted
Cathy and Crawford driving off. The officers stopped and
searched the car, where they found a 10-shot, 9 mm Ruger
handgun that was registered to Crawford. The gun had one
bullet in the chamber and six in the magazine. Another fully
loaded magazine was found nearby. Galindo identified Cathy
and Crawford as the men she had seen trying to enter Manuel’s
apartment and firing gunshots in the direction of that apartment.
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The incident took place just four days after Cathy was released
from jail after serving a prison sentence for robbery.” (People v.
Cathy (Nov. 23, 2005, B175971) [nonpub. opn.].)
According to trial testimony, Crawford was the driver, and
police found the gun underneath the driver’s seat.
The court found Cathy had two prior convictions that
qualified as strikes. (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–
(d).)
The court sentenced Cathy to 30 years to life in state
prison. The sentence included a five-year serious felony
enhancement (§ 667, subd. (a)(1)).
In 2019, Cathy filed a motion to strike the section 667,
subdivision (a)(1) enhancement. The trial court denied the
motion. On appeal, Cathy and the prosecution agreed Cathy’s
2004 convictions were not for serious felonies. We agreed and
struck the enhancement. (People v. Cathy (May 28, 2020,
B299244) [nonpub. opn.].) We explained that firing a handgun
with gross negligence was absent from the enumerated list of
serious felonies and the record did not establish Cathy personally
used a dangerous or deadly weapon. (Id.; see § 1192.7, subd. (c).)
After that, Cathy petitioned the trial court for resentencing
under section 1170.126. This section applies to defendants
serving a life sentence under the “Three Strikes” law for a
nonserious, nonviolent felony commitment offense. A defendant
is ineligible for relief if “[d]uring the commission of the current
offense, the defendant . . . was armed with a firearm or deadly
weapon . . . .” (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd.
(c)(2)(C)(iii); see § 1170.126, subd. (e)(2).)
The court denied Cathy’s petition in a written order. The
court found, beyond a reasonable doubt, that Cathy was ineligible
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for relief because he was armed with a firearm during the
commission of his offenses.
Because the trial court’s eligibility determination was
based on evidence in the record of conviction, this is a factual
determination that we review for substantial evidence. (See
People v. Perez (2018) 4 Cal.5th 1055, 1066.)
Substantial evidence supports the court’s finding that
Cathy was armed.
For the purposes of section 1170.126, armed means having
a weapon available for use, either offensively or defensively.
(People v. Cruz (2017) 15 Cal.App.5th 1105, 1109–1110 (Cruz).)
The key is the availability and ready access to a weapon. (Id. at
p. 1110; accord People v. White (2016) 243 Cal.App.4th 1354, 1362
[defendants are armed if they are aware a weapon is hidden in a
readily accessible place].)
Defendants need not use or hold a weapon to be armed.
(People v. Bland (1995) 10 Cal.4th 991, 997.) Moreover, being
armed does not mean the deadly weapon facilitated the
commission of the charged offense. The statute requires only a
temporal nexus: arming during the offense. (Cruz, supra, 15
Cal.App.5th at pp. 1111–1112.)
There is substantial evidence Cathy had ready access to a
weapon. Although the gun belonged to Crawford, Cathy worked
in concert with Crawford during the commission of his offenses.
They tried to enter the apartment together, returned to the car
together, and drove away together. A witness identified them as
the men she saw trying to enter the apartment and firing
gunshots toward the apartment. (People v. Cathy, supra,
B175971.) The men were together when police pulled them over
and found the gun. Furthermore, the jury’s verdict that Cathy
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was a felon in possession of a firearm, while not dispositive (see
People v. Byers (2020) 53 Cal.App.5th 1106, 1111–1112), supports
the finding that Cathy had ready access to a firearm. There was
substantial evidence Cathy was armed during his offenses.
This court’s earlier decision about personal use does not
foreclose the trial court’s finding, for being armed does not
require a person to use a weapon personally.
Cathy raises constitutional claims that fail. He says the
trial court, by making factual findings, violated his Fifth, Sixth,
and Fourteenth Amendment rights. He concedes the California
Supreme Court “rejected an identical claim in People v. Perez
(2018) 4 Cal.5th 1055, 1063–1064” and says he raises the issue to
preserve it for further review. Perez held that the Sixth
Amendment does not prohibit trial courts from relying on facts
not found by a jury to determine whether a defendant is ineligible
under section 1170.126. (Id. at p. 1064.) Because of Cathy’s
concession and binding precedent, we need not address this issue.
Cathy’s opening brief and reply brief later attempt to
reverse his concession about his “identical claim,” but his
argument still fails. He says California precedents do not
squarely address his claim that the trial court violated his right
to notice under the due process clause because he had no notice
about the “arming allegation” at his 2004 trial. This contention is
incorrect. The reasoning in the trial by jury cases applies in the
due process context. (E.g., People v. Perez, supra, 4 Cal.5th at pp.
1063–1064 [factual finding that results in resentencing
ineligibility does not increase sentence; it simply leaves original
sentence intact].) Furthermore, when he filed his petition, Cathy
had notice that having been armed would exclude him from
eligibility. He had the opportunity, with counsel, to address this
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in his petition. There was no due process violation when the trial
court determined Cathy was armed.
DISPOSITION
The order is affirmed.
WILEY, J.
We concur:
STRATTON, P. J.
GRIMES, J.
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