People v. Gray CA3

Filed 5/23/23 P. v. Gray CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C096653
Plaintiff and Respondent, (Super. Ct. No. 22CF02496)
v.
BILLY RAY GRAY,
Defendant and Appellant.
Defendant Billy Ray Gray pleaded no contest to vandalism and obstructing a
peace officer and admitted a prior strike conviction. The trial court sentenced him to four
years in prison. Defendant argues the trial court erred in failing to strike his prior strike
conviction under Penal Code section 1385, subdivision (c)1 as amended by Senate Bill
No. 81 (2021-2022 Reg. Sess.) (Senate Bill No. 81), and in refusing to dismiss his prior
1 Undesignated statutory references are to the Penal Code.
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strike pursuant to his Romero2 motion under section 1385, subdivision (a). Defendant
further argues the trial court violated equal protection when it refused to apply custody
credits from a separately dismissed case. Disagreeing, we shall affirm the judgment.
BACKGROUND
In November 2021, the prosecution charged defendant with first degree residential
burglary in a separate case (the burglary case). On June 28, 2022, the trial court
dismissed the burglary case as part of the plea negotiations we recount post.
During the pendency of the burglary case, officers responded to a call for
assistance in the inmate holding area of the courthouse where defendant was in a cell.
Defendant said he wanted to speak to the judge, and if the judge did not come speak to
him, the deputies were going to have to forcibly remove him from his cell. Defendant
was known to have a violent history toward the jail staff. He resisted the deputies’ efforts
to remove him from the cell; when deputies placed him in a van for transport, he kicked
at the back door of the transport van so hard it broke. The damage to the van door was in
excess of $1,600.
The amended complaint in the current case (vandalism case) charged defendant
with resisting an executive officer; vandalism; resisting, obstructing, or delaying a peace
officer; and alleged defendant had a serious or violent prior conviction. (§§ 69, subd. (a),
148, subd. (a), 594, subd. (a), 667, subd. (d) & 1170.12, subd. (b).) The alleged serious
or violent prior conviction was a 2003 burglary. Police arrested defendant in the
vandalism case on May 20, 2022, giving rise to 48 days of actual presentence time
attributable to the vandalism case.
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
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In the vandalism case, defendant pleaded no contest to vandalism; resisting,
obstructing, or delaying a peace officer; and admitted the prior conviction allegation.
The prosecution moved to dismiss the remaining charges in the vandalism case with a
waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 That dismissal also included
the dismissal of the burglary case.
At sentencing, defendant asked the court to impose the lower term and invited the
trial court to consider dismissing the prior conviction allegation under section 1385.
Defense counsel argued the burglary case was not strong, and the vandalism was not
more serious than the prior offenses. He noted defendant had a history of childhood
trauma, drug use, and mental health challenges, which included hearing voices. Finally,
counsel argued the prior 2003 burglary conviction was remote.
In examining the question of whether it should dismiss the prior strike pursuant to
section 1385, subdivision (c), the trial court found dismissing that enhancement would
endanger public safety because this 40-year-old defendant had seven prior felony
convictions, 11 parole violations, and had been incarcerated nearly all the time since he
was 15 years old. The court also considered that defendant was on parole at the time of
the instant offense, had used methamphetamine since he was 11 years old, and had not
demonstrated any intention of stopping his substance abuse. The court found the instant
offense was connected to mental illness and was not a violent felony, and that the strike
was over five years old, but nonetheless declined to strike the prior conviction allegation.
The trial court sentenced defendant to the middle term of two years in state prison
doubled to four years because of the prior strike.
Defense counsel asked that the court consider awarding defendant credit for the
full time he spent in jail awaiting trial on the dismissed burglary case. The court declined
to do so.
Defendant timely appealed.
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DISCUSSION
I
Prior Strike Conviction Under Senate Bill No. 81
Defendant first argues the trial court abused its discretion by denying his motion to
strike his prior conviction pursuant to section 1385, subdivision (c), as amended by
Senate Bill No. 81. Specifically, defendant argues doubling a base term under the Three
Strikes law qualifies as an “enhancement” under amended section 1385, subdivision (c),
and thus is subject to the dismissal provisions of the amended statute. He adds an
argument that the trial court abused its discretion by finding him a danger to public safety
and denying his motion accordingly. The Attorney General counters the Three Strikes
law is an alternative sentencing scheme, and not an enhancement, and thus unaffected by
Senate Bill No. 81. We agree with the Attorney General; accordingly, we need not reach
defendant’s abuse of discretion claim as to his section 1385, subdivision (c) argument.
“Senate Bill [ ] 81 became effective on January 1, 2022,” and amended section
1385 “to specify factors that the trial court must consider when deciding whether to strike
enhancements from a defendant’s sentence in the interest of justice.” (People v. Sek
(2022) 74 Cal.App.5th 657, 674; see Stats. 2021, ch. 721, § 1.) Section 1385, subdivision
(c) now provides: “(1) Notwithstanding any other law, the court shall dismiss an
enhancement if it is in the furtherance of justice to do so, except if dismissal of that
enhancement is prohibited by any initiative statute. [¶] (2) In exercising its discretion
under this subdivision, the court shall consider and afford great weight to evidence
offered by the defendant to prove that any of the mitigating circumstances . . . are present.
Proof of the presence of one or more of these circumstances weighs greatly in favor of
dismissing the enhancement, unless the court finds that dismissal of the enhancement
would endanger public safety. . . . [¶] . . . [¶] (7) This subdivision shall apply to
sentencings occurring after January 1, 2022.”
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While Senate Bill No. 81 addresses “enhancements,” the “Three Strikes law is a
penalty provision, not an enhancement. It is not an enhancement because it does not add
an additional term of imprisonment to the base term. Instead, it provides for an alternate
sentence . . . when it is proven that the defendant has suffered . . . prior serious felony
convictions. (See, e.g., People v. Superior Court (Romero)[, supra,] 13 Cal.4th [at p.]
527 [‘The Three Strikes law . . . articulates an alternative sentencing scheme for the
current offense rather than an enhancement.’].)” (People v. Williams (2014)
227 Cal.App.4th 733, 744; People v. Burke (2023) 89 Cal.App.5th 237, 242.)
Accordingly, the trial court did not prejudicially err.
II
Prior Strike Conviction under Romero
Defendant alternatively argues the trial court was required to dismiss his prior
strike conviction pursuant to section 1385, subdivision (a) in the interests of justice. We
disagree that the trial court abused its discretion in declining to do so.
Our Supreme Court held in Romero that trial courts have discretion under section
1385 to dismiss a prior strike when that court finds a defendant falls outside the spirit of
the Three Strikes law. (Romero, supra, 13 Cal.4th at pp. 529-530.) The court “must
consider whether, in light of the nature and circumstances of his present felonies and
prior serious and/or violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside the scheme’s spirit, in
whole or in part, and hence should be treated as though he had not previously been
convicted of one or more serious and/or violent felonies.” (People v. Williams (1998)
17 Cal.4th 148, 161.)
A trial court’s refusal “to dismiss or strike a prior conviction allegation is subject
to review under the deferential abuse of discretion standard.” (People v. Carmony (2004)
33 Cal.4th 367, 374.) Where the court, aware of its discretion, “ ‘balanced the relevant
facts and reached an impartial decision in conformity with the spirit of the law, we shall
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affirm the trial court’s ruling, even if we might have ruled differently in the first
instance.’ ” (Ibid.)
Here, implicit in the trial court’s ruling under section 1385, subdivision (c) is that
the dismissal of the prior conviction would not be in the interests of justice. In coming to
this conclusion, the court examined the defendant, his background, the nature of his
present offense, and other individualized considerations. It found he was 40 years old
and the current offense was not violent. However, in determining he was likely to be a
danger to the public, the court considered the facts that defendant had seven prior felony
convictions, 11 parole violations, and had been incarcerated almost nonstop for the last
25 years. The court explicitly found defendant was currently on parole, had a substance
abuse problem, and showed no intention of stopping that destructive pattern.
In contrast to People v. Dryden (2021) 60 Cal.App.5th 1007, and People v. Avila
(2020) 57 Cal.App.5th 1134, discussed in the parties’ briefing, here defend ant was
sentenced to four years in state prison, not a life sentence as in those two cases.
Moreover, defendant was exposed to substantially greater sentence in light of the pending
second strike, which was ultimately dismissed as part of the plea. Although defense
counsel argued to the trial court that the burglary case was weak, our review of the
probation report, to which the parties stipulated as a factual basis, reveals that the
burglary case appears quite strong. Unlike the sentences under review in Dryden and
Avila, defendant’s sentence was within the realm of reasonableness, even if this court
were to disagree with it.
We conclude the court considered the proper factors, reached an impartial decision
in conformity with the spirit of the law, and thus did not abuse its discretion in declining
to strike the prior conviction.
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III
Custody Credits
Defendant spent time in jail on the dismissed burglary case starting in November
2021. The trial court awarded him credit for the time he served directly for this
vandalism case starting in May 2022. Despite defendant’s request, the court did not
award him credit for the approximately six and one half months of custody between
November 2021 and May 2022 attributable to the burglary case.
On appeal, defendant concedes he was not entitled to credit for the dismissed
burglary case pursuant to language of section 2900.5, subdivision (a). He now argues
equal protection required the trial court to grant him custody credits in this vandalism
case, based on the time he served in custody for the prior dismissed burglary case.
Defendant postulates two classes of defendants spending time in custody for case A, and
then later charged with case B. In the first class, case A is not dismissed and credits for
both cases are applied to the final disposition in each case. In the second class, case A is
dismissed and the credit for time served in case A is lost. But he did not raise this
argument in the trial court.
Defendant argues we should not conclude he forfeited this argument because we
have discretion to address this important question of constitutional law. The Attorney
General concedes this issue is cognizable on appeal. We agree. If the trial court violated
equal protection in failing to grant defendant these custody credits, he would be serving
an unauthorized sentence. “A claim that a sentence is unauthorized . . . may be raised for
the first time on appeal.” (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)
On the merits, we conclude the two groups of defendants postulated by defendant
are not similarly situated. “ ‘ “The constitutional guaranty of equal protection of the laws
has been judicially defined to mean that no person or class of persons shall be denied the
same protection of the laws which is enjoyed by other persons or other classes in like
circumstances in their lives, liberty and property and in their pursuit of happiness.
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[Citations.]” [Citation.] The concept recognizes that persons similarly situated not be
treated differently unless the disparity is justified.’ ” (People v. Yanez (2019)
42 Cal.App.5th 91, 95.) “Thus, ‘ “[t]he first prerequisite to a meritorious claim under the
equal protection clause is a showing that the state has adopted a classification that affects
two or more similarly situated groups in an unequal manner.” ’ [Citations.] ‘Under the
equal protection clause, we do not inquire whether persons are similarly situated for all
purposes, but whether they are similarly situated for purposes of the challenged law.’
[Citations.] If there is such a disparity, then we must proceed to decide which level of
scrutiny to apply.” (Ibid.)
We conclude the two classes proposed by defendant are not similarly situated for
purposes of the challenged law. A person in custody awaiting the resolution of two cases
prosecuted to final disposition is not in a constitutionally similar position to a person who
is in custody for one case prosecuted to its conclusion and a separate unrelated dismissed
case. Notably, the first person faces two separate convictions, each of which has its own
punishment, and the time spent in custody for each of those convictions is properly
creditable to each of those two cases. The person in the second classification faces only a
single conviction and single punishment and suffers no legal adverse consequences from
the dismissed case (conviction, incarceration, probation, parole, fines, etc.). (See
People v. Murillo (1986) 178 Cal.App.3d 232, 238 [holding forfeiture of presentence
custody credits when obtaining the dismissal of that case by plea negotiation is not
fundamentally unfair].) Because these classes of defendants are not similarly situated,
defendant’s equal protection argument fails.
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DISPOSITION
The judgment is affirmed.
/s/
Duarte, J.
We concur:
/s/
Mauro, Acting P. J.
/s/
McAdam, J.
 Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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