People v. Cathy, B311712

CourtCalifornia Court of Appeals
Writing for the CourtWILEY, J.
PartiesTHE PEOPLE, Plaintiff and Respondent, v. CHARLES RAY CATHY, Defendant and Appellant.
Docket NumberB311712
Decision Date23 August 2022

THE PEOPLE, Plaintiff and Respondent,
v.

CHARLES RAY CATHY, Defendant and Appellant.

B311712

California Court of Appeals, Second District, Eighth Division

August 23, 2022


NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County, No. NA058508 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.

1

WILEY, J.

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.

2

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...

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