People v. Gray CA4/3

Filed 8/24/20 P. v. Gray CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G058895

v. (Super. Ct. No. RIF127539)

LEWIS GRAY IV, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Riverside County, John D. Molloy, Judge. Affirmed. Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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In 2011, a jury convicted appellant Lewis Gray IV on four counts, as 1 follows: first degree murder (Penal Code, § 187, subd. (a); count 1) ; conspiracy to commit murder (§ 182, subd. (a); count 2); attempted voluntary manslaughter, as a lesser included offense of premeditated attempted murder, (§§ 664; 187, subd. (a); count 3); and malicious discharge of a firearm at an inhabited dwelling. (§ 246; count 4.) On all counts, the jury found Gray committed his crimes to benefit a criminal street gang (§ 186.22, subd. (b)). On count 1, the jury additionally found two special circumstances true: Gray already had been convicted for a different murder and committed the murder in this case as an active gang participant (§ 190.2, subds. (a)(2) & (22).) On counts 1 and 2, the jury found Gray committed his crimes as a principal and as a principal he discharged a firearm causing great bodily injury to benefit a gang. (§ 12022.53, subds. (d) & (e).) On count 4, the jury found Gray personally used a firearm. (§§ 667; 1192.7, subd. (c)(8).) In an unpublished opinion, this court reversed the gang participant special circumstance for count 1 and ordered the correction of two errors in the abstract of judgment, but affirmed the judgment in all other respects. (People v. Gray (Dec. 10, 2014, as modified Jan. 7, 2015, G049823) [nonpub. opn.].) In 2019, Gray filed a petition to vacate his convictions under section 1170.95, alleging he was convicted “pursuant to the felony murder rule or the natural and probable consequences doctrine.” The prosecutor moved to dismiss, asserting no felony murder or natural and probable consequence instructions were given at trial. The prosecutor also asserted that on count 1, the jury had been instructed through CALCRIM No. 702 to find as true a special circumstance for a prior murder conviction to be true only if it concluded Gray had either actually killed or acted with intent to kill in the underlying shooting. Gray’s counsel did not disagree with the assertions and the court dismissed Gray’s petition. 1 All further undesignated statutory references are to the Penal Code.