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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

1

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.