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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,

Plaintiff and Respondent,

v.

CHARLES RAY CATHY,

Defendant and Appellant.

 B311712

 Los Angeles County

 Super. Ct. No. NA058508

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.

____________________
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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. 
3

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 
4

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 
5

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 
6

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.