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Filed 7/10/15 P. v. Grayson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM GRAYSON,

Defendant and Appellant.

C073803

(Super. Ct. No. 12F06863)

Appointed counsel for defendant William Grayson has filed an opening brief that 

sets forth the facts of the case and requests that this court review the record and determine 

whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 

436.) Defendant has filed a supplemental brief, claiming (1) that his speedy trial rights 

were violated due to continuances of his trial requested by his counsel and granted over 

his objection, (2) counsel wrongly filed a motion to suppress evidence, and (3) 

insufficient evidence was offered at trial to prove his identity. Subsequently, we 

permitted counsel to file a supplemental brief, contending defendant’s prior prison term 
2

sentencing enhancements must be stricken. As we explain, we find these claims 

unpersuasive and fail to find any arguable error that would result in a disposition more 

favorable to defendant. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A jury found defendant guilty of evading a pursuing peace officer while operating 

a motor vehicle. (Veh. Code, § 2800.2, subd. (a).) The trial court found that he had a 

prior serious felony conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12)1 and had 

served six prior prison terms (§ 667.5, subd. (b)). The court denied his motion to dismiss 

the prior serious felony allegation (§ 1385; People v. Superior Court (Romero) (1996) 

13 Cal.4th 497) and sentenced him to prison for 12 years, consisting of twice the upper 

term of three years plus six years for the prior convictions. He was awarded 212 days of 

actual custody credit and 212 days of conduct credit (§ 4019) and was ordered to pay 

various fines and fees. Pursuant to a request from appellate counsel, the trial court struck 

previously imposed booking and classification fees. 

The evidence presented to the jury included the following:

On October 11, 2012, around 9:11 p.m., Sacramento Police Officer Christopher 

Shippen was on duty, driving and looking for a specific person other than defendant. The 

person and defendant had the same “basic characteristics” in that they were white males 

with short hair and the same average build. 

Shippen saw a male driving a motorcycle, wearing dark clothes, a long-sleeved 

heavy sweatshirt or jacket, dark blue jeans, black and white shoes with a distinctive 

camouflage pattern, and a black helmet. The motorcyclist was a white male with short 

hair that did not extend below the helmet. Above the collar line of the motorcyclist’s 

shirt was a distinctive black ink tattoo that emerged from the shoulder blades toward the 

 

1

 Further undesignated statutory references are to the Penal Code.
3

center of the neck and extended three to four inches above the collar. Shippen got “a 

decent look” at the motorcyclist when the patrol car was parallel to the motorcyclist and 

its headlights illuminated the motorcyclist’s body. 

Shippen followed the motorcycle, ultimately with lights and sirens after the driver 

violated numerous traffic laws with Shippen in pursuit. Finally, the street the two were 

driving on came to a dead end at railroad tracks. The motorcyclist followed the tracks 

across the railroad bridge over Highway 160 and proceeded to the north side of the 

American River. Because Shippen could not follow the motorcyclist over the railroad 

bridge in his patrol car, a helicopter followed the motorcyclist. Shippen drove to the 

location where the helicopter was hovering near the now-abandoned motorcycle. Other 

officers were also gathering at this location, including Officer Steven Thompson and his 

police dog Crash. It was about 9:15 p.m. Shippen described the motorcyclist for 

Thompson.

Crash started barking, an indication that he was “smelling a bad guy,” and 

Thompson announced the dog’s imminent deployment. Crash “took off” toward the 

river, tracking ground and air scents associated with stress and perspiration. Crash 

jumped into the river, swam approximately 10 yards, returned to shore, located a shirt at 

the waterline, and tore at it violently to indicate that it was the suspect’s shirt. 

After Thompson retrieved the shirt from Crash’s mouth, the duo continued to 

follow the scent. Crash led Thompson along a small bike trail through a wooded area 

about 100 yards from the shoreline. Then Officer Thompson heard Crash growling and a 

male voice screaming or yelling. Crash had located defendant, who was in a sleeping bag 

that covered most of his lower body. The canine pursuit lasted 40 minutes. Shippen 

identified defendant as the motorcyclist he had been pursuing, testifying that he 

recognized defendant’s build, short hair, neck tattoo, and distinctive camouflage shoes by 

brand, pattern, and color. Defendant was wet; his shirt and pants were “saturated.” The 

sleeping bag defendant was found in was also “completely wet.” 
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After being advised of his constitutional rights, defendant admitted to Shippen that 

the motorcycle was his. He said that he had bought it, and it had not been stolen. The 

jury saw the videotape (recorded by the patrol car’s camera) of defendant’s conversation 

with Shippen.

Defendant testified that on the day of the incident he was on a bicycle, not a 

motorcycle. He had partied with friends at the river for about two hours. Then he had 

bathed in the river before going to sleep in his sleeping bag. He awoke to a dog biting 

him repeatedly. He was drunk and shaken from the canine attack when he talked to 

Shippen about the motorcycle, and he had thought they were talking about a bicycle. 

Defendant called a witness that corroborated his testimony, saying he had been 

with defendant at the river that entire evening. The witness had never seen defendant on 

a motorcycle. The witness acknowledged that, sometime after defendant’s arrest, he too 

was arrested and had discussed the incident at issue with defendant while they were in 

jail together. 

DISCUSSION

I

Right to Speedy Trial

A. Background

At the preliminary examination on December 27, 2012, defendant was represented 

by Assistant Public Defender Alina Mendez. After the complaint was deemed an 

information and defendant pleaded not guilty, the court clerk noted that the 60th day 

(§ 1362, subd. (a)) was February 25, 2013.2 Trial was set for February 19, and later reset 

to February 21.

 

2

 All unspecified dates in this part of the Discussion are to 2013.
5

On February 21, defendant was represented by Assistant Public Defender John 

Buchholz who asserted defendant’s desire for a speedy trial and refusal to waive time. 

Counsel indicated that he would be in trial on other matters and asked that this case trail 

to February 25 (the 60th day) to allow for the possibility of reassigning the case to 

another attorney who could try it that day. The trial court denied the request, explaining 

that any new attorney would need time to get prepared, and found good cause to continue 

the case to March 4. Defendant made a Marsden3 motion in which he raised the issue of 

a speedy trial. The motion was denied. 

Court proceedings resumed on March 4. Counsel for both parties noted that the 

defense had filed a motion to suppress evidence and requested a continuance to March 15 

for the suppression hearing and to March 20 for trial. Defendant personally objected and 

emphasized that he was demanding a speedy trial and was not agreeing to waive time. 

Defendant’s counsel responded that there was good cause for continuance in that the 

suppression motion had resulted from recently obtained discovery and the prosecution 

requested time to respond in writing. The trial court acknowledged defendant’s “very 

strong objection” but found good cause for continuance until March 19.

On March 19, an attorney from the public defender’s office appeared and 

represented that Buchholz was in a jury trial, requesting good cause be found to continue 

defendant’s trial to March 26--Buchholz’s first available date. The trial court again noted 

defendant’s strong objection, found good cause, and continued the trial. 

On March 26, Buchholz represented that he had just been assigned another trial 

and that his first available date would be April 4, announcing that date as “[z]ero of ten.” 

(§ 1382, subd. (a)(3)(B).) 

 

3

 People v. Marsden (1970) 2 Cal.3d 118 (Marsden). 
6

On April 4, another attorney from the public defender’s office appeared for 

Buchholz, and requested to trail defendant’s trial to April 11--day seven of 10. The trial 

court granted that request. The trial actually started on April 15. Defendant personally 

objected to the case going forward and specifically objected to the findings of good cause 

and to the resetting of the 10-day clock due to unavailable counsel. The trial court 

examined the record of continuances and the good cause that had been found for each. 

The court explained that it did not have authority to review those earlier decisions but 

was placing the matter on the record for appellate review in the event of a conviction. 

Defendant was found guilty on April 18, 2013. 

On May 7, 2013, defendant personally filed a handwritten motion to dismiss the 

charge against him on the ground that his right to a speedy trial had been violated. The 

trial court declined to rule on the pro per motion.

B. The Law

As relevant here, section 1382, subdivision (a) provides: “The court, unless good 

cause to the contrary is shown, shall order the action to be dismissed in the following 

cases: . . . [¶] (2) In a felony case, when a defendant is not brought to trial within 60 

days of the defendant’s arraignment on an . . . information. . . .” “Whether there is good 

cause for a delay beyond the 60-day limit depends on the circumstances of the particular 

case and is a determination within the discretion of the trial court. An appellate court will 

not disturb that determination absent a showing of abuse of discretion. [Citation.]” 

(Hollis v. Superior Court (1985) 165 Cal.App.3d 642, 645.)

“Defense counsel . . . ordinarily has authority to waive the statutory speedy trial 

rights of his or her client, even over the client’s objection, as long as counsel is acting 

competently in the client’s best interest. [Citations.] This is because statutory speedy 

trial rights are not among those rights that are considered so fundamental that they are 

‘beyond counsel’s primary control.’ [Citations.] On the other hand, our concern for the 

client’s right to the assistance of unconflicted counsel has led us to conclude that 
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appointed defense counsel lacks authority to waive his or her client’s statutory speedy 

trial rights when the client personally objects to a continuance and the sole reason for the 

continuance is defense counsel’s obligation to another client. [Citations.]” 

(Barsamyan v. Appellate Division of Superior Court (2008) 44 Cal.4th 960, 969.) A 

“defendant raising the issue after conviction must prove not only unjustified delay in 

bringing his case to trial but also prejudice flowing from that delay.” (People v. Johnson

(1980) 26 Cal.3d 557, 574.)

C. Contentions

Defendant first asserts that Buchholz replaced Mendez because Mendez had 

desired to waive time for trial, which defendant adamantly opposed. The assertion is 

based upon defendant’s oral conversation with Mendez that is not in the appellate record. 

Nothing in the record suggests that Mendez lacked good cause to seek to waive time or 

that her replacement with Buchholz somehow prejudiced defendant. In a Marsden

hearing following the substitution of counsel, Buchholz explained that Mendez would be 

in trial in another case for the ensuing month and that the matter was reassigned to 

Buchholz in an attempt to honor defendant’s wish for a speedy trial. 

Defendant next notes that he disagreed with counsel Buchholz’s February 21 

request to trail the case and its continuance to March 4. Defendant claims that, evidently 

at the Marsden hearing, he made it clear that he “did not want the Public Defender’s 

office to represent” him. The transcript of the hearing does not support this claim. 

Rather, at the hearing, defendant stated that he did not “have a problem with” Buchholz 

and simply wanted to indicate that he was “not agreeing with” counsel “waiving [his] 

time for this trial.” Moreover, the trial court noted defendant’s objection but found good 

cause for the continuance based on counsel’s unavailability and the time it would take for 

new counsel to prepare.

Defendant argues that he asked Buchholz not to continue trial for purposes of 

filing a suppression motion. But defendant does not claim that this (16 day) delay was 
8

unlawful or prejudicial. He does, however, claim the series of short continuances was 

prejudicial because he lost the testimony of a “key witness,” Thomas Hope Jr. (identified 

in the reporter’s transcript as Thomas Hogue), whom Officer Shippen had arrested at the 

same intersection where he had first encountered defendant. The arrest of Hope occurred 

shortly after the arrest of defendant. Defendant argues that Hope had appeared in court at 

the beginning of trial but ceased attending due to the delay in the trial date, but there is no 

evidence supporting this contention in the record. Defendant bears the burden of 

supporting his arguments on appeal, and he has made no effort to do so here. He has not 

shown that he was prejudiced by Hope’s absence, or even that Hope’s absence was the 

result of the continuances. 

Defendant has not asserted any other claim of prejudice that resulted from the 

delay in bringing the case to trial. Therefore, even if defendant has shown unjustified 

delay, he has not shown resulting prejudice. (People v. Johnson, supra, 26 Cal.3d at 

p. 574.) Accordingly, this claim fails. 

To the extent defendant claims that counsel rendered ineffective assistance by 

failing to move for dismissal of the action based on the trial delay caused by the 

continuances, we are not persuaded. “ ‘ “[If] the record on appeal sheds no light on why 

counsel acted or failed to act in the manner challenged [,] . . . unless counsel was asked 

for an explanation and failed to provide one, or unless there simply could be no 

satisfactory explanation,” the claim on appeal must be rejected.’ [Citations.] A claim of 

ineffective assistance in such a case is more appropriately decided in a habeas corpus 

proceeding. [Citations.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) In 

this case, trial counsel was not asked for any explanation as to why he had failed to file a 

motion to dismiss and there is none provided to us. There could easily be a satisfactory 

explanation, such as counsel’s determination that the continuances were justified by good 

cause and a motion to dismiss would be unwarranted, and would only result in further 
9

delaying defendant’s trial after he had made clear he wanted a trial as soon as possible. 

Therefore, defendant has failed to show ineffective assistance of counsel. 

II

Suppression Motion

On February 28, 2013, Buchholz filed a motion to suppress all evidence, including 

defendant’s statement, which was obtained as a result of the warrantless search and 

seizure of defendant. In his supplemental brief, defendant argues that he did not want 

Buchholz to file the motion because the conversation Buchholz sought to suppress helped 

to prove defendant’s innocence. Defendant reasons that Buchholz’s filing of the motion 

against his wishes was prejudicial in that “the end result was a redacted statement taken 

out of context that reads out like [defendant] confessed to a crime that [he] did not 

commit.” 

The trial court denied Buchholz’s motion to suppress, which alleged that the 

officers did not have reasonable suspicion to detain defendant. Nothing indicates any 

redaction occurred as a result of this suppression motion. Rather, it appears the redaction 

of defendant’s statement was the result of a stipulation by counsel to remove a portion “in 

which the defendant is talking about his gang affiliation within prison and his 

probationary, parole status, things of that nature.” Neither the record nor defendant 

indicates how this redacted portion would be exculpatory or how its exclusion would be 

inculpatory. Therefore, we cannot conclude any error or prejudice resulted from counsel 

Buchholz’s pursuit of the motion to suppress evidence, or as a result of the redaction.

III

Sufficiency of Evidence of Tattoo

Defendant next claims “the evidence used by the state to convict [him] does not 

support the conviction.” He challenges Shippen’s identification of him based only on his 

tattoo. Specifically, defendant questions Shippen’s ability to see the motorcyclist’s neck 

tattoo during the high-speed chase at night time while the motorcyclist was wearing a 
10

helmet. We hold this observation when added to the other evidence presented at trial was 

sufficient to permit the jury to arrive at the conclusion it reached.

“On appeal, the test of legal sufficiency is whether there is substantial evidence, 

i.e., evidence from which a reasonable trier of fact could conclude that the prosecution 

sustained its burden of proof beyond a reasonable doubt. [Citations.] Evidence meeting 

this standard satisfies constitutional due process and reliability concerns. [Citations.] [¶] 

While the appellate court must determine that the supporting evidence is reasonable, 

inherently credible, and of solid value, the court must review the evidence in the light 

most favorable to the [judgment], and must presume every fact the jury could reasonably 

have deduced from the evidence. [Citations.] Issues of witness credibility are for the 

jury. [Citations.]” (People v. Boyer (2006) 38 Cal.4th 412, 479-480.) “ ‘ “ ‘To warrant 

the rejection of the statements given by a witness who has been believed by the [trier of 

fact], there must exist either a physical impossibility that they are true, or their falsity 

must be apparent without resorting to inferences or deductions.’ ” ’ [Citation.]” 

(People v. Friend (2009) 47 Cal.4th 1, 41, quoting People v. Barnes (1986) 42 Cal.3d 

284, 306.) 

Here, Shippen testified that although it was dark, the night was clear, and there 

was ambient lighting from the streetlights. The headlights on his patrol car were on. 

Shippen recalled the motorcyclist was wearing dark clothes, black and white shoes of a

specific brand with a distinctive camouflage pattern, and a black helmet. He could also 

tell that the motorcyclist was a white male because Shippen could see the skin on the 

back of the motorcyclist’s neck below the motorcyclist’s helmet and short hair. Shippen 

also saw, above the collar of the motorcyclist’s shirt, a distinctive black ink tattoo that 

came up from the motorcyclist’s shoulder blades toward the center of the neck. After 

defendant was detained by Crash and his handler, Shippen identified defendant as the 

motorcyclist. He testified defendant had the same build, was the same white male with 

short hair, had the same distinctive tattoo visible above the collar of his shirt, and was 
11

wearing the same distinctive shoes as the motorcyclist. No physical impossibility or 

falsity is apparent in this testimony; therefore, we will not reject it. 

Moreover, we conclude this evidence, when added to Crash’s tracking and 

identification of defendant based on stress and perspiration scents, the fact that defendant 

and the sleeping bag he was in were soaking wet when found, and defendant’s statements 

to the police, is sufficient to support defendant’s conviction.

IV

Sentencing Enhancements

In the supplemental brief, counsel contends the passage of Proposition 47 by the 

electorate in November 2014 operates to retroactively invalidate the sentencing 

enhancements imposed by the trial court pursuant to section 667.5, subdivision (b) for 

defendant’s prior prison terms. We disagree. 

Defendant was sentenced in the instant matter to six consecutive one-year 

enhancements based on his six prior prison terms. Defendant’s most recent prison term 

resulted from his 2009 conviction for two counts of possession of a controlled substance. 

(Health & Saf. Code, §§ 11350, subd. (a) & 11377, subd. (a).) His next most recent 

prison term was imposed pursuant to his 2002 conviction for felony evasion. (Veh. 

Code, § 2800.2, subd. (a).) He was released on parole from that prison term on 

August 31, 2004. Defendant had one intervening felony conviction in 2006, for 

possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), but he was not 

sentenced to prison for that conviction. All other prison terms (1985, 1989, 1993, and 

1998) preceded the 2002 term noted above. 

Pursuant to section 667.5, subdivision (b), a convicted felon is subject to a oneyear sentencing enhancement “for each prior separate prison term” served before 

committing the current offense. However, the enhancement does not apply for prison 

terms served “prior to a period of five years in which the defendant remained free of both 

the commission of an offense which results in a felony conviction, and prison custody.” 
12

(§ 667.5, subd. (b).) Here, the only prison sentence within five years of the commission 

of the current offense is the sentence arising from defendant’s 2009 conviction. Thus, if, 

as defendant claims, the enhancement for defendant’s 2009 conviction and prison 

sentence is invalid, the other enhancements imposed pursuant to section 667.5,

subdivision (b) would be “wash[ed] out” as well. (See In re Preston (2009) 176 

Cal.App.4th 1109, 1115-1116 [“ ‘ “washing out” ’ ” connotes “ ‘a crime-free cleansing 

period of rehabilitation after a defendant has had the opportunity to reflect upon the error 

of his or her ways’ ”].) 

Possession of a controlled substance in violation of Health and Safety Code 

sections 11350 and 11377 was punishable as a felony at the time defendant committed 

and was convicted of those offenses and sentenced to prison for those offenses (in 2009), 

when he committed the current offense (in 2012), and when judgment was imposed (in 

2013). (Stats. 2000, ch. 8, § 3; Stats. 2008, ch. 292, § 3; Stats. 2011, ch. 15, §§ 151, 171.) 

However, in November 2014, voters passed Proposition 47, also called the “Safe 

Neighborhoods and Schools Act.” (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 

2014).) Among its provisions, Proposition 47 reclassified most violations of Health and 

Safety Code sections 11350 and 11377 as misdemeanors rather than felonies, subject to 

certain exceptions not applicable here. (Prop. 47, §§ 11, 13.) 

The passage of Proposition 47 also created Penal Code section 1170.18, which 

provides for any defendant “currently serving a sentence for a conviction . . . of a felony 

or felonies who would have been guilty of a misdemeanor under [Proposition 47] . . . had 

[it] been in effect at the time of the offense [to] petition for a recall of sentence before the 

trial court that entered the judgment of conviction in his or her case to request 

resentencing” under the statutory framework as amended by the passage of Proposition 

47. (§ 1170.18, subd. (a).) If a defendant properly seeks recall and resentencing pursuant 

to section 1170.18, subdivision (a), the trial court must grant resentencing unless, in its 

discretion, it determines resentencing “would pose an unreasonable risk of danger to 
13

public safety.” (§ 1170.18, subd. (b).) If, however, the person has already completed his 

or her sentence for a felony conviction that would have been a misdemeanor if 

Proposition 47 had been enacted at the time of the offense, the trial court must designate 

the felony conviction a misdemeanor upon the application of a person seeking such relief. 

(§ 1170.18, subds. (f), (g).) However, the trial court’s mandate to reduce such felonies to 

misdemeanors upon application does not, contrary to defendant’s contention, entitle him 

to relief from this court on direct appeal from a judgment imposed for a subsequent

offense. 

As a general rule, when a statute is amended “to reduce the punishment for a 

particular criminal offense, we will assume, absent evidence to the contrary, that the 

[enacting body] intended the amended statute to apply to all defendants whose judgments 

are not yet final on the statute’s operative date.” (People v. Brown (2012) 54 Cal.4th 314, 

323, fn. omitted.) However, this rule “is not implicated where the [enacting body] clearly 

signals its intent to make the amendment prospective, by the inclusion of either an 

express saving clause or its equivalent.” (People v. Nasalga (1996) 12 Cal.4th 784, 793, 

fn. omitted.) 

We have previously concluded that a defendant was not entitled to retroactive 

application of Proposition 47 while the judgment from which he sought relief was on 

direct appeal. (People v. Noyan (2014) 232 Cal.App.4th 657, 672.) We concluded 

instead that such defendants were entitled to petition the trial court for a recall of 

sentence and resentencing pursuant to section 1170.18 once the judgment was final. 

(Noyan, at p. 672.) Similarly, section 1170.18, subdivision (f) provides an express 

remedy for defendants who, as in this case, have already completed serving a sentence for 

a felony conviction that would have been a misdemeanor under Proposition 47. 

Defendant has not indicated that he has availed himself of that statutory remedy. In light 

of the existence of that relief, we conclude, as we did in Noyan, that it was the 

electorate’s intent that Proposition 47 be applied prospectively only. Therefore, 
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defendant is not entitled on this direct appeal to have his 2009 felony conviction 

redesignated as a misdemeanor. 

In light of our conclusion that defendant is not entitled to redesignation of his 2009 

felony conviction on this appeal, we do not reach his claim that such redesignation 

operates to retroactively invalidate his prior prison term enhancements in the current 

case. 

Lastly, we are not persuaded by defendant’s contention that failing to apply 

Proposition 47 retroactively violates equal protection principles. Numerous courts have 

rejected similar equal protection challenges premised on “the timing of the effective date 

of a statute lessening the punishment for a particular offense.” (People v. Floyd (2003) 

31 Cal.4th 179, 188.) Indeed, legislative bodies “ ‘may specify that such statutes are 

prospective only, to assure that penal laws will maintain their desired deterrent effect by 

carrying out the original prescribed punishment as written’ ” (ibid.) and may even deny 

retroactive application simply to avoid “ ‘remandments for additional sentencing 

hearings’ ” (id at p. 190) for persons sentenced prior to the effective date of the measure. 

Accordingly, we conclude the prospective-only application of Proposition 47 does not 

violate equal protection principles. 
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DISPOSITION

The judgment is affirmed.

 DUARTE , J.

We concur:

 BLEASE , Acting P. J.

 BUTZ , J.