Opinion
C085006
08-10-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID EARL GRAY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 97F03853)
In this appeal from the denial of a petition for resentencing under Proposition 47, the Safe Neighborhoods and Schools Act of 2014 (Pen. Code, § 1170.18), appointed counsel for appellant David Earl Gray filed an opening brief that sets forth the facts of the case and asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After reviewing the entire record, we have found no arguable error that would result in a disposition more favorable to defendant.
Undesignated statutory references are to the Penal Code. --------
I. BACKGROUND
Between March 26, 1997, and May 9, 1997, defendant and an accomplice robbed various fast food restaurants in Sacramento. He and his accomplice pleaded no contest to conspiracy to commit robbery (§§ 182, subd. (a)(1), 211, count 8), two counts of robbery (§ 211, counts 9 & 11), and two counts of false imprisonment (§ 236, counts 10 & 12). Defendant admitted to personally using a deadly or dangerous weapon as to the robbery and false imprisonment counts. He was sentenced to seven years four months in state prison. His conviction was affirmed in an unpublished opinion. (People v. Gray (Mar. 7, 2000, C030913) [nonpub. opn.].)
Defendant is currently serving a 51-year-to-life state prison term for second degree murder (§ 187, subd. (a)) with two strikes based on the robbery priors. (People v. Gray (Feb. 8, 2013, C064105) [nonpub. opn.].) In March 2017, he filed a section 1170.18 petition seeking redesignation of the two robbery priors. The trial court denied the petition, finding the robbery convictions were ineligible for resentencing.
II. DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant filed a supplemental brief asserting his prior conviction for robbery does not automatically disqualify him from resentencing. Proposition 47 reduced certain theft offenses to misdemeanors where the value of the stolen items did not exceed $950, his no contest plea did not admit to the elements of robbery, and his current conviction for murder does not disqualify him from resentencing.
Robbery is not one of the offenses subject to section 1170.18 relief. (§ 1170.18, subd. (a).) His no contest plea admits every element of the offense. (People v. Saez (2015) 237 Cal.App.4th 1177, 1206.) Defendant's robbery convictions were final in 2000. He cannot now use a section 1170.18 proceeding to collaterally attack the validity of his prior plea. (See People v. Clark (2017) 8 Cal.App.5th 863, 873 ["a section 1170.126 proceeding is not a 'plenary resentencing proceeding' "].) The trial court correctly denied the petition.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
III. DISPOSITION
The judgment (order) is affirmed.
/s/_________
Renner, J. We concur: /s/_________
Duarte, Acting P. J. /s/_________
Hoch, J.