Opinion
H043955
08-23-2018
THE PEOPLE, Plaintiff and Respondent, v. SEAN MICHAEL MURPHY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. F1556068)
Defendant Sean Michael Murphy pleaded no contest to stalking (Pen. Code, § 646.9, subd. (a)), misdemeanor making criminal threats (§ 422), and misdemeanor battery (§§ 242, 243, subd. (a)). The trial court placed defendant on probation.
All further statutory references are to the Penal Code. --------
On appeal, defendant's appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) that states the case and facts, but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. That period has elapsed and we have received no response from defendant.
Pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106 (Kelly), we have reviewed the entire record. Following the California Supreme Court's direction in Kelly, supra, at page 110, we provide a brief description of the facts and the procedural history of the case.
BACKGROUND
A. The Incidents
Defendant rented a storage unit from the victim for a few years until the victim had him evicted. During or after the eviction process, conflict arose between defendant and the victim.
In November 2014, defendant was outside the gate of the storage facility taking pictures with his cell phone through the gate. When the victim asked defendant what he wanted, defendant said something to the effect of, "Hey, you're gonna die. I'm gonna get you."
The victim's residence was a few houses away from the storage yard. In mid-June 2015, there was an envelope inside the victim's mailbox, which was located outside the front door to the victim's residence. The envelope contained papers regarding defendant suing the victim for the eviction. There was also a bullet inside the mailbox.
In late June 2015, defendant appeared outside the storage yard and threatened to kill the victim. He hit the victim in the face, causing the victim to bleed. The victim tried to close the gate to the storage yard to keep defendant out, but defendant kicked the gate, which hit the victim and knocked him down. Defendant told the victim that the victim was going to die. Defendant pulled out a lighter and a can of carburetor spray and made a torch. He told the victim that he was going to kill and burn the victim. The victim felt the heat from the torch and tried to get away, but he later realized that the hair on his arm had been burned. Defendant chased after the victim with the torch and again said that the victim was going to die. The victim threw a metal stool at defendant. Defendant threw it back at the victim before retreating with the torch.
The victim had reported each of the incidents to the police. He feared defendant and took defendant's threats seriously.
B. Charges and Pleas
On December 15, 2015, defendant was charged by first amended information with assault with a deadly weapon (§ 245, subd. (a)(1); count 1), stalking (§ 646.9, subd. (a); count 2), making criminal threats (§ 422; count 3), and misdemeanor battery (§§ 242, 243, subd. (a); count 4). The information further alleged that defendant personally used a deadly and dangerous weapon, a blow torch device, in the commission of count 3 (§ 12022, subd. (b)(1)).
On December 16, 2015, the trial court declared a doubt as to defendant's mental competence and suspended the criminal proceedings. (See § 1368.) The court appointed a psychologist to examine defendant and subsequently appointed two psychiatrists. On May 5, 2016, defendant's counsel and the prosecutor submitted the matter on the last psychiatrist's report, which concluded that defendant was competent to stand trial. The court found defendant mentally competent and reinstated criminal proceedings.
On May 18, 2016, on motion of the prosecutor, count 3 of the information was amended to allege misdemeanor making criminal threats (§ 422). Defendant pleaded no contest to the amended count 3, and pleaded no contest to counts 2 (stalking; § 646.9, subd. (a)) and 4 (misdemeanor battery; §§ 242, 243, subd. (a)). Defendant entered his pleas with the understanding that he would receive probation and a jail sentence with credit for time served. The remaining count was submitted for dismissal at the time of sentencing.
C. Sentencing and Appeal
On August 19, 2016, the trial court suspended imposition of sentence and placed defendant on probation for five years with various terms and conditions, including that he serve a one-year county jail term, which was deemed satisfied. The court made a general order of restitution and ordered defendant to pay various fines and fees. The court also issued an order restraining defendant from contact with the victim for 10 years. (See § 646.9, subd. (k).) The remaining count was dismissed.
Defendant filed a timely notice of appeal and we appointed counsel to represent him in this court.
DISCUSSION
Having carefully reviewed the entire record, we conclude that there are no arguable issues on appeal. (Wende, supra, 25 Cal.3d at pp. 441-443.)
DISPOSITION
The order of probation is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, ACTING P.J. WE CONCUR: /s/_________
MIHARA, J. /s/_________
DANNER, J.