Opinion
F086799
10-24-2024
THE PEOPLE, Plaintiff and Respondent, v. ANDRE LAMONT MURPHY, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County. No. CF99627147 Gabriel L. Brickey, Judge.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 1999, appellant and defendant Andre Lamont Murphy (appellant) was convicted after a jury trial of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), with a great bodily injury enhancement and two prior strike convictions. He was sentenced to the determinate term of 14 years plus the third strike term of 25 years to life. The judgment was affirmed on direct appeal. Thereafter, appellant filed numerous postjudgment petitions and motions for resentencing which have been denied.
All further statutory citations are to the Penal Code.
In 2022, appellant filed a motion for resentencing based on various statutory enactments, and it was summarily denied. In 2023, he filed a petition for resentencing, again based on various statutes, and it was also denied. He then filed two separate notices of appeal from the trial court's orders that denied these two motions/petitions in 2022 and 2023.
Appellate counsel filed a brief that summarized the facts with citations to the record, raised no issues, and asked this court to independently review the record. (People v. Delgadillo (2022) 14 Cal.5th 216.) After notice from this court, appellant did not file a letter brief.
We will review the record and affirm the trial court's orders.
After notice to the parties, and without objection, we take judicial notice of this court's records and nonpublished opinions in People v. Murphy/In re Andre Lamont Murphy (Oct. 17, 2000, F034165 & F036313) (Murphy I), that affirmed the judgment on direct appeal and denied appellant's petition for writ of habeas corpus; and People v. Murphy (Aug. 24, 2016, F070891) (Murphy II), that affirmed the trial court's denial of his petition for resentencing pursuant to Proposition 36. The factual and procedural backgrounds are taken from these records.
"On January 24, 1999, [T.A.] had been 'with [appellant] for five years' in a 'relationship.' At approximately 4:00 or 4:30 a.m. on January 24, 1999, [appellant] arrived at [T.A.'s] house and began pounding on the door. The couple had been together at a night club earlier that evening and [T.A.], who had driven herself and [appellant] to the club, drove home without him.
"Except as otherwise indicated, the factual statement is taken from [T.A.'s] trial testimony." (Murphy I, supra, F034165, p. 3, fn. 3.)
"[Appellant's] testimony suggested also that he lived in the house with [T.A.]." (Murphy I, supra, F034165, p. 3, fn. 4.)
"When [T.A.] let [appellant] in, [appellant] said,' "Bitch, why you left me at the club?" ['] and 'started punching' [T.A.] in the face and pulling her hair. At one point [appellant] 'picked [T.A.] up' and 'threw [her] out the [front] door[,]' into the yard, where he continued to punch and kick her. At some point after that, [appellant] dragged [T.A.] into the street. [T.A.] ran to a neighbor's house, where [appellant] caught her and dragged her back across the street. At some point, [T.A.] found herself back in her house, where [appellant] continued to beat her. At that point, [T.A.] 'blanked out.'
"Dr. Heather Hamilton, an emergency room physician at University Medical Center, testified to the following. She treated [T.A.] on the morning of January 24, 1999. [T.A.] 'was in a lot of pain[,] ... especially any time she moved or was touched.... [¶] There were areas where her braids had actually been pulled out of her head ..' [T.A.] had bumps on her head and swelling in her scalp. Her right eye was swollen and bruised and 'she had a cut through the top part of her ear.. Her ear was torn . all the way down through the cartilage.' Her lip was bruised and she had abrasions on both arms and both breasts. Her left arm was swollen and tender. She had no fractures, and her neck and spine were not hurting at the time of the examination. She complained of a 'very severe headache' and dizziness.
"[Appellant] testified to the following. He and [T.A.] 'got into a fight' in which '[they] were both throwing blows at each other.' [T.A.] came 'charging at' [appellant], and he, in order to defend himself, 'started fighting back at her.' The fight lasted about 10 minutes. The fight ended when [appellant] 'pushed [T.A.] out of the house to get her away from [him].' [Appellant] went outside and brought [T.A.] back into the house, where he 'proceeded to get a towel, start washing her face because she had some bleeding ....'" (Murphy I, supra, F034165, at pp. 3-4.)
PROCEDURAL BACKGROUND
On August 30, 1999, appellant was convicted after a jury trial of count 1, assault by means of force likely to produce great bodily injury on T.A. (§ 245, subd. (a)(1)), and the jury found true the special allegation that he inflicted great bodily injury on the victim under circumstances involving domestic violence (§ 12022.7, subd. (d)).
The trial court found he had two prior serious felony conviction enhancements (§ 667, subd. (a)) and two prior strike convictions, based on his convictions for (1) robbery (§ 211) in 1982, and (2) battery with infliction of serious bodily injury (§ 243, subd. (d)) in 1988; and a prior prison term enhancement (§ 667.5, subd. (b)) based on his battery conviction. (Murphy I, supra, F034165, at pp. 8-9.)
Request to Dismiss the Prior Strike Convictions
On September 30, 1999, the trial court conducted a hearing on appellant's request to dismiss the prior strike convictions. Appellant's counsel argued the prior conviction for robbery should be dismissed because it was not a strike since he was committed to the California Youth Authority (CYA) for that offense. Counsel also argued the prior battery conviction should be dismissed because it was not defined as a serious felony when he was convicted of that offense in 1988.
The district attorney opposed dismissal of any of appellant's prior convictions because he was "extremely violent, not only to women, not only to children, but it appears to strangers as well" based on his prior record, he had numerous prior opportunities and been placed on probation, and he continued to reoffend.
The district attorney explained that when appellant was convicted of robbery in 1982, he was an adult "but they gave him a break and allowed him to serve his time in the CYA instead of [the Department of Corrections and Rehabilitation (CDCR)] after that robbery conviction," even though he already had two prior convictions at that time. In 1988, he was convicted of battery with serious bodily injury, placed on probation, committed additional offenses, and probation was revoked and he was sent to prison. The district attorney further stated the trial court could not impose the prior prison term enhancement because it was based on appellant's conviction for battery, which was also alleged as a prior serious felony enhancement.
The Trial Court's Denial of the Request
The trial court stated it considered dismissing one of appellant's prior strike convictions, but denied the request based on his lengthy record of prior convictions and inflicting violence on women and children.
Sentencing
On the same day, the trial court sentenced appellant to the third strike term of 25 years to life for count 1; and an aggregate determinate term of 14 years, based on four years for the great bodily injury enhancement (§ 12022.7, subd. (d)), and two consecutive terms of five years for the two prior serious felony enhancements (§ 667, subd. (a)); it did not impose the section 667.5, subdivision (b) enhancement. The court clarified that appellant would first serve the determinate term followed by the consecutive indeterminate term.
Direct Appeal
On October 17, 2000, this court filed the nonpublished opinion in appellant's direct appeal and affirmed the judgment. We rejected appellant's numerous contentions, including the argument that his trial counsel was ineffective for failing to object to one of the prior strike convictions. (Murphy I, supra, F034165, at p. 7.)
"One of [appellant's] strikes was a 1982 conviction for robbery, an offense that is always a serious felony [citation] and, under some circumstances a violent felony [citations]. However, [appellant] argues, because his 1982 robbery conviction predated the enactment of both the 'serious felony' and 'violent felony' enhancement laws[,] it did not qualify as a strike, and his counsel was ineffective for failing to move to strike the strike allegation based on that conviction.
"The major premise of [appellant's] argument concerns the 'determination clause' of the three strikes law, which is found in both the initiative and original statutory versions of the law in nearly identical language: 'The determination of whether a prior conviction is a prior felony conviction for purposes of [the three strikes law] shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor....' [Citations.] Based on this language, [appellant] contends the three strikes law applies only to convictions that, when suffered, qualified as serious or violent felonies.
"This court rejected this basic argument in Gonzales v. Superior Court (1995) 37 Cal.App.4th 1302. 'The "determination clause" requires the ultimate sentencing court to determine whether, as of the date of a prior conviction, a prior conviction was a felony or misdemeanor. It does not require a contemporaneous determination, when the prior conviction occurred, that the conviction constituted a "strike" or a "serious felony" or "violent felony." This being the case, the three strikes law does apply to felony convictions predating [the law's effective date] which fit the definition of "serious felony" or "violent felony" on the relevant date. The Three Strikes law also applies to felony convictions which were neither "serious" nor "violent" felonies at the time of conviction, but which again fit the definition of "serious felony" or "violent felony" on the relevant date [June 30, 1993].' [Citations.] Thus, [appellant's] 1982 conviction, although it predated the enactment of the 'serious felony' and 'violent felony' enhancement statutes, was a strike. Any motion to strike that strike on the basis urged by [appellant] would have been futile. Therefore, [appellant] has not demonstrated that his counsel was ineffective." (Murphy I, supra, F034165, at pp. 7-9, fn. omitted.)
APPELLANT'S POSTJUDGMENT PETITIONS
Appellant has filed several postjudgment petitions. The following are relevant to this appeal.
Appellant's 2014 Petition for Resentencing
"On November 3, 2014, [appellant], acting in [propria persona], filed a petition for resentencing pursuant to Proposition 36. He explained that he had been sentenced to 39 years to life under the Three Strikes law when he was convicted of violating former section 245, subdivision (a)(1) with great bodily injury. He argued that his 1982 second degree robbery conviction (§ 211) could not be used as a strike because it was neither a serious nor a violent felony, and he was honorably discharged from the [CYA] on June 23, 1986. He explained that his commitment to the [CYA] was not a 'prison term' within the meaning of section 667.5 and could not be used to enhance his sentence." (Murphy II, supra, F070891, at p. 2.)
"On November 20, 2014, the trial court summarily denied [appellant's] petition for resentencing. The court explained that in 1982 [appellant] was convicted [of robbery] as an adult, even though he was committed to the [CYA] instead of state prison. The court also explained that [appellant's third strike] sentence was imposed based on his conviction for assault by means of force likely to produce great bodily injury (former § 245, subd. (a)(1)), with a true finding that he had inflicted great bodily injury on the victim [citation]. That finding made his offense a serious and violent felony conviction [citations]. In addition, the court had found that [appellant] had suffered two prior strike convictions." (Murphy II, supra, F070891, at pp. 2-3.)
Appellant filed an appeal from the trial court's denial of his petition for resentencing. Appellate counsel filed a brief pursuant to Wende. Appellant, acting in propria persona, filed a letter brief and asserted appellate counsel was ineffective for failing to argue that he was eligible for resentencing under Proposition 36 and section 1170.126. (Murphy II, supra, F070891, at p. 2.)
On August 24, 2016, this court filed the nonpublished opinion in Murphy II that affirmed the trial court's denial of appellant's petition and rejected his resentencing arguments. "In the current case, the trial court did not err when it summarily denied [appellant's] petition. Section 1170.126, added by Proposition 36, allows an eligible inmate who is currently serving a 25-year-to-life sentence under the former Three Strikes law to petition the court for resentencing. An inmate is eligible to petition if his sentence would not have been a 25-year-to-life sentence had he been sentenced under the reformed Three Strikes law-in other words, if he is a third strike offender who is serving an indeterminate life sentence for a crime that was not a serious or violent felony. (§ 1170.126, subds. (a), (b); Teal v. Superior Court (2014) 60 Cal.4th 595, 598.) As the trial court explained, [appellant's] current felony was both serious and violent. Accordingly, he was not eligible for resentencing under Proposition 36." (Murphy II, supra, F070891, at p. 3.)
Appellant's 2022 Motion for Resentencing
The instant appeal is from appellant's motion, filed in propria persona, with the trial court on May 12, 2022, to "Vacate Unauthorized Illegally Imposed Sentence."
Appellant argued his third strike term must be dismissed and he should be resentenced because his prior convictions were not strikes. He argued his conviction for battery with serious bodily injury (§ 243, subd. (d)) was not a serious or violent felony when he was convicted in 1988. He again argued his conviction for robbery in 1982 did not qualify as a strike since he was committed to the CYA for the offense, and as he had previously argued, "that the CYA prior was insufficient as a matter of law."
Appellant also argued his prior serious felony conviction enhancements must be stricken as a result of the enactment of Senate Bill No. 483 (2021-2022 Reg. Sess.; Senate Bill 483). Appellant further asserted the trial court improperly imposed a term for the great bodily injury enhancement as to count 1, assault with force likely to produce great bodily injury, because it constituted double punishment in violation of section 654. Appellant argued his prior attorney was prejudicially ineffective for filing a Wende brief in his prior appeals and failing to raise these issues.
Finally, appellant asserted his sentence was illegal and unauthorized, and he should be resentenced under Senate Bill No. 1393 (2017-2018 Reg. Sess.; Senate Bill 1393), Senate Bill 483, Senate Bill No. 81 (2021-2022 Reg. Sess.; Senate Bill 81), Assembly Bill No. 124 (2021-2022 Reg. Sess.; Assembly Bill 124), and Assembly Bill No. 1540 (2021-2022 Reg. Sess.; Assembly Bill 1540). Appellant listed these legislative enactments and statutes without discussion or analysis.
The Trial Court's Denial
On February 15, 2023, the trial court filed an order summarily denying appellant's motion without comment. The order states appellant was notified by mail on or about July 13, 2023.
Appellant's 2023 Petition
The instant appeal is also based on appellant's petition, filed in propria persona, with the trial court on May 11, 2023, for "Recall of Sentence." Appellant asserted his third strike sentence was invalid because he was eligible for resentencing based on the following legislative enactments and statutes: sections 1385, 1170, 1170.1, 1171.1; Assembly Bill 124, Assembly Bill No. 1509 (2021-2022 Reg. Sess.; Assembly Bill 1509), Assembly Bill 1540, and Senate Bill No. 567 (2021-2022 Reg. Sess.; Senate Bill 567). Appellant again listed these legislative enactments and statutes without discussion or analysis.
On August 2, 2023, the trial court filed an order that summarily denied the petition without comment.
APPELLATE ORDERS AND BRIEFING
Notices of Appeal
On August 28, 2023, appellant, in propria persona, filed a notice of appeal from the trial court's denial on February 15, 2023, of his "Motion to Vacate Unauthorized Illegally Imposed Sentence." Appellant attached the court's orders of February 15, 2023, and August 2, 2023, that denied his 2022 motion and 2023 petition for resentencing.
On October 4, 2023, appellant filed another notice of appeal, but this time from the trial court's denial of his "Petition for Recall of Sentence" on "8-8-2023." In doing so, he attached the court's order of August 2, 2023, denying his 2022 motion.
Briefing Orders
On October 25, 2023, prior to the appointment of appellate counsel, this court ordered the parties to brief whether the appeal was taken from a nonappealable order. "Although appellant cites multiple statutory enactments, the matter appears to be taken from the denial of a motion for resentencing under [Senate Bill 1393] from appellant's sentence imposed in 1999. Effective January 1, 2019, [Senate Bill 1393] provided new authority for a sentencing court to exercise discretion in the 'interests of justice' to strike a five-year enhancement for each prior serious felony conviction. (Pen. Code, §§ 667, subd. (a)[,] 1385, subd. (b).) Nothing in [Senate Bill 1393] authorizes the trial court, however, to resentence a defendant from a conviction already final at the time the law took effect."
In response, appellant, acting in propria persona, filed a letter brief and asserted his petition was not brought pursuant to Senate Bill 1393, and instead he was seeking review of the trial court's denial of his "Petition for Re-call" filed pursuant to "AB 1509," "Senate Bill 483," and section 1171.1 (renumbered as § 1172.75). Appellant further argued that under section 1172.75, he was entitled to be resentenced on enhancements and any other changes in the law, including those enacted by "Senate Bill 1393."
Appellant stated he had two appeals pending before this court from the trial court's denials of his two separate motions/petitions for resentencing, and asked this court "to sort this matter out."
On March 1, 2024, this court filed an order that we would "allow the matter to proceed to appointment of counsel, but the parties may address whether jurisdiction is proper before this court in further briefing."
Thereafter, on May 30, 2024, appellate counsel filed a brief with this court pursuant to Delgadillo, which summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record; counsel did not address jurisdiction.
Also on May 30, 2024, this court sent an order to appellant inviting a letter brief. Appellant did not respond.
DISCUSSION
Assuming without deciding this court has jurisdiction over appellant's two appeals, we find the trial court properly denied appellant's motion and petition for resentencing that were filed, respectively, in 2022 and 2023.
Appellant's challenges to his two prior felony convictions, and whether they constitute strikes, have previously been rejected and are not cognizable in this appeal. (See Murphy I, supra, F034165, at pp. 7-8; Murphy II, supra, F070891, at p. 3.)
In both his 2022 and 2023 requests for resentencing, appellant argued, without analysis, that his third strike sentence was now invalid and he should be resentenced, based on Senate Bill Nos. 1393, 483, 81, and 567; Assembly Bill Nos. 124, 1540, and 1509; and sections 1385, 1170, 1170.1, and 1171.1.
Appellant simply listed these legislative enactments and statutes without analysis or discussion. None of these provisions are applicable herein since appellant was sentenced in 1999, the judgment has long been final, his sentence was not recalled, and he is not otherwise eligible for resentencing.
Senate Bill 1393's amendments to sections 667 and 1385 apply retroactively to all cases that were not final when they became effective on January 1, 2019, or the sentence was otherwise vacated or recalled. (People v. Jones (2019) 32 Cal.App.5th 267, 272; People v. Monroe (2022) 85 Cal.App.5th 393, 401.) Senate Bill 483's amendments to sections 1171.1 and 1172.75 are not applicable herein because appellant's sentence was not recalled, and he was not sentenced on the section 667.5, subdivision (b) enhancement. (People v. Burgess (2022) 86 Cal.App.5th 375, 379-380; People v. Cota (2023) 97 Cal.App.5th 318, 330.) Senate Bill 81's amendments to section 1385 apply to sentencings that occurred after January 1, 2022, and his sentence was not otherwise recalled. (People v Sek (2022) 74 Cal.App.5th 657, 674.) The amendments to section 1170 enacted by Senate Bill 567 and Assembly Bill 124, as to imposition of determinate sentences, are not applicable to appellant's third strike indeterminate term. (People v. Fox (2023) 90 Cal.App.5th 826, 830-831.) Assembly Bill 1540's amendments to section 1170.03 addressed recall and resentencing procedures initiated by the CDCR, which did not occur in this case. (People v. McMurray (2022) 76 Cal.App.5th 1035, 1040-1041.) Finally, Assembly Bill 1509 addresses the elimination or reduction of sentences imposed for firearm enhancements, and has not been enacted into law. (Assem. Bill 1509, died in Assem. Appropriations Com., Jan. 31, 2022, Assem. Bill Status (2021-2022 Reg. Sess.) at <https://leginfo.legislature.ca.gov/faces/billStatusClient.xhtml?bill_id=202120220AB150 9> [as of October 23, 2024], archived at: <https://perma.cc/7T7L-RVH2>.)
DISPOSITION
The trial court's orders of February 15, 2023, and August 2, 2023, denying appellant's motion and petition for resentencing, are affirmed.
[*] Before Hill, P. J., Levy, J. and Franson, J.