People v. McCurry CA3

Filed 12/11/24 P. v. McCurry CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C100555

Plaintiff and Respondent, (Super. Ct. No. 96F04284)

v.

STEVEN MCCURRY,

Defendant and Appellant.

Defendant Steven McCurry appeals from a resentencing order made under Penal Code1 section 1172.75. Defendant had moved for dismissal of a prior strike and various enhancements included in his aggregate 84-year prison sentence. At resentencing, the trial court struck multiple prior prison term enhancements made invalid by amendments

1 Undesignated statutory references are to the Penal Code.

1

to section 667.5, subdivision (b), as well as a prior serious felony enhancement. The court declined to strike the prior strike and the deadly weapon use enhancements. On appeal, defendant contends that dismissal of the deadly weapon use enhancements was mandatory pursuant to section 1385, subdivision (c)(2)(B) and (C). We order the trial court to issue a corrected abstract of judgment that complies with the oral pronouncement of judgment and otherwise affirm. FACTUAL AND PROCEDURAL BACKGROUND We rely on the probation report in summarizing the facts. In May 1996, defendant repeatedly raped, assaulted, and beat the 22-year-old victim inside of her apartment. The victim had just given birth three weeks earlier, and defendant assaulted the victim in the presence of the baby and the victim’s two-year-old twins. He repeatedly threatened to kill her, and he held a knife to her throat and her genitals. He also threatened to kill her baby and her fiancé. He attempted to sodomize her and forced her to orally copulate him. He also slammed her into a wall and slapped her. In 1997, a jury found defendant guilty of three counts of rape (counts four through six) and two counts of oral copulation with force (counts eight & nine). As to each count, the jury found true defendant personally used a deadly weapon. In bifurcated proceedings, the trial court found true that defendant had a prior serious felony, a prior strike, and three prior prison terms. The trial court sentenced defendant to prison for an aggregate term of 84 years, as follows: 12 years consecutive on each of the five counts, three years (the low term) each consecutive on two of the deadly weapon use enhancements, four years (the middle term) each consecutive on the remaining three deadly weapon use enhancements, five years for the prior serious felony enhancement, and one year for one of the prior prison term enhancements (the other two were stayed).