People v. Murphy CA1/2

Filed 2/5/25 P. v. Murphy CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A170248 v. DAVID MURPHY, (Alameda County Super. Ct. No. 154341) Defendant and Appellant.

David Murphy appeals from postjudgment orders relating to his petitions for resentencing pursuant to Penal Code sections 1172.1 and 1172.75.1 The People agree that the amended abstracts of judgment and related minute order should be corrected and that the trial court should recalculate Murphy’s actual custody credits as of the date of resentencing. We accept the People’s concession and remand the matter with instructions to the trial court. BACKGROUND In August 2006, Murphy entered a barbershop, drank tequila with a barber, and asked for the phone number of Quincy Carr’s girlfriend. After Carr and his girlfriend refused, Murphy left, only to return 10 or 15 minutes

1 Further undesignated statutory references are to the Penal Code.

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later with a gun. Carr attempted to flee, but Murphy followed and shot Carr five times, leaving him paralyzed. By information filed January 1, 2007, the People charged Murphy with attempted premediated murder (§§ 187, subd. (a); 664, subd. (a); count 1), aggravated mayhem (§ 205; count 2), and possession of a firearm by a felon (former § 12021, subd. (a)(1); count 3). The first two counts alleged the personal discharge of a firearm and the infliction of great bodily injury (§§ 12022.7, subds. (a) & (b); 12022.53, subds. (b)–(d); 12022.5, subd. (a)). The information also alleged two prior convictions and two prior prison term enhancements (§ 667.5, subd. (b)). A jury found Murphy guilty of attempted premediated murder, the lesser included offense of simple felony mayhem rather than aggravated (§ 203), and possession of a firearm by a felon. The jury also found true the firearm and great bodily injury special allegations, after which the trial court found true the prior prison term special allegations. In November 2007, Murphy was sentenced to a term of life with the possibility of parole for the attempted premediated murder conviction and a consecutive term of 25 years to life for the use of a firearm causing great bodily injury (§ 12022.53, subd. (d)). The court imposed upper term sentences for the mayhem and unlawful gun possession convictions of eight years and three years, respectively, and imposed two one-year enhancements (§ 667.5, subd. (b)) to both the indeterminate and determinate sentences. Murphy appealed, and this court affirmed the judgment with directions to the trial court to amend the determinate abstract of judgment to stay the sentences for mayhem and unlawful firearm possession and to impose the prior prison term enhancements to only the indeterminate portion of