People v. McMurry CA5

Filed 2/3/16 P. v. McMurry CA5 Opn. following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F069303 Plaintiff and Respondent, (Super. Ct. Nos. 13CM3310 & v. 13CM3765)

JEREMY DALE McMURRY, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Poochigian, J. and Smith, J.

Pursuant to a plea agreement, Jeremy Dale McMurry pled guilty to five counts of child molestation and was sentenced to a term of 105 years to life in prison. In addition to the prison term, the trial court ordered that if McMurry is released on parole, then he will have to undergo treatment with medroxyprogesterone acetate pursuant to the provisions of Penal Code section 645, subdivision (a).1 This treatment is sometimes referred to as hormone suppression therapy or chemical castration. We will refer to the treatment as hormone suppression therapy throughout this opinion. The trial court also issued an order pursuant to section 1202.05 prohibiting visitation between McMurry and D.C., one of the children alleged to be a victim in the action. McMurry makes two arguments in this appeal, both of which the People concede are meritorious. First, McMurry argues that hormone suppression therapy was not part of the agreement that he entered into with the prosecutor and, therefore, the trial court changed the terms of the plea agreement when imposing this condition. He argues the matter must be remanded to the trial court to allow the trial court to remove the condition from the sentence, or, if it refuses to do so, to allow McMurry to either withdraw his guilty plea or accept the modification to the agreement. The People agree the trial court changed the plea agreement, and that we must remand the matter to the trial court to resolve the issue. Second, McMurry argues the trial court erred when it issued an order prohibiting visitation between himself and one of the named victims, D.C. McMurry argues that section 1202.05, the section on which the trial court relied, is inapplicable in this case. The People concede the trial court erred. As described below, we will reverse and remand the matter to allow the trial court to resolve the hormone suppression therapy issue. We are also compelled to strike the section 1202.05 order that prohibited visitation between McMurry and D.C.