People v. Murphy CA5

Filed 8/24/16 P. v. Murphy CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F070891 Plaintiff and Respondent, (Super. Ct. No. F99627147-2) v.

ANDRE LAMONT MURPHY, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

* Before Poochigian, Acting P.J., Detjen, J. and Peña, J.

Appointed counsel for defendant Andre Lamont Murphy asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case. Defendant was advised of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. He responded with a letter, contending appointed counsel was ineffective for failing to raise on appeal the issue of resentencing pursuant to Proposition 36 (Pen. Code, § 1170.126).1 Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) On November 3, 2014, defendant, acting in pro. per., 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 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 Youth Authority on June 23, 1986. He explained that his commitment to the Youth Authority was not a “prison term” within the meaning of section 667.5 and could not be used to enhance his sentence. On November 20, 2014, the trial court summarily denied defendant’s petition for resentencing. The court explained that in 1982 defendant was convicted as an adult, even though he was committed to the Youth Authority instead of state prison. The court also explained that defendant’s sentence was imposed based on his conviction for assault by