People v. McCurry CA5

California Court of Appeal Jun 28, 2021 No. F080650Unpublished

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Holding. The court held that the trial court did not abuse its discretion in denying the defendant's motion to dismiss a prior serious felony conviction enhancement, and that the defendant's claims regarding his underlying conviction were waived because they could have been raised in his prior appeal.

Issues

Whether the trial court abused its discretion in denying the motion to dismiss the prior serious felony conviction enhancement.
Whether the defendant's claims regarding his underlying conviction are barred because they could have been raised in a prior appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The court did not abuse its discretion.”

“[W]here a criminal defendant could have raised an issue in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay.”

Filed 6/28/21 P. v. McCurry 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F080650 Plaintiff and Respondent, (Stanislaus Super. Ct. No. 4001581) v.

SCOTT ALEN MCCURRY, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. Steffen, Judge. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Franson, Acting P.J., Meehan, J. and Snauffer, J.

INTRODUCTION Appellant and defendant Scott Alen McCurry has filed this appeal from the trial court’s decision on remand that it would not dismiss the five-year term imposed for a prior serious felony conviction enhancement (Pen. Code, § 667, subd. (a)).1 On appeal, his appellate counsel has filed a brief that summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant has filed letter briefs. We affirm. FACTUAL AND PROCEDURAL BACKGROUND2 Conviction and sentence On August 25, 2017, defendant was convicted after a jury trial of two felonies: count 5, torture (§ 206), and count 6, corporal injury to a spouse/cohabitant (§ 273.5, subd. (a)). As to both counts, it was found true that he had a prior serious felony conviction enhancement (§ 667, subd. (a)) and a prior strike conviction; a great bodily injury enhancement was found true for count 6 (§ 12022.7). Defendant was also convicted of misdemeanor counts 1 and 4, battery (§ 242), and counts 2 and 3, assault (§ 240). On December 11, 2017, the trial court conducted the sentencing hearing. It granted defendant’s request to dismiss the prior strike conviction pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and found the remaining charges would be adequate to impose an appropriate sentence based on the facts and seriousness of the case. As to count 5, torture, the court sentenced defendant to life in prison with the possibility of parole, and stated that pursuant to section 3046, defendant must serve “a

People v. McCurry CA5

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