People v. McMurray CA2/3

Filed 6/28/21 P. v. McMurray CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B310560

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA197533) v.

ROSCOE MCMURRAY,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court of Los Angeles County, Curtis B. Rappé, Judge. Affirmed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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Roscoe McMurray appeals from a postjudgment order denying his motion for resentencing. His appellate counsel filed a brief asking this court to proceed under People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). In 2000, McMurray was convicted of three counts of robbery (Pen. Code,1 § 211) and one count of felon in possession of a firearm (former § 12021, subd. (a)(1)). The jury found true a firearm enhancement (§ 12022.53, subd. (b)), and the trial court found that he had two prior serious convictions within the meaning of the Three Strikes law. The trial court sentenced McMurray to three consecutive 25-years-to-life terms plus a determinate term of 13 years 4 months. Another panel of this Division affirmed the judgment. (People v. McMurray (Jan. 25, 2002, B146894) [nonpub. opn.].) Thereafter, section 1016.8 became effective January 1, 2020. (Stats. 2019, ch. 586, § 1, pp. 1–2.) The section provides that a plea bargain requiring a defendant to generally waive future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may retroactively apply after the date of the plea is not knowing and intelligent and is void as against public policy. (§ 1016.8, subds. (a)(4), (b).) McMurray filed a motion under that section, arguing that the trial court could not use his prior convictions that resulted from plea bargains as strikes because he entered into those pleas before the Three Strikes law was enacted. McMurray attached to his motion a barely legible abstract of judgment dated 1988 showing that he was convicted of five counts of robbery pursuant