People v. Murray CA3

Filed 12/16/22 P. v. Murray CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C096302

Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE-2012-0010153, v. SF122358A)

DANIEL LEWIS MURRAY,

Defendant and Appellant.

In 2013, a trial court sentenced defendant Daniel Lewis Murray to an indeterminate term of 65 years to life in prison, a sentence that included three five-year terms for prior serious felony convictions under Penal Code section 667, subdivision (a). 1 In 2021, the Department of Corrections and Rehabilitation (CDCR) recommended the trial court recall the sentence and resentence defendant, but the trial court declined the

1 Undesignated statutory references are to the Penal Code.

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invitation. On appeal, defendant argues the trial court erred because it applied the wrong legal standard and asks us to remand the case and direct that it be assigned to a different judge. We will reverse and remand the matter for reconsideration, but conclude reassignment is unnecessary. FACTUAL AND PROCEDURAL BACKGROUND In 2013, a jury found defendant guilty of first degree burglary (§ 459), making a criminal threat (§ 422), and receiving stolen property. (§ 496, subd. (a).) The trial court sentenced defendant to a term of 65 years to life in prison, which included a 25-year-to- life term for the burglary count, a 25-year-to-life term for the criminal threat count, and three five-year terms for prior serious felony convictions under section 667, subdivision (a). The court imposed, then stayed, a 25-year-to-life sentence on the receiving stolen property count. On appeal, we ordered two separate prior serious felony conviction enhancements stricken, which did not change the sentence. (People v. Murray (Apr. 28, 2015, C074990) [nonpub. opn.].) In December 2021, the CDCR sent a recommendation to the trial court that it resentence defendant under former section 1170, subdivision (d)(1).2 In particular, the CDCR noted that, effective January 1, 2019, courts were authorized to use their discretion to strike prior serious felony enhancements under section 1385. Defendant filed a motion joining the recommendation. The trial court denied the request to recall and resentence defendant in a hearing on May 23, 2022. The court explained defendant had a large number of prior convictions, stating: “[Defendant] has 21 prior first degree residential burglaries. The