People v. Murphy CA2/1 ( 2021 )

Filed 1/25/21 P. v. Murphy CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B304212
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA099808)
v.
MARTELL LATROY MURPHY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Lauren Weis Birnstein, Judge. Affirmed.
Glenn L. Savard, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
____________________________
Defendant Martell Latroy Murphy appeals from the
judgment of conviction. Defendant’s appointed counsel filed a
brief pursuant to People v. Wende (1979) 25 Cal.3d 436,
identifying no issues and requesting that this court review the
record and determine whether any arguable issue exists on
appeal. We have reviewed the record, conclude the record reveals
no arguable issue on appeal, and thus affirm.
PROCEDURAL BACKGROUND
By information filed June 26, 2019, the People charged
defendant with two counts of second degree robbery. (Pen. Code,1
§ 211.) The People alleged that with respect to each robbery,
defendant personally used a firearm within the meaning of
section 12022.53, subdivision (b). The People alleged that both
robberies were serious felonies. The People alleged defendant
suffered two serious and/or violent offenses within the meaning of
the “Three Strikes” law (§§ 667, subd. (d) & 1170.12, subd. (b)).
The People alleged two prior serious or violent felonies within the
meaning of section 667, subdivision (a)(1).2 The People also
1 All statutory citations are to the Penal Code.
2 Section 667, subdivision (a)(1) provides: “Any person
convicted of a serious felony who previously has been convicted of
a serious felony in this state or of any offense committed in
another jurisdiction which includes all of the elements of any
serious felony, shall receive, in addition to the sentence imposed
by the court for the present offense, a five-year enhancement for
each such prior conviction on charges brought and tried
separately. The terms of the present offense and each
enhancement shall run consecutively.” “Senate Bill No. 1393
(2017–2018 Reg. Sess.) amended section 667 to give trial courts
discretion to strike five-year sentencing enhancements based on
2
alleged three prior felonies for which defendant did not remain
free from prison custody for a five year period (§ 667.5,
subd. (b)).3
Prior to trial, the trial court granted the People’s motion to
dismiss one count of robbery in furtherance of justice.
Jurors found defendant guilty of one count of second degree
robbery and further found that defendant personally used a
firearm within the meaning of section 12022.53, subdivision (b).
Defendant waived his right to a jury trial on the priors.
The court concluded that defendant suffered two prior serious
and/or violent felonies and that the offenses also fell within the
ambit of section 667, subdivision (a)(1). The court concluded that
the People did not prove that defendant suffered a prior offense
for which he did not remain free from prison custody for five
prior serious felony convictions.” (People v. Taylor (2020)
43 Cal.App.5th 1102, 1113.)
3 Section 667.5, subdivision (b) provides: [W]ith an
exception not relevant here, “where the new offense is any felony
for which a prison sentence or a sentence of imprisonment in a
county jail under subdivision (h) of Section 1170 is imposed or is
not suspended, in addition and consecutive to any other sentence
therefor, the court shall impose a one-year term for each prior
separate prison term for a sexually violent offense as defined in
subdivision (b) of Section 6600 of the Welfare and Institutions
Code, provided that no additional term shall be imposed under
this subdivision for any prison term served prior to a period of
five years in which the defendant remained free of both the
commission of an offense which results in a felony conviction, and
prison custody or the imposition of a term of jail custody imposed
under subdivision (h) of Section 1170 or any felony sentence that
is not suspended.”
3
years (§ 667.5, subd. (b)).4 The trial court exercised its discretion
to strike both section 667, subdivision (a)(1) enhancements. The
trial court granted defendant’s oral Romero5 motion and
sentenced defendant as a second-strike offender rather than a
third-strike offender.
The court ordered defendant to serve a 20-year determinate
prison term, consisting of a five-year robbery sentence doubled
pursuant to the Three Strikes law and a 10-year enhancement
pursuant to section 12022.53, subdivision (b). The court
sentenced defendant to the high term for robbery because he was
unsuccessful on parole. The court ordered defendant pay
$8,494.10 in restitution to the victim. Defendant timely appealed
from the judgment of conviction.
FACTUAL BACKGROUND
On December 10, 2018, defendant and his confederate
entered Baby Doll Luxury Hair, a store that sold hair extensions.
Defendant was holding a gun. Both defendant and his
confederate ordered the store clerk to open the cash register.
Defendant took cash from the cash register. Defendant’s
confederate took merchandise from the store. The store clerk
identified defendant at trial as the person holding the gun. She
4Although appellate counsel states the trial court found
true that defendant “suffered a prior prison term,” the record
indicates that the court found the section 667.5, subdivision (b)
enhancements not true. The abstract of judgment confirms that
the trial court did not add a one-year enhancement pursuant to
section 667.5, subdivision (b).
5 (People v. Superior Court (Romero) (1996) 13 Cal.4th
497.)
4
heard defendant tell a handyman “something like, ‘Don’t be a
hero.’ . . . ” The store clerk also identified defendant in a six pack
photographic lineup prior to trial.
Detective Shaun Kemp received an anonymous tip
identifying defendant as one of the robbery perpetrators. Kemp
subpoenaed records from an Instagram account that he believed
belonged to defendant. Messages in the account referred to
defendant’s name, and the account included pictures of
defendant. One message on the Instagram account read “I got
hair. . . . But keep it on the low.” That message was posted the
day after the robbery at Baby Doll Luxury Hair. A few days
later, another message on the Instagram account read “I got some
hair.” The same Instagram account had an advertisement for
hair extensions using the unique description that the owner of
Baby Doll Luxury Hair used.
DISCUSSION
Defendant’s counsel filed a brief pursuant to People v.
Wende, supra, 25 Cal.3d 436 identifying no issue. This court
advised defendant of the opportunity to file a supplemental brief.
He filed none.
We have reviewed the record and find no arguable issue.
Appointed counsel has fully complied with counsel’s
responsibilities. (People v. Kelly (2006) 40 Cal.4th 106, 126;
People v. Wende, supra, 25 Cal.3d at pp. 441–442.)
5
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
6