Opinion
2d Crim. No. B299863
02-05-2020
THE PEOPLE, Plaintiff and Respondent, v. TYRONE MURPHY, Defendant and Appellant.
Marta I Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Michael Katz, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SA088783)
(Los Angeles County)
Tyrone Murphy appeals following a remand for resentencing. Appellant was convicted of arson of another person's property (Pen. Code, § 451, subd. (d)) with true findings on allegations that he had prior strike and serious felony convictions (§§ 667, subds. (a)(1), (b) - (i), 1170.12, subds. (a) - (d)) and a prior arson conviction (§ 451.1, subds. (a)(1)). The court sentenced him to 13 years in state prison, consisting of the midterm of two years doubled for the strike prior, plus five years for the prior serious felony, plus four years for the prior arson conviction.
In appellant's prior appeal from the judgment, we rejected his claim that the trial court erred in denying his Romero motion and remanded for the court to exercise its discretion whether to dismiss the prior serious felony enhancement pursuant to amendments to section 667 that went into effect on January 1, 2019. (People v. Murphy (Dec. 17, 2018, B285970 [nonpub. opn.].)
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On remand, the court declined to dismiss the prior serious felony enhancement based upon its mistaken belief that it had granted appellant's Romero motion to account for his mental illness as a mitigating factor. Appellant contends, and the People concede, that this error requires another remand for resentencing. (See People v. Carmony (2004) 33 Cal.4th 367, 378 [recognizing that "an abuse of discretion occurs where the trial court . . . considered impermissible factors in declining to dismiss" a prior felony conviction allegation].)
While this appeal was pending, appellant also filed an in propria persona petition for writ of habeas corpus contending that his five-year prior serious felony enhancement must be dismissed as a matter of law. We deny the petition in a separate order filed this same date.
DISPOSITION
The matter is remanded for the trial court to exercise its discretion whether to dismiss appellant's prior serious felony enhancement pursuant to Penal Code sections 667, subdivision (a) and 1385, subdivision (b).
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P. J.
TANGEMAN, J.
Mark E. Windham, Judge
Superior Court County of Los Angeles
Marta I Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Michael Katz, Deputy Attorney General, for Plaintiff and Respondent.