Filed 1/22/21 P. v. Murphy CA4/3
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G059289
v. (Super. Ct. No. 07NF2178)
CHARLES ANTHONY MURPHY, JR., OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Gary S. Paer, Judge. Affirmed.
Thomas E. Robertson, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *
Defendant Charles Anthony Murphy, Jr., appeals from the trial court’s
summary denial of his petition for resentencing (Petition) under Penal Code section
1170.95 (section 1170.95).
In 2012, a jury convicted defendant of two counts of murder in the first
degree and found true the special circumstance allegations of murder for financial gain,
multiple murder, and murder during the commission of kidnapping. The jury also
convicted him of attempted murder with premeditation and deliberation, and conspiracy
to commit murder. We affirmed the convictions on appeal. (People v. Murphy (Jan. 22,
2016, G049716) [nonpub. opn.] (Murphy 1)).
In 2019, defendant filed the Petition seeking resentencing on the murder
convictions. The trial court summarily denied the Petition on the grounds that Senate Bill
No. 1437 (Stats. 2018, ch. 1015, § 4, SB 1437), the legislation which added section
1170.95 to the Penal Code, is unconstitutional. We reversed and remanded the matter to
the trial court with directions to consider the Petition on the merits under section 1170.95.
(People v. Murphy (Mar. 19, 2020, G047553) [nonpub. opn.]).)
On remand, the trial court summarily denied the Petition on the grounds
that defendant is statutorily ineligible for relief under section 1170.95. Among other
things, the trial court noted the true finding on the murder for financial gain special
circumstance (Pen. Code, § 190.2, subd. (a)(1)) included an intent to kill.
We appointed counsel to represent defendant on appeal. Counsel filed a
brief summarizing the proceedings and facts of the case and advised the court he found
no arguable issues to assert on defendant’s behalf. (Anders v. California (1967) 386 U.S.
738; People v. Wende (1979) 25 Cal.3d 436.) Counsel and this court notified defendant
he could file a supplemental brief on his own behalf. However, we received no
supplemental brief from him and the time to file one has passed.
To assist us in our review, counsel suggested we consider whether the trial
court erred by conducting the hearing on the Petition in his absence.
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DISCUSSION
We have independently reviewed the entire record as required under Anders
v. California, supra, 386 U.S. 738 and People v. Wende, supra, 25 Cal.3d 436, and have
found no arguable issues on appeal. Therefore, we affirm the postjudgment order.
Relief under section 1170.95 is available only to those “‘convicted of
felony murder or murder under a natural and probable consequence theory . . . .’”
(People v. Martinez (2019) 31 Cal.App.5th 719, 723.) In People v. Lewis (2020) 43
Cal.App.5th 1128, 1137, review granted March 18, 2020, S260598, the court held (1) a
trial court may rely on the record of conviction in determining whether the defendant’s
petition makes a prima facie showing for relief under section 1170.95, and (2) the record
of conviction includes the opinion of the Court of Appeal in the underlying conviction.
Our opinion in Murphy 1, supra, G049716, recites a lengthy description of
the evidence presented to the jury upon which it found beyond a reasonable doubt that
defendant and his codefendants Iftekhar Murtaza and Vitaliy Krasnoperov murdered
Jayprakash and Karishima Dhanak for financial gain. Plus, it is undisputed (1) the jury’s
financial gain special circumstance true findings required findings that the murders were
intentional (Pen. Code §§ 190.2, subd. (a)(1), 190.4, subd. (a)), and (2) defendant was not
convicted of felony murder or murder under a natural and probable consequence theory.
Accordingly, we conclude the trial court correctly determined, based on the
record of conviction in this case, defendant was not eligible for relief under section
1170.95 as a matter of law. It follows the trial court did not err by summarily denying the
Petition in defendant’s absence and over his objection, or without first issuing an order to
show cause or holding an evidentiary hearing. (People v. Verdugo (2020) 44 Cal.App.5th
320, 330, review granted Mar. 18, 2020, S260493.)
In sum, counsel’s assessment there were no arguable issues to raise on
appeal was manifestly correct. And nothing revealed by our own independent review of
the record suggests otherwise.
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DISPOSITION
The postjudgment order is affirmed.
THOMPSON, J.
WE CONCUR:
ARONSON, ACTING P. J.
IKOLA, J.
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