Filed 6/28/21 P. v. McCurry CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080650
Plaintiff and Respondent,
(Stanislaus Super. Ct. No. 4001581)
v.
SCOTT ALEN MCCURRY, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T.
Steffen, Judge.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Franson, Acting P.J., Meehan, J. and Snauffer, J.
INTRODUCTION
Appellant and defendant Scott Alen McCurry has filed this appeal from the trial
court’s decision on remand that it would not dismiss the five-year term imposed for a
prior serious felony conviction enhancement (Pen. Code, § 667, subd. (a)).1 On appeal,
his appellate counsel has filed a brief that summarizes the facts with citations to the
record, raises no issues, and asks this court to independently review the record. (People
v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant has filed letter briefs. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
Conviction and sentence
On August 25, 2017, defendant was convicted after a jury trial of two felonies:
count 5, torture (§ 206), and count 6, corporal injury to a spouse/cohabitant (§ 273.5,
subd. (a)). As to both counts, it was found true that he had a prior serious felony
conviction enhancement (§ 667, subd. (a)) and a prior strike conviction; a great bodily
injury enhancement was found true for count 6 (§ 12022.7). Defendant was also
convicted of misdemeanor counts 1 and 4, battery (§ 242), and counts 2 and 3, assault
(§ 240).
On December 11, 2017, the trial court conducted the sentencing hearing. It
granted defendant’s request to dismiss the prior strike conviction pursuant to section 1385
and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and found the remaining
charges would be adequate to impose an appropriate sentence based on the facts and
seriousness of the case.
As to count 5, torture, the court sentenced defendant to life in prison with the
possibility of parole, and stated that pursuant to section 3046, defendant must serve “a
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2 Defendant has cited to this court’s nonpublished opinion in his first appeal for
his factual and procedural statement. Given this reliance, we take judicial notice of the
appellate record and this court’s nonpublished opinion in People v. McCurry (May 9,
2019, F076692) as modified on denial of rehearing (May 23, 2019).
2.
mandatory sentence of seven years.” In addition, the court imposed a consecutive five-
year term for the section 667, subdivision (a) prior serious felony conviction
enhancement, and stated defendant’s total sentence was 12 years to life.
As to count 6, the court imposed the midterm of three years, plus three years for
the great bodily injury enhancement and five years for the prior serious felony conviction
enhancement, with the sentence to run concurrent to count 5, and stayed the terms
imposed pursuant to section 654. As to the four misdemeanor counts, the court imposed
concurrent terms of 180 days.
On December 12, 2017, defendant filed a notice of appeal.
Defendant’s first appeal
In his first appeal, defendant, represented by counsel, argued the court imposed an
unauthorized sentence for count 5, torture, because it aggregated the minimum parole
ineligibility period of seven years with the life sentence and characterized it as the
minimum sentence. Defendant also argued the matter must be remanded because of the
subsequent enactment of Senate Bill No. 1393 (2017–2018 Reg. Sess.), which gave
discretion to the court to dismiss the section 667, subdivision (a) prior serious felony
conviction enhancement. (People v. McCurry, supra, F076692)
In May 2019, this court filed the nonpublished opinion in defendant’s appeal, and
held the trial court did not commit error when it described the minimum parole
ineligibility period of seven years as the minimum prison term and added the five-year
term for the prior serious felony enhancement to that seven-year minimum term, for a
total term of 12 years to life. (People v. McCurry, supra, F077792 at p. 4.) In an order
modifying the opinion filed on May 23, 2019, we agreed the matter should be remanded,
however, because section 667, subdivision (a) was amended after the sentencing hearing
to give the court discretion to determine whether to dismiss the consecutive term of five
years that it imposed for that enhancement. (See People v. McCurry, 2019 Cal.App.
Unpub. LEXIS 3593, May 23, 2019.)
3.
On July 23, 2019, remittitur was issued.
Defendant’s writ petition
On November 13, 2019, defendant filed, in pro. per., a petition for writ of habeas
corpus in the trial court and challenged the validity of his convictions for torture and
corporal injury based on judicial and evidentiary error, and ineffective assistance of
counsel.
On December 11, 2019, the trial court denied each issue in defendant’s petition in
a written opinion. First, defendant argued the great bodily injury enhancement was not
supported by substantial evidence. The court stated this issue could have been raised on
direct appeal, and the enhancement was supported by substantial evidence that defendant
forcibly inserted foreign objects into the victim’s body cavities and burned her with a
propane torch.
Second, defendant argued his rights pursuant to Miranda v. Arizona (1966) 384
U.S. 436, were violated because an officer continued to question him after he invoked his
right to counsel. The court again found he could have raised this issue on direct appeal,
and his Miranda argument was meritless because the record showed he did not make an
unequivocal request to either terminate the interview or for the assistance of an attorney.
Third, defendant argued his due process rights were violated because the
prosecutor referred to the complaining witness as the “victim.” The court again noted
defendant could have raised this issue on direct appeal. The court also stated that it
granted the defense motion in limine to exclude the use of the word “victim,” there was
only a single reference to the word during the multiday trial, the prosecutor used the word
once then immediately corrected to using her name, and this single reference was
harmless beyond a reasonable doubt.
Fourth, defendant argued the prosecution failed to give favorable evidence to the
defense. The court found defendant failed to identify such evidence or any factual basis
to support his petition on this ground.
4.
In his next two arguments, defendant argued his attorney was ineffective for
failing to object to the prosecutor’s use of the word “victim” and for committing other
unspecific errors. The court found defendant failed to state with specificity his attorney’s
alleged errors or how he was prejudiced by those errors. The court held that even if his
attorney was ineffective, his writ claims were meritless because he failed to show
prejudice.
Finally, defendant argued that each of these errors, taken together, proved his
attorney was ineffective. The court again held none of defendant’s assertions had merit
and, even if taken together, he failed to show counsel’s conduct fell below the standard
set forth in Strickland v. Washington (1984) 466 U.S. 668.
The court denied defendant’s petition and concluded he failed to set forth a prima
facie showing that he was entitled to relief.
Remand
On December 16, 2019, the trial court held the hearing on remand as to whether to
exercise its discretion to dismiss the section 667, subdivision (a) enhancement. Defense
counsel asked the court to dismiss the enhancement because it dismissed the prior strike
conviction at the first sentencing hearing, and defendant had demonstrated “exemplary
behavior” while in custody.
The trial court acknowledged that at the original sentencing hearing, it did not
have discretion to dismiss the prior serious felony conviction enhancement, and the law
had since been changed. The court also acknowledged that it had exercised its discretion
to dismiss the prior strike conviction “to get a reasonable balance in terms of the
sentence.”
The court denied defendant’s request to dismiss the prior serious felony conviction
enhancement, and found imposition of the five-year term “struck a reasonable balance in
terms of his overall exposure and what I thought the sentence ought to be,” and “adding
five years as opposed to doubling his sentence was an appropriate resolution.”
5.
On January 13, 2020, defendant filed a notice of appeal from the court’s denial of
his motion to dismiss the enhancement.
DISCUSSION
As noted above, defendant’s counsel filed a Wende brief with this court on
October 15, 2020. The brief also includes the declaration of appellate counsel indicating
that defendant was advised he could file his own brief with this court. By letter on the
same day, we invited defendant to submit additional briefing. He has sent the following
correspondence to this court.
Defendant’s motions and letter briefs
On November 23, 2020, defendant requested this court to appoint another attorney
to represent him in this appeal because the attorney refused to raise all issues and instead
filed the Wende brief. On November 25, 2020, this court denied defendant’s request and
explained that the filing of a Wende brief did not, by itself, constitute grounds to remove
counsel. (Wende, supra, 25 Cal.3d at p. 442.)
On December 14, 2020, defendant filed another request to appoint another
attorney to file a new appellate brief and also a petition for writ of habeas corpus, again
based on counsel’s filing of the Wende brief. On December 18, 2020, this court denied
second defendant’s request for a new appellate attorney, and advised that he could file a
petition for writ of habeas corpus without legal assistance and sent him a blank form.
On December 18 and 21, 2020, defendant filed letter briefs, in pro. per., in
response to this court’s invitation to file additional briefing. Defendant did not raise any
issues about the trial court’s decision on December 16, 2019, to deny his motion to
dismiss his prior serious felony conviction enhancement. Instead, defendant asserted he
was innocent of all charges and unjustly convicted by the jury of torture and corporal
injury. Defendant argued there was insufficient evidence to support the torture
conviction; the court improperly excluded photographic evidence; defense counsel failed
to object to the victim’s testimony; defense counsel did not present a defense and refused
6.
to let defendant testify at trial; defendant was under the influence of methamphetamine
when he was interrogated prior to trial; a detective committed perjury in an affidavit to
obtain a search warrant; his pretrial statements were introduced in violation of Miranda
because he asked for an attorney; and he was under the influence of drugs and had
“diminished capacity” when he gave his pretrial statement. Defendant also asserted the
judge who denied his section 995 motion to dismiss was not familiar with the record,
defendant should have received a polygraph test, and there were errors in the probation
report.
In making these arguments, defendant asked this court to review the entirety of the
record of his jury trial “from the very begining [sic], arrest, in custody interogation [sic],
pre-trial, [motions in] lamine [sic], Marsden motions and trial transcripts” for insufficient
evidence, erroneous rulings, involuntary statements, and ineffective assistance.
On December 23, 2020, this court forwarded certain of defendant’s letters to
appellate counsel and requested her to contact her client. On December 29, 2020,
appellate counsel acknowledged receipt of these letters and stated she would contact
defendant.
Analysis
Defendant’s letter briefs of December 18 and 21, 2021, have raised issues that are
solely based on the trial record and alleged errors by the court and his attorney that
occurred at the preliminary hearing and his jury trial. While the filing of a Wende brief
obligates this court to conduct a review of the entire record to determine whether there
are any arguable issues that should be raised on an appellant’s behalf (Wende, supra, 25
Cal.3d at p. 442), the issues in defendant’s letter briefs are from his trial and are not
properly before this court in this second appeal.
“[W]here a criminal defendant could have raised an issue in a prior appeal, the
appellate court need not entertain the issue in a subsequent appeal absent a showing of
justification for the delay.” (People v. Senior (1995) 33 Cal.App.4th 531, 538 (Senior).)
7.
“[A]ll of the factual predicates upon which defendant’s present contention[s] rest[] were
available at the time of defendant’s initial appeal. There is no apparent justification as to
why th[ese] issue[s] could not have been raised the first time defendant’s case was before
this court. There being no reason why defendant ‘should get “two bites at the appellate
apple,” ’ [citation], we deem defendant’s claim of error to be waived.” (Ibid.; see also
People v. Murphy (2001) 88 Cal.App.4th 392, 396–397; United States v. Wright (9th Cir.
1983) 716 F.2d 549, 550 [“When a party could have raised an issue in a prior appeal but
did not, a court later hearing the same case need not consider the matter”].)
Next, we note that the clerk’s transcript in this appeal contains a front page and
proof of service reflecting that on January 21, 2020, a few days after he filed the notice of
appeal in pro. per., defendant apparently refiled his petition for writ of habeas corpus,
also in pro. per. To the extent that he attempted to reassert the same arguments in this
appeal that he previously raised in his writ petition, we agree with the trial court’s
resolution of those issues and similarly find he could have raised them in his first appeal,
and he also failed to show he was entitled to relief.
Finally, as relevant to the instant appeal, we review the court’s decision to deny a
motion to dismiss a prior serious felony conviction enhancement for an abuse of
discretion. (People v. Shaw (2020) 56 Cal.App.5th 582, 586–587.) The court did not
abuse its discretion. The court explained its earlier decision to dismiss the prior strike
conviction, distinguished doubling the term from imposing the five-year enhancement,
and explained that sentencing on the enhancement resulted in an appropriate sentence
given the nature and circumstances of defendant’s convictions.
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
8.