Filed 6/28/21 P. v. McMurray CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B310560
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA197533)
v.
ROSCOE MCMURRAY,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Curtis B. Rappé, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
Roscoe McMurray appeals from a postjudgment order
denying his motion for resentencing. His appellate counsel filed
a brief asking this court to proceed under People v. Serrano
(2012) 211 Cal.App.4th 496 (Serrano).
In 2000, McMurray was convicted of three counts of
robbery (Pen. Code,1 § 211) and one count of felon in possession of
a firearm (former § 12021, subd. (a)(1)). The jury found true a
firearm enhancement (§ 12022.53, subd. (b)), and the trial court
found that he had two prior serious convictions within the
meaning of the Three Strikes law. The trial court sentenced
McMurray to three consecutive 25-years-to-life terms plus a
determinate term of 13 years 4 months. Another panel of this
Division affirmed the judgment. (People v. McMurray (Jan. 25,
2002, B146894) [nonpub. opn.].)
Thereafter, section 1016.8 became effective January 1,
2020. (Stats. 2019, ch. 586, § 1, pp. 1–2.) The section provides
that a plea bargain requiring a defendant to generally waive
future benefits of legislative enactments, initiatives, appellate
decisions, or other changes in the law that may retroactively
apply after the date of the plea is not knowing and intelligent and
is void as against public policy. (§ 1016.8, subds. (a)(4), (b).)
McMurray filed a motion under that section, arguing that the
trial court could not use his prior convictions that resulted from
plea bargains as strikes because he entered into those pleas
before the Three Strikes law was enacted. McMurray attached to
his motion a barely legible abstract of judgment dated 1988
showing that he was convicted of five counts of robbery pursuant
1All further undesignated statutory references are to the
Penal Code.
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to a plea. The trial court summarily denied McMurray’s motion,
noting that the 1988 abstract of judgment did not reference any
condition of the plea.
McMurray appealed. His appellate counsel declared he
was unable to find any arguable issues and asked us to follow
Serrano, supra, 211 Cal.App.4th 496, which found that review
under People v. Wende (1979) 25 Cal.3d 436, does not apply to
appeals from orders denying postconviction relief. (Accord,
People v. Cole (2020) 52 Cal.App.5th 1023, review granted Oct.
14, 2020, S264278.) Cole, at pages 1039 to 1040, found that an
appeal from a postconviction order may be dismissed if counsel
has found no arguable issues and if the defendant has not filed a
supplemental brief. Where the defendant has filed a
supplemental brief, the Court of Appeal must evaluate any
arguments raised in the brief and issue a written opinion
disposing of the trial court’s order on the merits. (Ibid.) Here,
McMurray filed a supplemental brief. Accordingly, without
deciding whether Cole is correct in whole or in part, we proceed to
review his contentions.
McMurray appears to contend that his 1988 plea bargain
was not knowing and intelligent and was void as against public
policy, so his 1988 convictions could not be used as strikes when
he was sentenced in his later case in 2000. However, the abstract
of judgment concerning McMurray’s 1988 convictions does not
show what conditions were attached to the plea. Therefore,
McMurray has not shown entitlement to any relief under section
1016.8. Also, McMurray’s supplemental brief raises no new issue
and merely repeats the issues raised in his motion.
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We have examined the record and have found no arguable
issues. We are further satisfied that McMurray’s attorney has
fully complied with the responsibilities of counsel.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
KALRA, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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