P. v. Murphy

Filed 5/25/07 P. v. Murphy CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
TROY KIM MURPHY,
Defendant and Appellant.
H030175
(Monterey County
Super.Ct.Nos. SS051452,
SS052318, SM970648)
Defendant, Troy Kim Murphy, a South Korean citizen,1 is in poor mental health
and is a long-time drug abuser with an accompanying history of criminal convictions.
The trial court, sitting without a jury after defendant waived his right to jury trials,
convicted defendant of various offenses in two of the three cases that form the basis of
1 The significance of defendant’s status as a non–United States citizen will become
apparent when we discuss his claims on appeal. As he alludes to on appeal and explained
in more detail to the superior court, the eventual consequences of his convictions may be
severe. (See In re Resendiz (2001) 25 Cal.4th 230, 257 (conc. & dis. opn. of Mosk, J.).)
Defendant’s American parents adopted him at age two but failed to seek citizenship for
him, and he never thought to apply for it. As a result, he is liable to be deported to South
Korea with no knowledge of Korean and no ties to that country.

-- 1 of 11 --

2
this appeal (SS051452 and SS052318). It revoked defendant’s probation in the third case
(SM970648), and sentenced him to six years in prison.2
On appeal, defendant asserts that the trial court abused its discretion in failing to
have him evaluated for possible commitment to the California Rehabilitation Center, and
that it relied on facts neither charged nor found true beyond a reasonable doubt to impose
aggravated and consecutive prison terms, in violation of federal constitutional guaranties
announced in Apprendi v. New Jersey (2000) 530 U.S. 466 and post-Apprendi United
States Supreme Court cases.
We will affirm the judgment.
I. Eligibility for Commitment to California Rehabilitation Center
A. Procedural Background
During the proceedings3 in this case, the trial court commented: “One other thing
that came to my mind, in looking at [defendant’s] background and history, is the
possibility . . . of perhaps a [California Rehabilitation Center] commitment. But we can
take that up at the time of the actual sentencing.”
At defendant’s sentencing hearing, defense counsel noted that defendant had
“failed at least three programs. And I don’t know what—I mean, I don’t know what more
2 In case No. SS051452, defendant was convicted of possessing a controlled
substance for sale (Health & Saf. Code, § 11378), transporting a controlled substance (id.,
§ 11379, subd. (a)), and possessing a deadly weapon (Pen. Code, § 12020, subd. (a)(1)).
In case No. SS052318, defendant was convicted of burglary (Pen. Code, § 459), forgery
(id., § 470, subd. (d)), and possessing a forged instrument (id., § 475). In case No.
SM970648 defendant was convicted of two counts of grand theft (Pen. Code, § 487,
subd. (a)), theft by use of a credit card exceeding $400 (id., § 484g), burglary (id., § 459),
and grand theft by receiving an access card with intent to defraud (id., § 484e, subd. (c)).
The foregoing citations are to the statutes in effect at the time of the crimes.
3 The facts of the crimes that led to defendant’s convictions and sentences are not
at issue in this appeal, and it is not necessary to describe them for the disposition of this
case.

-- 2 of 11 --

3
we could do with him. The only thing I could think of was [California Rehabilitation
Center]. And I don’t know whether the criminality would bar that or not.” The trial court
replied: “Well, quite frankly, based on the sentence I plan on imposing, he would—even
if he was acceptable to [California Rehabilitation Center], he wouldn’t be eligible.
[¶] . . . [¶] . . . As I understand it, . . . there’s a homeland security immigration hold on
him as well. For a number of reasons I don’t think he’d be eligible for a [California
Rehabilitation Center] commitment.”
Defense counsel replied: “I think that’s probably true too. I don’t know about the
hold on that.” But counsel maintained that defendant was “so ruled by drug abuse and
drug addiction that he is barely a functioning human being. So I’m going to ask the
Court to weigh heavily the . . . physical and mental condition he is in and fashion a
sentence that’s fair.”
The trial court invited defendant to express his view, and he answered: “If you
sentence me to prison, I want to go to [California Rehabilitation Center] if I’m eligible.”
The court replied, “for a number of reasons I don’t think you are eligible for [California
Rehabilitation Center] . . . . That’s not—that won’t be an option, unfortunately.” The
court sent defendant to prison for the prescribed term.
B. Discussion
On appeal, defendant claims that the trial court abused its discretion in not having
him evaluated for possible placement at the California Rehabilitation Center. He asserts
that the law required the court to articulate a proper basis for its decision, and that what
he considers to be the court’s summary denial of his request was improper.
Welfare and Institutions Code section 3051 provides, as relevant here:
“Upon conviction of a defendant for a felony, or following revocation of probation
previously granted for a felony, and upon imposition of sentence, if it appears to the
judge that the defendant may be addicted or by reason of repeated use of narcotics may
be in imminent danger of becoming addicted to narcotics[,] the judge shall suspend the

-- 3 of 11 --

4
execution of the sentence and order the district attorney to file a petition for commitment
of the defendant to the Director of Corrections for confinement in the narcotic detention,
treatment, and rehabilitation facility [i.e., the California Rehabilitation Center] unless, in
the opinion of the judge, the defendant’s record and probation report indicate such a
pattern of criminality that he or she does not constitute a fit subject for commitment
under this section.”
We review for abuse of discretion a trial court’s determination that evaluation for
placement at the California Rehabilitation Center is or is not warranted. (People v.
McGinnis (2001) 87 Cal.App.4th 592, 595.) The trial court is charged with assessing, on
the basis of the information available to it, whether “ ‘the defendant’s main problem is
drug abuse or a criminal orientation as reflected in a pattern of criminality’ ” (id. at
p. 597), a subjective inquiry that requires deference from the reviewing court (ibid.).
The trial court is not required to state facts, but is required to give reasons, when
refusing to order an evaluation for commitment to the California Rehabilitation Center.
(Cal. Rules of Court, rule 4.406(b)(9); People v. Granado (1994) 22 Cal.App.4th 194,
201-203.) Unfortunately, one of the reasons the trial court articulated was inapposite.
To reiterate, the court stated, “based on the sentence I plan on imposing, he
would—even if he was acceptable to [California Rehabilitation Center], he wouldn’t be
eligible. [¶] . . . [¶] . . . As I understand it, . . . there’s a homeland security immigration
hold on him as well. For a number of reasons I don’t think he’d be eligible for a
[California Rehabilitation Center] commitment.” In sum, the court appeared to rely on
two factors: the length of the sentence it was going to impose on defendant, and its
expectation that defendant would be deported after serving his sentence.
In fact, however, only a defendant who is sentenced to more than six years in state
prison, once possible prison credits are taken into account, is ineligible for California
Rehabilitation Center placement. (Welf. & Inst. Code, § 3052, subd. (a)(2).) The trial

-- 4 of 11 --

5
court erred in relying on that factor, because it did not exist. Defendant was sentenced to
six years in prison for the crimes committed in the three cases filed against him.
The trial court’s other stated reason for refusing a California Rehabilitation Center
evaluation is, however, well taken, and suffices for us to reject defendant’s claim. With
regard to defendant’s noncitizen and hence deportable status, he argues that under People
v. Arciga (1986) 182 Cal.App.3d 991, only the Director of Corrections, and not the trial
court, may consider his immigration and nationality status in deciding his suitability for
treatment. But Arciga noted: “ ‘The rehabilitation program contemplates an extended
period of institutional and outpatient treatment. The law contemplates a seven-year
commitment, and a minimum of six months spent as an inpatient, with the addict then
being placed on outpatient status (Welf. & Inst. Code, §§ 3151, 3152, 3201), and pending
deportation makes this program impossible.’ ” (Id. at p. 998.) The program’s outpatient
component remains in effect (Welf. & Inst. Code, §§ 3151, 3152, 3201), and it stands to
reason that the trial court would be in as good a position as the Director of Corrections to
determine defendant’s likelihood of successfully completing treatment, given the possible
later need to place defendant on outpatient status and the fact that the U.S. Immigration
and Customs Enforcement service had placed on defendant a so-called immigration hold,
meaning that defendant would be transferred to federal custody for deportation on
completing his state prison term. An alien who is deportable because of conviction of an
“aggravated felony” under federal law for immigration purposes (a condition that, as
represented to the court below, applied to defendant at an early stage of the proceedings)
is subject to apprehension and confinement by the U.S. Immigration and Customs
Enforcement agency on leaving prison and is unlikely to be released to the community.
(See 8 U.S.C. § 1226, subd. (c)(1)(C); Lopez v. Gonzales (2006) __ U.S. __, __ [127
S.Ct. 625, 627]; U.S. v. Amador-Leal (9th Cir. 2002) 276 F.3d 511, 516-517; In re
Resendiz, supra, 25 Cal.4th at p. 255 (conc. & dis. opn. of Mosk, J.).)

-- 5 of 11 --

6
We perceive that the trial court spoke in the disjunctive. Its twice-uttered
statement that “a number of reasons” warranted not sending defendant for a California
Rehabilitation Center evaluation makes this clear. The court did not invoke “a
combination of reasons,” “a number of reasons in combination,” or similar words. Each
reason, in the court’s mind, justified not having a California Rehabilitation Center
evaluation done. And defendant’s liability to confinement and deportation on leaving
state prison sufficed to permit the court to decide he was not fit for evaluation for
possible placement at the California Rehabilitation Center. (See People v. Arciga, supra,
182 Cal.App.3d at p. 998.) The trial court could so determine without waiting for the
Director of Corrections to make the same determination at a later stage. Thus, the court’s
error in calculating the length of defendant’s prison term against his statutory eligibility
for California Rehabilitation Center placement is of no significance.
Defendant argues that this case is distinguishable from People v. Arciga, supra,
182 Cal.App.3d 991, in that he is not an illegal, i.e., undocumented, alien. Whether that
is true or not, we see no difference: as an alien with a qualifying criminal conviction, he
is deportable on that ground whether or not he would be deportable on some other
ground, such as being illegally present in the United States. He also argues that it is
possible the immigration hold could be lifted or that he could be released on bail from
U.S. Immigration and Customs Enforcement custody so as to participate in the California
Rehabilitation Center outreach program. Both assertions are, however, speculative and
therefore unpersuasive.
II. Sentencing Issues
A. Procedural Background
In case No. SS051452, following a trial by the court, the court convicted defendant
of the following crimes, committed in 2005: possessing a controlled substance for sale

-- 6 of 11 --

7
(Health & Saf. Code, § 11378),4 transporting a controlled substance (id., § 11379, subd.
(a)), and possessing a deadly weapon (Pen. Code, § 12020, subd. (a)(1)). The court
imposed a sentence of four years, the upper term for the transporting count, declaring that
the aggravating circumstances outweighed the mitigating.
In case No. SS052318, following a trial by the court, the court convicted defendant
of the following crimes, committed in 2005: burglary (Pen. Code, § 459), forgery (id.,
§ 470, subd. (d)), and possessing a forged instrument (id., § 475). The court imposed a
sentence of eight months for the burglary count, to run consecutively to the sentence
imposed in case No. SS051452.
Resolution of case No. SM970648 took several years. Defendant committed the
crimes charged in this case in 1997. In 2004 defendant offered to plead no contest to the
five counts charged, and the court accepted the pleas. Thus, defendant was convicted of
the following crimes: two counts of grand theft (Pen. Code, § 487, subd. (a)), theft by
use of a credit card exceeding $400 (id., § 484g), burglary (id., § 459), and grand theft by
receiving an access card with intent to defraud (id., § 484e, subd. (c)). In 2006, after
defendant had violated his probation, the trial court revoked it and imposed an eight-
month term on one of the grand theft counts and an eight-month term for the credit card–
based theft. These two terms were consecutive to the sentence imposed in case No.
SS051452, for a total of 16 months’ confinement.
In imposing the upper term and the three consecutive terms, the trial court stated
only that defendant deserved the upper term because the aggravating factors outweighed
the mitigating factors. The court did not articulate any explicit reason for imposing the
consecutive terms. Counsel did not ask the court to explain or further explain, as the case
4 As noted, all citations of the statutes encompassing defendant’s crimes are to the
statutes in effect at the time of his crimes.

-- 7 of 11 --

8
may be, its reasons for imposing those terms, perhaps because up to the point of
pronouncing sentence, the sentencing hearing had focused on defendant’s long history of
continuing to commit a variety of crimes, his inability to reform, and his squandering of
probation opportunities. The court said to defendant: “Your case is one of the more
tragic cases I’ve seen . . . . You’re almost like a person without a country, because of
your citizenship status . . . . And that’s through no fault of your own. But . . . you’ve
been given the opportunity previously to try and make something productive out of your
life. And . . . you haven’t done that. [¶] So I’m going to [give] you what I think is an
appropriate and fair sentence based on all those considerations.”
B. Discussion
1. Constitutionality of Consecutive and Aggravated Terms
In Cunningham v. California (2007) 549 U.S. __ [127 S. Ct. 856]), which the
United States Supreme Court issued while this appeal was pending, the high court
overruled in part the California Supreme Court’s decision in People v. Black (2005) 35
Cal.4th 1238, which had held, among other things, that the provisions of California’s
determinate sentencing law authorizing the trial court to find the facts permitting an
upper term sentence did not violate a defendant’s right to a jury trial. (Cunningham,
supra, 549 U.S. at p. ___ [127 S.Ct. at p. 860].) The United States Supreme Court
concluded that because our determinate sentencing law “authorizes the judge, not the
jury, to find the facts permitting an upper term sentence, the system cannot withstand
measurement against our Sixth Amendment precedent.” (Id. at p. ___ [127 S.Ct. at
p. 871].)
The decision in Cunningham did not address consecutive sentencing, and therefore
we remain bound by the California Supreme Court’s holding in People v. Black, supra,
35 Cal.4th at page 1262, that a defendant’s Sixth Amendment right to a jury trial is not
violated when the trial court exercises its discretion to determine whether to impose

-- 8 of 11 --

9
sentences consecutively or concurrently. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)
We turn to defendant’s aggravated term. Under Cunningham v. California, supra,
549 U.S. __ [127 S. Ct. 856], it was error under the Sixth Amendment to the United
States Constitution for the trial court (which with defendant’s agreement had tried the
case without a jury, so no question of decision-making by jury rather than judge arises in
this case) to impose the upper term in case No. SS051452 without declaring on the record
that it found beyond a reasonable doubt that the aggravating factors outweighed the
mitigating factors. (Id. at p. __ [127 S.Ct. at p. 868]; see id. at pp. __, __ [127 S.Ct. at
pp. 863-864, 870].)
In this case, however, the error was harmless. Cunningham states that the upper
term is authorized if imposed pursuant to facts admitted by the defendant. (Cunningham
v. California, supra, 549 U.S. at pp.__, __ [127 S.Ct. at pp. 865, 868].) Only a single
aggravating factor is required to impose the upper term. (People v. Osband (1996) 13
Cal.4th 622, 728.) As described, defense counsel essentially conceded at the sentencing
hearing that defendant had an unsatisfactory performance on probation and a pattern of
criminal conduct. Counsel acknowledged that his client had “failed at least three
programs,” referring to one or more programs in which defendant was placed as part of
his probation. And counsel acknowledged defendant’s habitual “criminality.” If we were
to remand the case for resentencing, undoubtedly the trial court (or a jury, if impaneled to
decide the sentencing issue) would find beyond a reasonable doubt that these aggravating
factors exist. Thus, the error was harmless beyond a reasonable doubt. (Chapman v.
California (1967) 386 U.S. 18, 24; see People v. Sengpadychith (2001) 26 Cal.4th 316,
326, 327.)

-- 9 of 11 --

10
2. Adequacy of Statement of Reasons for Imposing Aggravated
and Consecutive Terms
Defendant has forfeited his claim that the trial court failed to state adequate
reasons for imposing upper and consecutive terms. He may not complain for the first
time on appeal about the manner in which the trial court articulated the reasons for its
sentencing choices. (People v. Scott (1994) 9 Cal.4th 331, 356.) “Although the court is
required to impose sentence in a lawful manner, counsel is charged with understanding,
advocating, and clarifying permissible sentencing choices at the hearing. Routine defects
in the court’s statement of reasons are easily prevented and corrected if called to the
court’s attention.” (Id. at p. 353.) By not objecting in a timely manner to any lack of an
adequate statement of reasons for the court’s sentencing decisions, defendant has failed to
preserve his claim for review.
In addition to defendant’s forfeiting this claim, he would not be entitled to relief
on the merits. As noted, the sentencing hearing focused on defendant’s long history of
continuing to commit a variety of crimes, his inability to reform, and his squandering of
the benefits of probation. Plainly, the trial court had in mind the aggravating factors of
defendant’s numerous criminal convictions (Cal. Rules of Court, rule 4.421(b)(2)) and his
unsatisfactory performance on probation (id., rule 4.421(b)(5)). Even if the court failed
to articulate its reasons for imposing the consecutive and upper terms as fully as required
(see id., rules 4.406(a), (b)(5) [consecutive terms]; 4.406(a), (b)(4), 4.420(e) [upper
term]), any error was harmless, because on this record, there is no reasonable probability
(People v. Scott, supra, 9 Cal.4th at p. 355) of a different result if we were to remand the
case for resentencing.

-- 10 of 11 --

11
DISPOSITION
The judgment is affirmed.
______________________________________
Duffy, J.
WE CONCUR:
______________________________________
Bamattre-Manoukian, Acting P.J.
______________________________________
McAdams, J.

-- 11 of 11 --