People v. McCurry CA5, F080650

Scott Alen McCurry was convicted by jury of torture (§ 206) and corporal injury to a spouse (§ 273.5), with findings of a prior serious felony enhancement (§ 667(a)) and a prior strike; additional enhancements (great bodily injury) and misdemeanors were also convicted.
At initial sentencing the court dismissed the prior strike (Romero) but imposed life with parole eligibility rules for torture, plus a consecutive five-year term for the § 667(a) prior serious felony enhancement, producing a stated total of 12 years to life; defendant appealed.
After the first appeal, Senate Bill No. 1393 amended § 667(a) to give trial courts discretion to dismiss the five‑year prior serious felony enhancement; this court remanded for the trial court to consider dismissing that enhancement.
On remand the trial court declined to exercise its new discretion to dismiss the five‑year enhancement, explaining it balanced sentencing by dismissing the strike earlier and still found the enhancement appropriate.
Defendant appealed the remand denial; appellate counsel filed a Wende brief, defendant filed pro se letters raising many trial‑level claims, and the Court of Appeal conducted an independent review and affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court abused its discretion by denying dismissal of the § 667(a) five‑year enhancement after SB1393	The court properly exercised discretion; the enhancement produced an appropriate sentence given the nature of the offenses	The court should dismiss the enhancement because the prior strike was already dismissed and defendant showed exemplary custody behavior	No abuse of discretion; denial affirmed
Whether defendant may relitigate trial‑level claims (Miranda, sufficiency, evidentiary, IAC) in this second appeal	Issues were available in the first appeal and are forfeited now; no justification for delay	Defendant contends innocence and raises multiple trial‑error and IAC claims	Claims are waived; appellate court declines to consider them in this appeal
Whether appellate counsel should be replaced for filing a Wende brief	Filing a Wende brief alone does not require substitute counsel	Defendant asked for new appellate counsel to raise additional issues	Requests denied; defendant may file pro se briefs/writs separately
Whether any reasonably arguable issues exist after independent review	No reasonably arguable issues found	Defendant submitted pro se letters alleging various errors	Independent review found none; judgment affirmed

Wende, People v., 25 Cal.3d 436 (1979) (appellate counsel may file brief summarizing record and court must conduct independent review for arguable issues)
Romero, People v. Superior Court (Romero), 13 Cal.4th 497 (1996) (authority and standards for dismissing prior strike under § 1385)
Shaw, People v., 56 Cal.App.5th 582 (2020) (standard of review for denial of motion to dismiss a § 667(a) enhancement is abuse of discretion)
Senior, People v., 33 Cal.App.4th 531 (1995) (issues available in an earlier appeal are not entertained later absent justification)
Murphy, People v., 88 Cal.App.4th 392 (2001) (same principle on successive appellate review)
Wright, United States v., 716 F.2d 549 (9th Cir. 1983) (federal precedent declining to consider issues omitted from prior appeal)
Strickland v. Washington, 466 U.S. 668 (1984) (ineffective assistance standard)
Miranda v. Arizona, 384 U.S. 436 (1966) (rights regarding custodial interrogation)