People v. Murphy

A jury convicted Michael Murphy of the following: counts one and two—Rape (Pen. Code, § 261, subd. 3) and rape in concert (§ 264.1); counts three and four—Oral copulation in concert (§ 288a, subd. (d)); count five—Sodomy in concert (§ 286, subd. (d)); count six—Burglary (§ 459) while armed with a firearm and with the infliction of great bodily injury (§§ 12022, 461); count seven—Robbery (§ 211) while armed with a firearm (§ 12022).

He was ordered to serve consecutive prison sentences on counts one, three, four, five and six. His sentences on counts two and seven were stayed pending appeal. (See People v. Niles (1964) 227 Cal.App.2d 749, 755-756 [ 39 Cal.Rptr. 11 ]; In re Wright (1967) 65 Cal.2d 650, 654-656 [ 56 Cal.Rptr. 110 , 422 P.2d 998 ].) In People v. Murphy (Apr. 16, 1979) 4 Crim. 8798 (unpub. opn.), we struck the great bodily injury finding in count six (People v. Caudillo (1978) 21 Cal.3d 562, 587 [ 146 Cal.Rptr. 859 , 580 P.2d 274 ]), and remanded to the trial court for resentencing on count two. At resentencing the court removed its stay of count two which was ordered to be served consecutively. Defendant appeals. We affirm.

Sentencing. We set the scene. The…