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Name: People v. Murphy
Case #: F032680
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 04/10/2001
Subsequent History: Rehg. den. 5/3/01; Rev. den. 7/18/01

This case had been remanded to the trial court to decide whether to exercise its discretion to vacate one or more of the jury’s strike findings. On remand, the trial court elected not to strike any of the findings. The Court of Appeal held that defendant could not now argue that the dual use of his prior burglary to elevate a petty theft to a felony and to invoke the application of the Three Strikes law violated due process and the protection against double jeopardy. The remand did not require the trial court to resentence defendant unless it first decided to vacate a strike finding. Since it chose not to vacate a strike, the issue of defendant’s sentence was not before it. The court did say in a footnote that it would reject the argument if it were to consider it.