P.
v. Murphy
Filed 5/20/13 P. v. Murphy
CA2/7
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
>
THE PEOPLE, Plaintiff and Respondent, v. MONRELL DONOVAN MURPHY, Defendant and Appellant. | B238006 (Los Angeles County Super. Ct. No. MA053156) |
APPEAL from a judgment of the Superior Court of
County, Bernie C. LaForteza, Judge. Affirmed.
Stephen M. Hinkle, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Susan Sullivan Pithey and Rene Judkiewicz, Deputy Attorneys General,
for Plaintiff and Respondent.
______________________
INTRODUCTION
Defendant Monrell Donovan Murphy
appeals from a judgment of conviction entered after a jury trial. Defendant was charged with two counts of
Abraham Gomez (Gomez) (count 1) and Juliana Anguiano (Anguiano) (count 3), and
dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1); count
4). As to counts 1 and 3, it was alleged
that defendant suffered a prior serious felony conviction (§ 667, subd.
(a)(1)) and, as to all three counts, it was alleged that defendant had suffered
a prior conviction under the “Three Strikes†Law (§§ 667, subds. (b)-(i),
1170.12), and that he had served two prior prison terms within the meaning of
section 667.5, subdivision (b).
Defendant was convicted of the two counts of second
degree robbery, but found not guilty of dissuading
a witness. The jury found true the
prior conviction allegations.
Defendant was sentenced to 18 years in prison. In addition, the court ordered defendant to
pay a $1,000 restitution fine under section 1202.4, subdivisions (b) through
(f), and imposed and stayed a $1,000 parole revocation fine under
section 1202.45.
On appeal, defendant contends the trial court improperly
excluded the testimony of defendant’s eyewitness identification expert, there
was instructional error, and the restitution fine was improper. We affirm.
FACTS
In the middle of the night of June
16, 2011, sometime before 2:00 a.m., Gomez was working by
himself in the back of a donut shop in Lancaster, making donuts. Defendant came in with another man. Defendant went to the back, grabbed Gomez by
the neck, and brought him to the cash register.
Defendant asked for money; the other man placed a handgun to Gomez’s
head. Gomez was unable to open the cash
register and was struck behind his right ear with the gun. Defendant and the other man took the cash
register and fled.
Gomez identified defendant from a photographic
lineup. He also identified a
surveillance video from the donut shop as depicting the incident.
On June 22, 2011, Anguiano was working at a
Check and Go in Lancaster. Anguiano buzzed defendant through the front
door. Defendant asked a few questions
and then hopped over a counter and asked for money. Anguiano was scared and thought defendant had
a weapon in his waist band. Anguiano
felt she had no choice but to open the drawer with her key. Defendant took about $1,400 in cash and
change, and checks from one drawer.
Defendant wiped down the drawers with the bottom of his
T-shirt. When he was leaving, he told
Anguiano, “Give me five minutes. Don’t
you call the cops. I’m going to come and
get you.â€
Anguiano identified a surveillance video showing herself
and defendant as depicting what happened that day. She also identified a photographic lineup
from which she selected defendant’s photo.
Detective Adam Zeko learned that Carlton Ewing (Ewing)
shop robbery. When he located Ewing, he recovered a BB gun
which Gomez later identified as the gun used in the robbery. Ewing also had in his possession a safe deposit key which
had been in the donut shop’s cash register.
Defendant’s cell phone number was on Ewing’s cell phone. When Detective Randy Megrdle called the
number, a man who identified himself as “Monrell†answered the phone.
B. Defense
Defendant, who represented himself at trial, called
several witnesses, including Law Enforcement Technician Veronica Braun (Braun),
Deputy Sheriff Bradley Feehan, Detective Richard Ellis, and Sergeant Craig
Husbands.
Braun testified that on “January 16th,†she was a
custodian of evidence and could not remember defendant’s case or the evidence.
Deputy Feehan testified that he assisted in investigating
the June 16 incident. Detective Ellis
testified that he showed Gomez a photographic six-pack. English was not Gomez’s primary language and
Detective Ellis spoke “some Spanish.â€
Detective Ellis saw Gomez initial the six-pack and circle defendant’s
photograph.
Sergeant Husbands testified that he was the approving
officer for most of the reports in defendant’s case, but Detective Megrdle was
in charge of the investigation.
Defendant testified that he has a brother a year older
whose name is Montel. Although Montel
was charged with the crime, somehow defendant “got involved.†Defendant claimed that when both robberies
were committed, he was at home, and when the donut shop robbery occurred, he
was in bed asleep.
DISCUSSION
A. Exclusion of Eyewitness
Identification Expert Testimony
Defendant contends that the trial
court improperly excluded the testimony of an eyewitness identification expert
who was going to testify for defendant.
The People assert that because defendant failed to raise his
he has forfeited it. We reject
defendant’s contention.
A defendant may not complain on
appeal that the exclusion of expert testimony under McDonald
name="_ftnref3" title="">[3] violated his or her
constitutional rights if the argument was not made in the trial court. (People
v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3.) Defendant argues that the claim was not
forfeited because he stated in his written motion that he had a federal due
process right to an adequate defense.
Even assuming no forfeiture, defendant’s claim lacks merit.
Only relevant evidence is admissible
at trial. (Evid. Code, § 350.) Relevant evidence is that which has “any
tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.†(
The trial court has the duty to determine the relevance and thus the
admissibility of evidence before it can be admitted. (
The trial court is vested with wide discretion in performing this
duty. (People v. Waidla (2000) 22 Cal.4th 690, 717.) We will not disturb the trial court’s
exercise of its discretion on appeal unless the court has abused its discretion
(ibid.), i.e., if its decision
exceeds the bounds of reason. (
1198, 1226.)
Expert opinion testimony is
admissible if the subject matter of the testimony is “sufficiently beyond
common experience that the opinion of an expert would assist the trier of
fact.†(Evid. Code, § 801, subd. (a).) Such testimony must be “[b]ased on matter
(including his special knowledge, skill, experience, training, and education)
perceived by or personally known to the witness or made known to him at or
before the hearing, whether or not admissible, that is of a type that reasonably
may be relied upon by an expert in forming an opinion upon the subject to which
his testimony relates . . . .†(
People
v. McDonald, supra, 37 Cal.3d 351
addresses the admissibility of expert opinion evidence on the subject of
eyewitness identification. It begins
with the recognition that “‘[t]he vagaries of eyewitness identification are
well-known; the annals of criminal law are rife with instances of mistaken
identification.’ [Citation.]†(Id.
at p. 363.) Eyewitness
identification generally is given great credibility by the jury, but scientific
studies have revealed a number of psychological factors affecting the accuracy
of eyewitness identification. (
court notes that courts have been reluctant to admit testimony by expert
witnesses on the psychological factors affecting the accuracy of eyewitness
identification. (Id. at p. 365.) The question
before it was whether that reluctance was justified. (Ibid.)
The court observes the requirement
of Evidence Code section 801, subdivision (a), that expert opinion
testimony address subjects “‘sufficiently beyond common experience that the
opinion of an expert would assist the trier of fact.’†(People
v. McDonald, supra, 37 Cal.3d at
p. 367, italics omitted.) As to whether
the expert testimony at issue meets this requirement, the court notes “[i]t is
doubtless true that from personal experience and intuition all jurors know that
an eyewitness identification can be mistaken, and also know the more obvious factors
that can affect its accuracy, such as lighting, distance, and duration. It appears from the professional literature,
however, that other factors bearing on eyewitness identification may be known
only to some jurors, or may be imperfectly understood by many, or may be
contrary to the intuitive beliefs of most.â€
(Id. at pp. 367-368, fn.
omitted.) These factors include the
cross-racial nature of the identification and the lack of correlation between
the degree of confidence in an identification and the accuracy of that
identification. (Id. at pp. 368-369.) Since
some jurors may be “unaware of the foregoing psychological factors bearing on
eyewitness identification, the body of information now available on these
matters is ‘sufficiently beyond common experience’ that in appropriate cases
expert opinion thereon could at least ‘assist the trier of fact’ (Evid. Code, §
801, subd. (a)).†(McDonald, supra, at p.
369, fn. omitted.)
Defendant filed an ex parte motion
for appointment of an eyewitness identification expert. On October 26, 2011, the court
for appointment of an identification expert.
In arguing the motion, defendant told the court, “I think the relevant
point is the fact that the six-pack was administered to a non-English-speaking
witness without the aid of an interpreter, with hand gestures; and impermissive
communication was used.†Defendant also
noted that the admonishment was dated July 7, “some three weeks after the actual
six-pack, which indicates that possibly the witness was not properly admonished
as well.â€
The court examined one six-pack, and
noted all the photographed individuals were African-American males with
short-cropped hair. The court ruled, “I
don’t see anything here that shows it to be suggestive. They all appear to be . . . the same size,
same features somewhat, although different individuals.â€
The court relied on
preliminary hearing transcript showing that there was a six-pack identification
made on two different occasions, two different witnesses, both of which
identify the defendant. There is
reference, also, to a videotape of the incident. With regard to defendant’s argument that
. . . one of the witnesses was not assisted by an interpreter, I
believe that is ripe for cross-examination and could be used by the defense to
question the validity or the accuracy of the admonishments and the
identification. . . . I don’t
think an expert is needed to say that . . . based on a
noninterpreter, that the identification was tainted. . . . [I]f you don’t have an
individual who speaks English, you can raise that on cross-examination and
argue that. That is not beyond the
common experience.â€
The court further stated: “With regard to the admonishment and
. . . with regard to the time difference, the length of time in terms
of the time of the incident, the time of the six-pack identification, again,
that is ripe for cross-examination for the defense. Again, I don’t see why there is a need for an
expert to testify that the length of time makes the identification not as
accurate. Again, that is not beyond the
common experience of anyone. This is
ripe for argument. . . .
The defense can argue that based on the time difference, that that
is—that could taint the person’s identification. So I don’t see how an expert . . .
would be relevant. Again, it doesn’t
meet the McDonald test, and there is
substantial corroboration.â€
We find no error in the court’s
ruling on defendant’s motion. The trial
court instructed the jury on factors affecting the accuracy of eyewitness
identifications, specifically CALCRIM No. 315.
The jury is presumed to have understood and followed the court’s
instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
The facts that justified an
eyewitness expert in McDonald were
not present in the instant case. In
witnesses who testified that [the] defendant was in another state on the day of
the crime†and a prosecution witness testified “that [the] defendant was not
the gunman.†(People v. McDonald, supra,
37 Cal.3d at p. 355, italics omitted.)
In the instant case, defendant did not have alibi witnesses to support a
defense that he was not at the crime scenes.
The prosecution presented strong evidence to support the eyewitness
identifications. There were videotapes
of both incidents. In an in-field
show-up identification, Gomez recognized defendant’s facial features, earring
and shoes. Anguiano observed defendant
in the daylight. Anguiano and Gomez each
identified defendant immediately upon seeing his photograph and were sure that
he was the gunman.
There was also independent evidence
that tied defendant to the crimes. There
were videotapes of both incidents. Ewing
was tied to the robbery through the donut shop’s cash register’s safe deposit
key in his possession, and defendant was tied to Ewing by his cell phone number
on Ewing’s cell phone. This evidence
gave reliability to the eyewitness identifications.
B. Jury Instructions
It is well
established that the trial court has a duty to “instruct on lesser offenses
necessarily included in the charged offense if there is substantial evidence
the defendant is guilty only of the lesser.
[Citation.] On the other hand, if
there is no proof, other than an unexplainable rejection of the prosecution’s
evidence, that the offense was less than that charged, such instructions shall
not be given. [Citation.]†(People
v. Kraft (2000) 23 Cal.4th 978, 1063-1064.)
An offense is a lesser necessarily included offense if the statutory
elements of the greater offense include all of the elements of the lesser
offense, so that the greater offense cannot be committed without also
committing the lesser offense. (
117; see also People v. Reed (2006)
38 Cal.4th 1224, 1230-1231.)
Defendant contends that in the instant case, where the
element of force or fear was not clearly established, the court had a
that defendant could be convicted of grand theft person in count 3, as an
alternative and a lesser included offense of robbery. We disagree.
Section 211 defines “robbery†as “the felonious taking of
personal property in the possession of another, from his person or immediate
presence, and against his will, accomplished by means of force or fear.â€
Section 484, subdivision (a), defines “theft†as
follows: “Every person who shall
feloniously steal, take, carry, lead, or drive away the personal property of
another, or who shall fraudulently appropriate property which has been
entrusted to him or her, or who shall knowingly and designedly, by any false or
fraudulent representation or pretense, defraud any other person of money, labor
or real or personal property, or who causes or procures others to report
falsely of his or her wealth or mercantile character and by thus imposing upon
any person, obtains credit and thereby fraudulently gets or obtains possession
of money, or property or obtains the labor or service of another, is guilty of
theft.â€
“‘Theft,’ as we have often held, ‘is a lesser included
offense of robbery . . . .’
[Citations.] Robbery comprises
elements embracing the use of force or fear to effect a taking from the victim
[citation] and also an intent to steal [citation] accompanying the use of such
means [citation]. Theft comprises the
same elements, including intent to steal, with the pertinent exception of the
use of force or fear. [Citation.]†(People
v. Waidla, supra, 22 Cal.4th at
p. 737.)
We do not agree with defendant’s contention that he did
not take any action that posed a threat of an imminent unlawful injury as
required for the robbery. Anguiano
testified that she was alone in a business that had a sizeable amount of
cash. Defendant hopped over the counter
at the business and asked her for money.
Anguiano also testified that defendant approached her “like he had somethingâ€
in his waistband, even though she did not see anything. She reasonably thought that defendant would
hit her if she didn’t cooperate and believed she had no choice but to open the
drawer and give defendant $1,400.
Additionally, defendant threatened to come after her if she called the
police.
The record before the trial court lacked substantial
evidence that the offense was theft rather than robbery; there was no evidence
the money was taken other than by force or fear. Therefore, the trial court had no sua sponte
duty to instruct the jury on the lesser included offense of theft. (People
v. Jones (1992) 2 Cal.App.4th 867, 871-872.)
Defendant claims the amount of restitution imposed
violates the constitutional requirement that the punishment imposed be based
upon facts reflected in the jury’s verdict.
(Blakely v. Washington (2004)
542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]; Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348,
147 L.Ed.2d 435].)
At the sentencing hearing, the trial court ordered
defendant to pay a $1,000 restitution fine pursuant to section 1202.4,
subdivisions (b) through (f), and a corresponding parole revocation fine
(§ 1202.45), which was stayed pending revocation of parole. Initially, the People contend that because
defendant did not object to the restitution fine, he forfeited his challenge to
the fine amount. (People v. Nelson (2011) 51 Cal.4th 198, 227.) Defendant submits that the restitution order
was an unauthorized sentence and may be corrected at any time by the appellate
court. (People v. Slattery (2008) 167 Cal.App.4th 1091, 1095.) In addition, defendant cites a change in the
law as evidenced by S. Union Co. v.
United States (2012) ___ U.S. ___ [132 S.Ct. 2344, 183 L.Ed.2d 318] as a
reason that the claim should not be considered forfeited. Regardless, we find defendant’s claim is
without merit.
At the time of sentencing, section 1202.4 provided, in
pertinent part: “(b) In every case where a person is convicted of
a crime, the court shall impose a separate and additional restitution fine,
unless it finds compelling and extraordinary reasons for not doing so, and
states those reasons on the record.
[¶] (1) The restitution fine shall be set at the
discretion of the court and commensurate with the seriousness of the offense,
but shall not be less than two hundred dollars ($200), and not more than ten
thousand dollars ($10,000) . . . . [¶] . . .
[¶] (d) In setting the amount of the fine pursuant to
subdivision (b) in excess of the two hundred-dollar ($200) . . . minimum,
the court shall consider any relevant factors, including . . . the
defendant’s inability to pay . . . . Consideration of a defendant’s inability to
pay may include his or her future earning capacity. A defendant shall bear the burden of
demonstrating his or her inability to pay.
Express findings by the court as to the factors bearing on the amount of
the fine shall not be required. A
separate hearing for the fine shall not be required.â€
Defendant’s reliance on S. Union Co. for the proposition that the rule of
is misplaced. In S. Union Co., Southern Union Company was convicted of multiple
counts of violating federal environmental statutes. At sentencing, the probation office set the
fine at $38.1 million on the basis that Southern Union violated the Act for 762
days. Southern Union objected because
the jury was not asked to determine the precise duration of the violation. (S.
Union Co. v. United States, supra,
___ U.S. ___ [132 S.Ct. at pp. 2349].)
On appeal, the United States Supreme Court held that the
tenets of common law criminal jurisprudence and the constitutional requirements
of an accusation and trial by jury compel the conclusion that the jury must
determine the facts that set the maximum amount of a criminal fine. (S.
Union Co. v. United States, supra,
___ U.S. ___ [132 S.Ct. at pp. 2353-2355].) The court found no basis under
differently than other findings made by the jury.
Defendant contends that the case of People v. Kramis (2012) 209 Cal.App.4th 346, 351, review denied
December 12, 2012, which held that S.
Union Co. “does not impact the restitution fine imposed†under section
1202.4, was wrongly decided. We
disagree. In Kramis, the court explained:
“Apprendi and [
Union Co. do not apply when, as here, the trial court exercises its
discretion within a statutory range.
[Citations.] As the United States
Supreme Court held in Apprendi,
‘[N]othing in [the common law and constitutional history] suggests that it is
impermissible for judges to exercise discretion—taking into consideration
various factors relating both to the offense and offender—in imposing a
judgment within the range prescribed by statute.’ [Citations.]
. . . ‘Apprendi
distinguishes a “sentencing factorâ€â€”a “circumstance, which may be either
aggravating or mitigating in character, that supports a specific sentence
within the range authorized by the jury’s finding that the defendant is guilty
of a particular offenseâ€â€”from a “sentence enhancementâ€â€”“the functional
equivalent of an element of a greater offense than the one covered by the
jury’s guilty verdict†constituting “an increase beyond the maximum authorized
statutory sentence.†[Citation.]’ [Citation.]
Nothing in [S.]
section 1202.4, subdivision (b)(1), absent compelling and extraordinary
circumstances, the trial court was required to impose a restitution fine in an
amount between $200 and $10,000.†(
The $1,000 fine imposed on defendant was within the
statutory range of $200 to $10,000.
Hence, there was no Apprendi
violation. (People v. Kramis, supra,
209 Cal.App.4th at p. 351.)
Moreover, under section 1202.4, an appropriate fine is
$200 multiplied by the number of years of imprisonment to which the defendant
is sentenced. (Subd. (b)(2).) Defendant was sentenced to 18 years in
prison, and thus could have been given a $3,600 restitution fine. The $1,000 restitution fine imposed was
presumptively appropriate, and the trial court did not abuse its discretion (
396, 405) in setting it at that amount.
DISPOSITION
The judgment is affirmed.
JACKSON,
J.
We concur:
WOODS, Acting P. J.
ZELON, J.
name="_ftn1" title="">
otherwise specified, all further statutory references are to the Penal Code.
was also charged with the robbery in count 1.
