P. v. Murphy

Filed 8/29/06 P. v. Murphy CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Marquiest Leon Murphy of two counts of attempted murder (Pen. Code, §§ 664, 187, subd. (a)).^[1] The jury also found true an enhancement allegation as to each count that he personally and intentionally discharged a firearm and proximately caused great bodily injury to a person other than an accomplice (§ 12022.53, subd. (d)). Sentenced to a determinate term of 11 years four months and two consecutive terms of 25 years to life, defendant appeals.

Defendant contends there is insufficient evidence to support the convictions and enhancements and the trial court erred in (1) denying a motion in limine as to expert testimony concerning street gangs, (2) failing to instruct sua sponte on voluntary manslaughter as a lesser included offense, and (3) imposing upper terms based on facts not determined by the jury. Defendant also contends the prosecutor committed prejudicial misconduct in examining a witness, in presenting evidence known to be false, and during closing argument. Finding no merit in his contentions, we shall affirm the judgment.

FACTUAL BACKGROUND

Angered by the presence of rival gang members at a party, defendant randomly shot two of the partygoers during the early morning hours of February 29, 2004--Dianne Butler and Brandon Stevens.

On Saturday night, February 28, 2004, Dianne Butler and three other women were club hopping until shortly before the 2:00 a.m. bar closing time on February 29. They learned an “after party” was being held by Ernest Rudolph at a commercial industrial building used for offices on Power Inn Road. They decided to attend.

Butler had been to parties at the site twice on earlier occasions. She parked in the lot in back of the building and entered through the wide-open back door. When she arrived the back parking lot was filling up. There were a lot more people than at the earlier parties, three times as many. She knew Rudolph for more than nine years and knew that he was affiliated with the Bloods street gang.

The back parking lot became packed with as many as 100 cars. Cars were parked “all over,” not many were in the marked stalls. People were standing around talking and playing music from their cars, loudly.

A large contingent in the back parking lot was affiliated with the Crips street gang. Dennis Blackwell, a Crip for 13 years, arrived in the car of Brandon Stevens, his “home boy,” i.e., a longtime acquaintance or gang associate. They were the fourth car in a caravan of approximately 30 cars, carrying almost 50 Crips, who had learned of the party. The Crips were standing around in front of the back door talking with each other and women who had come to the party. The Crips were not going inside of the building, where the party was underway. They were aware the party was “a Blood function.”

Crips in the back parking lot had been conversing and calling out to each other in their gang’s banter. This is offensive if done in the presence of a person known to be a Bloods affiliate.

Mark Caesar had learned of the after party from a group of Crips at a nearby gas station. He is presently affiliated with a Bloods subset, but gets along with both Crips and Bloods. Generally speaking Crips and Bloods are rival gangs. Sometimes, depending upon the setting and circumstances, meetings of their affiliates result in altercations.

Caesar stopped at a liquor store and then parked on the street near the warehouse. He made his way toward the back door, stopping to talk with people he knew. As he stood near the door he saw Butler come out to smoke a cigarette. As she smoked, she stood right in front of the back door.

As Butler stood smoking her cigarette, facing the door, defendant walked past her. He appeared to be upset, really upset, angry. He seemed to be talking to himself. He was walking “a little hard” and his expression reminded her of her son when he was upset, “kind of a strange stare.” After she saw his face she turned back toward the street, “and started, you know, minding my own business.” The next thing she recalls is waking up in the hospital on March 18th, 2004--nearly a month later. She had been shot in the chest under her right breast. The bullet exited her back below the shoulder blade. She has no memory of hearing gunshots. While in the hospital she identified defendant in a photographic lineup as the “angry man” who walked by her.

Blackwell also saw defendant walking toward the back door. Blackwell recognized defendant as a Bloods affiliate with whom Blackwell had had “gang-related problems” before. Defendant was fiddling with his waistband, looking around. Blackwell called out a warning to his home boys that defendant had a gun.

Within a few seconds after defendant entered the back doorway Blackwell heard gunfire. He saw muzzle flashes inside the doorway. He heard more than seven shots. They were in quick succession with no interval between the shots. Afterward people were screaming and calling for someone to telephone 911.

Stevens testified at trial that he was talking to Blackwell and saw someone walk by real quick muttering. Then he heard a brief argument inside the doorway, gunshots ensued and he ran. As he ran past his car he was shot in the leg. The bullet entered below his buttock and came out mid-thigh in the front. He ran on to the adjacent street and collapsed.

Caesar thought there were “about three shots.” The shots were coming from within the threshold of the doorway. As soon as Caesar heard the shots he ducked down to get out of the way of the door. When he was about to get up he saw Butler on the ground. He went to her, found she was wounded, and telephoned 911 to summon assistance.

About 20 or 30 seconds after the fusillade a lot of people stampeded out of the doorway and were “hopping in their cars getting up out of there.” About 20 or 25 seconds after that Caesar heard a couple of additional shots from an unknown location that he inferred was to the west down the street on Ramona Avenue.

Alerted by 911 calls, Sacramento City Police Department Officers Brian Kinney and Brian Bell arrived at the chaotic scene shortly after 3:00 a.m. Officer Kinney located Butler. She told him she heard the shots and got hit in the chest. Once she had been loaded into the ambulance the officers secured the scene. Blackwell came forward and opined to Officer Bell that defendant was the shooter.

The door opens to an entry space seven feet wide and four and one-half feet deep. A three-and-one-half-foot-wide hallway then continues into the building from the right side of the entry space. Officer Bell found two .40-caliber shell casings inside the building. One was located in the entry space and the other in the hallway. He saw two apparent bullet impact points inside the building. One was on a hallway doorframe; the other was on the wall adjacent to the back door. Bell also found an expended lead bullet and a damaged bullet fragment in the back parking lot, 20 to 25 feet from the doorway.

On March 15, 2004, Stevens was interviewed by Detective Arnel Aquino of the Sacramento Police Department. Stevens was in custody. He had been arrested for possession of a pistol by a convicted felon. He had acquired the pistol because “the word was on the streets” that the man who shot him was looking to “get him,” because Stevens had seen him. The man knew Stevens was light-skinned and drove a white car.

At the beginning of the interview Detective Aquino warned Stevens that Aquino would be giving a full report to his parole officer and that the matter was quite serious as Butler might die. Aquino told him that if he impeded the investigation it would be held against him in the punishment for the firearm possession offense. Aquino suggested that Stevens might even be liable for Butler’s death: “Some witnesses say you had a gun on you and you pulled it out.” Aquino suggested that the man who shot him might say he was firing at Stevens in self-defense. Stevens said that if he had had a gun he would have fired back as his assailant was “in the doorway.”

He then told Detective Aquino that he was smoking a cigarette right outside of the doorway and the man walked right past him through the door. The man was “pissed off” and “saying something in a mad way.” He had a gun in his hand, “down to his side.” The man had “an argument” or “had words with somebody on the inside of the doorway.”

Stevens first said he heard a gunshot, ran, and was shot trying to flee between two cars. Asked directly by Detective Aquino if he saw the man shoot he replied:

“[STEVENS]: I don’t think I actually seen him---actually seen him shoot. I mean, you know, ninety--

“[DET. AQUINO]: Had you drink--

“[STEVENS]: I’m pretty sure (unintelligible)--

“[DET. AQUINO]: Had you been drinking and smoking?”

At the end of the interview Detective Aquino showed Stevens a five-picture photographic lineup. Stevens narrowed the choice down to “one of these two.” He equivocated and then, because Stevens seemed to focus on defendant’s picture, Aquino said: “Okay. So the guy in the middle’s closer?” Stevens replied: “Um, he looks pretty