Opinion
C085347
10-21-2019
The PEOPLE, Plaintiff and Respondent, v. Mikeel Marcell CARKHUM-MURPHY, Defendant and Appellant.
Kevin J. Lindsley, Pleasanton, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Dina Petrushenko, Deputy Attorney General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts I, III, IV, and V of the Discussion.
Kevin J. Lindsley, Pleasanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Dina Petrushenko, Deputy Attorney General, for Plaintiff and Respondent.
Robie, Acting P. J.
Defendant Mikeel Marcell Carkhum-Murphy was convicted of second degree robbery after a jury trial. The trial court sustained prior strike and serious felony allegations and sentenced him to a nine-year state prison term.
On appeal, defendant contends admitting evidence of prior gun ownership was prejudicial error, the use of prior convictions to impeach him was improper and the product of ineffective assistance of counsel, a juror was erroneously discharged for cause, and cumulative error warrants reversal. He further contends the case should be remanded to allow the trial court to exercise its discretion whether to strike the five-year serious felony enhancement. Agreeing with only the last contention, we shall remand for the court to exercise its discretion regarding the enhancement and otherwise affirm.
BACKGROUND
On October 23, 2016, S. K. was working as the cashier at Chimas Liquor Store on Franklin Boulevard in Sacramento. Defendant entered the store at around 6:00 p.m. He walked around the store a few times and then asked to buy a certain type of cigarettes along with blunt wraps.
After S. K. placed the items on the counter, defendant put a $100 bill there; S. K. told defendant she might not have change for the bill. While S. K. checked the cash register for change, defendant asked if she could break a second $100 bill. When S. K. placed the $88 in change on the counter, defendant took the change and the $100 bill and started walking out of the store, leaving the cigarettes and blunt wraps behind.
S. K. followed defendant out of the store and toward his car. She called out to him, "Hey you forgot your cigarettes. You need to give me the $100 bill. You have that still." Defendant picked up his pace and rushed to his car while loudly and aggressively cursing at her. As defendant got into the driver's seat, he lifted up his shirt, whereupon S. K. saw what she thought was a black gun. After defendant got into the car, he pointed the gun through an open window toward S. K.'s general area. He then drove the car, a gold Buick, very fast out of the store's parking lot, almost hitting her. S. K. called 911 almost immediately.
Octavion Joseph owned the Buick defendant drove on the day of the robbery. He shared the car with his sister, Eneshia Johnson, and her boyfriend, defendant. A police officer contacted Octavion, whose phone had an Instagram account associated with defendant. One of the photographs on defendant's account showed him holding what appeared to be a black semiautomatic handgun. The photograph was posted on defendant's Instagram account on February 7, 2016.
S. K. drew a picture of the gun defendant used to threaten her, which an officer said was of a semiautomatic handgun.
Defendant was interviewed by a police officer on December 6, 2016. He admitted going to the store to buy blunt wraps and cigarettes. Asked about the robbery, he replied, "Yes, I took the money, yes, she gave me the change. I did that. I'm guilty of that. But having a gun or pointing any gun or saying anything to her after that I'm not guilty of." Defendant said he has not had a gun since he was 15 years old. When shown the Instagram photograph of him holding a gun, defendant admitted it was him in the photograph and said he forgot about that photo. Defendant told the officer the gun was not his. According to the interrogating officer, defendant's demeanor changed after seeing the photograph, as he became less talkative and was hesitant to answer questions.
Johnson testified that she and defendant were using Octavion's car to go out of town on the day of the incident. She and defendant stopped at the liquor store to get a few things and change for a $100 bill. She needed the change to pay her cell phone bill because her carrier would not accept $100 bills.
Johnson did not want to go in the store so she sent defendant in when they arrived. He returned to the car a minute or two after entering the store. When defendant returned, there was nothing in his hands and a woman was outside the car, yelling. Johnson could hear the woman say she had the license plate number and was calling the police.
Johnson asked defendant was happened. At first he did not say anything. After they drove away, defendant said he took the $100 bill and the change. He did not have a gun or any other type of weapon. She had never seen defendant with a gun.
DISCUSSION
See footnote *, ante .
Prior Conviction Evidence
The prosecution moved in limine to admit evidence of defendant's prior conviction for robbery to prove intent and common plan or scheme pursuant to Evidence Code section 1101, subdivision (b), and to admit a prior conviction for providing false information to a peace officer to impeach defendant if he testified. The trial court denied the motion regarding the propensity evidence but ruled that both convictions would be admissible to impeach defendant if he testified.
The following exchange took place during defense counsel's direct examination of Johnson:
"Q: And what happened when you stopped at the liquor store?
"A: We stopped at the store. I didn't want to go inside. I sent my boyfriend inside.
"Q: And how long was he gone?
"A: For about a minute or two.
"Q: What happened when he returned?
"A: He came to the car; he got in the car. Uhm, I realized there was nothing in his hands. I seen a woman come outside yelling. [¶] I asked my boyfriend: What's going on. Like, what happened. [¶] And he was just like -- at first was like nothin.’ [¶] I could hear the girl in the back. She's saying: Come back. I got you license plate number. I'm calling the police. [¶] I asked him again like: What's going on? Like what happened in the store? [¶] And when we drove off, probably [a] couple minutes later, he let me know what occurred in the store.
"Q: And what did he tell you?
"A: He told the me that he took the $100 bill and the change."
After the defense rested, the prosecution moved to impeach defendant with the two prior convictions. The prosecutor argued that, by eliciting defendant's statement to Johnson, the defense bolstered the credibility of defendant's statement to the interrogating officer that he stole from but did not rob S. K. According to the prosecutor, since the defense was bolstering the credibility of defendant's statement to the officer, impeachment was allowed under Evidence Code section 788 and People v. Little (2012) 206 Cal.App.4th 1364, 142 Cal.Rptr.3d 466. Defense counsel objected, arguing the prosecution was not prejudiced by Johnson's testimony since the prosecution already introduced a similar statement through defendant's police interview and the evidence should be excluded under Evidence Code section 352.
The trial court admitted the prior convictions to impeach defendant. It found defendant's statement to Johnson was relevant to his defense "because there is no acknowledgment of the presence of the gun. And that statement is consistent, right, with -- there is nothing inconsistent about the first statement as it relates to the statement he gave a month and a half later."
The trial court also ruled the prior convictions would be sanitized. As a result, the defense and prosecution reached a stipulation, which was read to the jury as follows: "Mikeel Murphy was convicted of a felony theft offense in 2005. [¶] And Mr. Murphy gave false information to a police officer in 2011." The jury was later instructed that it could consider a prior conviction only to evaluate a witness's credibility.
Defendant contends the prior convictions should not have been admitted because his statement to Johnson was inculpatory rather than exculpatory and allowing inculpatory statements to be impeached would give prosecutors unfettered power to introduce character evidence against defendants who do not testify. He further contends trial counsel was ineffective in eliciting the testimony from Johnson that allowed the impeaching convictions to be introduced. He finds it was an abuse of discretion to admit the convictions over his Evidence Code section 352 objection, and admitting the priors prejudiced him.
Evidence Code section 1202 provides, in relevant part: "Any other evidence offered to attack or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness at the hearing."
"Any prior felony conviction of any person in any criminal proceeding ... shall subsequently be used without limitation for purposes of impeachment ... in any criminal proceeding." ( Cal. Const., art. I, § 28, subd. (f)(4).) "In People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111 ... , we held that ‘prior felony convictions’ within the meaning of article I, section 28, subdivision (f) are such as necessarily involve moral turpitude, i.e., a readiness to do evil. [Citation.] [¶] In Castro , we also held that trial courts retain their discretion under Evidence Code section 352 to bar impeachment with such convictions when their probative value is substantially outweighed by their prejudicial effect. [Citation.] We made plain that in exercising their discretion, trial courts should continue to be guided -- but not bound -- by the factors set forth in People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1 ... , and its progeny." ( People v. Clair (1992) 2 Cal.4th 629, 654, 7 Cal.Rptr.2d 564, 828 P.2d 705.) In exercising its discretion under Evidence Code section 352, the court must consider whether the prior conviction reflects adversely on the witness's honesty or veracity, its nearness or remoteness in time, its similarity to the present offense, and the potential effect on the defendant's failure to testify. ( People v. Mendoza (2000) 78 Cal.App.4th 918, 925, 93 Cal.Rptr.2d 216.) The trial court has broad discretion in determining whether to admit or exclude evidence under Evidence Code section 352 and its ruling will not be overturned absent an abuse of discretion. ( People v. Ramos (1997) 15 Cal.4th 1133, 1170, 64 Cal.Rptr.2d 892, 938 P.2d 950.)
Impeaching a defendant's hearsay statements was addressed in Little and People v. Jacobs (2000) 78 Cal.App.4th 1444, 93 Cal.Rptr.2d 783. In Jacobs , a prosecution for receiving stolen property, the defendant sought to introduce his own statement to the investigating officer that he had purchased the property in question from an acquaintance. ( Id. at pp. 1447-1448, 93 Cal.Rptr.2d 783.) The defendant did not testify at trial. ( Id. at p. 1446, 93 Cal.Rptr.2d 783.) The trial court allowed the prosecution to impeach the defendant's hearsay statement with evidence of the defendant's prior convictions. ( Id. at pp. 1448-1449, 93 Cal.Rptr.2d 783.)
The Court of Appeal agreed, holding Evidence Code sections 788 and 1202, taken together, provide that evidence of a prior felony conviction is admissible to impeach a criminal defendant's hearsay declaration. ( People v. Jacobs, supra , 78 Cal.App.4th at pp. 1449-1450, 93 Cal.Rptr.2d 783.)
Little found Jacobs well-reasoned and followed it. ( People v. Little, supra , 206 Cal.App.4th at p. 1367, 142 Cal.Rptr.3d 466.) As in Jacobs , the defense presented exculpatory hearsay statements by the defendant, which the prosecution impeached with the defendant's prior felony conviction. ( Little , at pp. 1373-1374, 142 Cal.Rptr.3d 466.) The Court of Appeal noted that, as in Jacobs , had the defendant chosen to testify, the prosecution would have been allowed to impeach him with the prior conviction. ( Little , at p. 1375, 142 Cal.Rptr.3d 466.) It asked: "Should he have been allowed to avoid a challenge to his credibility, and undercut the operation of section 788, by the simple device of putting on exculpatory hearsay evidence without taking the witness stand?" (Ibid. ) The Little court answered, "no": "In short, Little attempted to outmaneuver the prosecution by getting in evidence without testifying. He complains when, in the end, the prosecution outmaneuvered him by selecting the option of presenting prior conviction evidence instead of objecting to the admission of hearsay evidence. What's sauce for the goose is sauce for the gander. Little cites no authority for the proposition that the prosecution can only avail itself of the remedy that favors the defendant." ( Id. at p. 1377, 142 Cal.Rptr.3d 466.)
Defendant claims Little and Jacobs do not apply because his statement to Johnson, that he took the $100 bill and the change, is inculpatory. Although this statement admits to theft, it was part of two pieces of exculpatory evidence. Defendant told the police that he took the $100 bill and the change, but he did not have and did not use a gun. Johnson's testimony about defendant's actions after returning from the liquor store are consistent with this statement. She related that defendant admitted taking both the change and the $100 bill, and that defendant did not have a gun that day. Both defendant's statement to the police and Johnson's testimony are exculpatory, by asserting defendant committed the lesser included offense of misdemeanor theft but did not commit the serious and violent felony of robbery. (See People v. Webster (1991) 54 Cal.3d 411, 443, 285 Cal.Rptr. 31, 814 P.2d 1273 ["Theft is a lesser included offense of robbery, which includes the additional element of force or fear"].)
While Johnson's testimony is exculpatory, the exculpatory part of her testimony, that defendant did not have a firearm, was based on her observation rather than any statement by defendant. Defendant's statement to the police that he did not have a weapon was an out-of-court exculpatory statement that would be subject to impeachment. Although this case differs from Little and Johnson because defendant's hearsay statement was admitted by the prosecution, that distinction has no bearing on the admissibility of impeachment evidence.
Since the convictions were admissible to impeach defendant's statement, any error in ruling that they were admissible to impeach Johnson's testimony is irrelevant, as we review the correctness of the trial court's decision rather than its reasoning in getting there. (People v. Dawkins (2014) 230 Cal.App.4th 991, 1004, 179 Cal.Rptr.3d 101.)
"The general rule against impeaching one's own witness, however, was abrogated by the Legislature's passage of Evidence Code section 785 in the same year it passed Evidence Code section 1202. Evidence Code section 785 provides: ‘The credibility of a witness may be attacked or supported by any party, including the party calling him.’ Significantly, Evidence Code sections 785 and 1202 were not only passed in the same year; they were passed as part of the same bill. (See Stats. 1965, ch. 299, § 2, p. 1297, operative January 1, 1967.) ‘ "Both Acts were passed upon the same day and relate to the same subject matter. They are, therefore, according to a well settled rule of interpretation, to be read together, as if parts of the same Act ...." [Citation.]’ [Citations.] Under these circumstances, we may safely infer that if the Legislature had intended to make Evidence Code sections 785 and 1202 mutually exclusive, it would have expressly done so. Read together as a single statute, these two sections allow a prosecutor to use a prior inconsistent statement to partially impeach a hearsay statement the prosecutor had previously introduced." ( People v. Osorio (2008) 165 Cal.App.4th 603, 616-617, 81 Cal.Rptr.3d 167.)
The California Supreme Court has found Osorio reached the right result. ( People v. Blacksher (2011) 52 Cal.4th 769, 807-808, 130 Cal.Rptr.3d 191, 259 P.3d 370.) So do we. While it addressed impeachment through prior inconsistent statements, its reasoning applies equally to impeachment through a prior conviction, which, like a prior inconsistent statement, is admissible under Evidence Code section 1202.
Defendant's statement to the police was properly impeached through the Instagram photograph of him holding a semiautomatic handgun. Since the prior convictions are a different type of impeaching evidence, it was not redundant and therefore less cumulative than if the same type of evidence had been introduced. While defendant's prior convictions could not be used to impeach Johnson's testimony, that testimony lent greater relevance to the prior convictions by bolstering the exculpatory out-of-court statement by defendant that the convictions were admitted to impeach.
Although defense counsel's examination of Johnson induced the prosecutor to get the impeaching convictions admitted, we reject defendant's claim that counsel's questioning constituted ineffective assistance. The case that defendant stole the money from the liquor store was strong, as S. K. identified defendant as the perpetrator and defendant admitted stealing the money to the police. In this context, admitting the theft but claiming it was not robbery because defendant did not use a gun was a valid choice. Bolstering defendant's statement to that effect with Johnson's testimony was a proper tactical choice that we will not second-guess in resolving defendant's ineffective assistance claim. (See People v. Mai (2013) 57 Cal.4th 986, 1009, 161 Cal.Rptr.3d 1, 305 P.3d 1175 ["When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance"].)
And a partially successful tactic, since the jury found a personal use of a firearm allegation not true.
Defendant's theft conviction involves moral turpitude and dishonesty ( People v. Wheeler (1992) 4 Cal.4th 284, 297, 14 Cal.Rptr.2d 418, 841 P.2d 938 ) as does his conviction for providing false information to a police officer. The convictions were relevant to impeach his inculpatory statement that was bolstered by Johnson's testimony. Any prejudice was minimized by the fact that the evidence referred only to the bare fact of the convictions with nothing more. It was not an abuse of discretion to admit the prior convictions.
See footnote *, ante .
DISPOSITION
The matter is remanded to the trial court to consider exercising its discretion under sections 667 and 1385 to strike the prior serious felony conviction enhancement. After exercising this discretion, if appropriate, the trial court is directed to prepare an amended abstract of judgment reflecting its judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur:
Butz, J.
Hoch, J.