People v. Murphy CA3

Filed 2/26/16 P. v. Murphy CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C076844

Plaintiff and Respondent, (Super. Ct. No. 12F08127)

v.

CARL FREDERICK MURPHY,

Defendant and Appellant.

The trial court instructed the jury on felony murder, but although defendant Carl Frederick Murphy was charged with a felony-murder special circumstance, the court did not instruct the jury on the special circumstance. The jury found defendant guilty of first degree murder and found the felony-murder special-circumstance enhancement to be true. The Attorney General concedes instructional error but contends it was harmless beyond a reasonable doubt. We agree and affirm the judgment. FACTS Defendant argues on appeal, as he did throughout the trial, that the prosecution’s case rested on the testimony of Naquinne Andrews, a liar and perjurer who was granted

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immunity despite the fact he gave eight different versions of the facts, including a perjured account at the preliminary hearing. It is true the jury became well acquainted with Andrews’s lack of credibility. Nevertheless, defendant does not challenge the sufficiency of the evidence on appeal. Consequently, we need not explore the nuances of each version of the facts Andrews recounted during the investigation, preliminary hearing, and trial. Suffice it to say, his story changed with each telling. The version Andrews gave at trial provides a sufficient factual context for our discussion of the instructional error. Andrews and defendant are both parolees, and they both attended the same parolee reentry program. Defendant has tattoos on his face. On October 22, 2012, defendant called Andrews to ask him if he had three pounds of marijuana, and defendant told Andrews he had $5,000. Andrews was living with his half brother at the time, and Andrews’s girlfriend had been living with them for about a week. She had not seen large amounts of marijuana in the apartment. During several phone calls, defendant and Andrews agreed to meet. Andrews drove his girlfriend’s car to the meet-up. There were two pounds of marijuana in an open duffel bag in the back seat and another bag of marijuana in a plastic bag on the floor by his brother, who was riding in the front seat as a passenger. As they arrived at their destination but before they had parked, defendant and another man jumped into the back seat of the car. Defendant pulled out a gun and Andrews’s brother tried to disarm him. The other man grabbed the duffel bag and ran. Defendant fired four or five shots and then jumped out of the car and ran in the direction of his partner. Andrews was not sure if his brother was still alive. He panicked and drove to their apartment, waking up his girlfriend from a nap. She drove them to the hospital, where Andrews’s brother died. Andrews gave his first fabricated account of what had happened when interviewed by the police. The defense was factual innocence. Defense counsel argued that Andrews had set up a drug deal to rob his own brother. He insisted that Andrews had accused defendant, a