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People v. Murphy

December 28, 2009


APPEAL from the Superior Court of San Bernardino County. Bryan Foster, Judge. Affirmed. (Super. Ct. No. FSB060016).

The opinion of the court was delivered by: Miller J.



A jury convicted defendant Melissa Kay Murphy of procuring or offering false information for filing (count 1—Pen. Code, § 115, subd. (a)), insurance fraud (false claim) (count 2—Pen. Code, § 550, subd. (a)(4)), and insurance fraud (false statement) (Pen. Code, § 550, subd. (b)(1)). The court granted defendant three years of formal probation on various terms and conditions including service of a 180-day jail term. On appeal, defendant contends she was improperly convicted of the felony offense of procuring or offering false information for filing in count 1 because that offense was preempted by more specific recently enacted misdemeanor offenses. In addition, defendant maintains that the trial court erred in failing to give a sua sponte jury instruction in connection with count 2 that the jury was required to find defendant was not entitled to receive payment for the loss she made a claim for. We affirm the judgment in full.


San Bernardino Deputy Sheriff Jay Staviski was on patrol in the mountainous region of San Bernardino County on March 5, 2006, when, at 2:47 a.m., he came across a gold 2001 Chevrolet Malibu on Highway 18 that was "smashed into the side of the hill." The vehicle had sustained extensive damage, with both airbags deployed. Deputy Staviski checked the car and surrounding area to see if anyone was hurt, but could not find anyone. There was no key in the ignition. Deputy Staviski provided dispatch with the license plate number on the vehicle and dispatch provided him with the name and address of the registered owner of the car. Deputy Staviski drove to the address provided.

Defendant, the registered owner of the vehicle, answered the door. Upon contact, defendant had a phone in her hand, and reported to Deputy Staviski that she had been attempting to obtain the number for the California Highway Patrol (CHP) in order to report her vehicle as stolen. Defendant had blood on her face, a small laceration on her nose, and blood on her right hand. Defendant informed Deputy Staviski that she had injured herself at work. Deputy Staviski drove defendant and her mother to the vehicle.

Defendant informed Deputy Staviski that she had met a friend at a bar in Running Springs around 11:00 p.m. the preceding evening. They left the bar around 2:00 a.m. and found the vehicle missing. Defendant reported that she attempted to go back into the bar to call the CHP to report the vehicle as stolen; however, the bar was already closed. Defendant's cell phone had a low battery and poor reception, so she was also unable to report the vehicle stolen using her cell phone. Defendant and her friend left the bar for defendant's residence and, on the way, discovered her vehicle on the side of the road; however, they did not stop, but continued on. Defendant reported that all her vehicle keys were accounted for.

Deputy Staviski took a stolen vehicle report from defendant on CHP form No. 180. After filling out and filing the form, the data contained therein was entered into a nationwide stolen vehicle system, which allowed law enforcement across the country to run a vehicle's license plate number or Vehicle Identification Number (VIN) to determine whether a vehicle had been stolen. After Deputy Staviski completed the form, defendant signed it under penalty of perjury.

Deputy Staviski noticed a few things regarding the vehicle and defendant's story which "struck [him] as odd." Deputy Staviski noted, "that the driver's seat was moved all the way forward, which would indicate somebody small was driving the vehicle." Defendant appeared to be five feet one inch tall and 120 pounds. The ashtray of the vehicle was open and in plain view. It contained cash including a $10 bill and other denominations, which Deputy Staviski believed was strange because "if somebody is going to take the time to steal a car, they're going to steal the cash that's in view." Deputy Staviski noted that there was no damage to the ignition or loose wires beneath the dashboard. In many recovered stolen vehicles, the ignition has been "punched," i.e., "some foreign object [has been used] to punch the ignition out, remove a section of it so [the thief] can stick some form of object in there to start the vehicle." A CHP station was located on Highway 18 between the bar and defendant's home; defendant had not stopped at that station to report the vehicle as stolen on her way home.

Defendant informed Deputy Staviski that she had imbibed alcohol while at the bar; however, she did not exhibit any objective symptoms of intoxication. He did not perform any field sobriety tests, chemical tests, or investigate the accident as the result of driving under the influence.

Defendant's friend, Lisa Barbato, testified that she called defendant from a pay phone on the night of March 4, 2006, and they agreed to meet at the Fireside Inn Bar in Running Springs. Barbato arrived sometime between 11:00 p.m. and midnight; defendant arrived 15 to 20 minutes thereafter. They drank, played pool and danced. Defendant drank one or two beers while Barbato drank a couple of beers. Defendant left the bar first. She reentered the bar and informed Barbato that she could not find her car. Defendant asked Barbato for a ride home. Defendant did not call the police from the bar. They left the bar together sometime after 2:00 a.m. The door behind them locked so that they could not get back in to call the police.

Barbato drove defendant home. They did not stop at the CHP station, which was located between the bar and defendant's home, because Barbato did not think about it. On the way they came across defendant's vehicle. They pulled over and spent between four and five minutes looking through it. Barbato's cell phone was not working so they could not call the police at that time. They left the site to head straight for defendant's house. When they arrived, defendant appeared to call the CHP.

The responding officer, Deputy Collins, interviewed Barbato and she related a story substantially identical to that to which she testified. Barbato was later interviewed by district attorney investigators to whom she again related the same version of events. Investigator Smith informed Barbato he had a videotape of Barbato and defendant getting into defendant's car. He showed her the videotape, but refused to play it for her because he said it needed to be enhanced. Barbato testified that she continued to relate the same version of events at least 10 times. Barbato informed Smith that she had to go to work. Smith offered her a ride; however, since she was a delivery driver, she needed her vehicle and declined the offer. Smith informed Barbato that she could not leave until they were done questioning ...

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