United States District Court, E.D. California
FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF
PETITION FOR WRIT OF HABEAS CORPUS
Geoff Edwin Murphy is a state prisoner, represented by
counsel, proceeding with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In the petition,
Petitioner raises the following claims for relief: (1)
instructional error; (2) the California Court of Appeal's
improper refusal to consider the forfeited instructional
error claim; (3) ineffective assistance of counsel; (4)
erroneous limitation of expert testimony; and (5)
insufficient evidence to sustain first-degree murder
reasons discussed herein, the undersigned recommends denial
of the petition for writ of habeas corpus.
7, 2014, Petitioner was convicted by a jury in the Kern
County Superior Court of first-degree murder (count 1),
making criminal threats (count 2), and two counts of elder
abuse (counts 3, 4). (2 CT 456, 464, 466). Petitioner was
sentenced to an indeterminate term of 25 years to life plus
25 years on count 1, and a determinate term of 53 years and 8
months on counts 2, 3, and 4. (3 CT 638, 640). On July 14,
2016, the California Court of Appeal, Fifth Appellate
District affirmed the judgment. People v. Murphy,
No. F069891, 2016 WL 3885051, at *15 (Cal.Ct.App. July 14,
2016). The California Court of Appeal denied rehearing on
July 25, 2016. (LDs 5, 6). Petitioner filed both a petition
for review and a state habeas petition in the California
Supreme Court. (LDs 7, 9). The California Supreme Court
summarily denied both petitions on October 19, 2016. (LDs 8,
December 28, 2016, Petitioner filed the instant federal
petition for writ of habeas corpus. (ECF No. 1). Respondent
has filed an answer to the petition, and Petitioner has filed
a traverse. (ECF Nos. 12, 15).
is the son of James and Barbara Murphy. He grew up in
Bakersfield, took some college courses there after graduating
from high school, and served in the United States Army from
2003 to 2005 before receiving a general discharge under
“other than honorable” conditions. He later
sought treatment for alcohol dependency, married a woman whom
he met through Alcoholics Anonymous, and relocated to
Vallejo. In early 2009, appellant experienced what is
described in the record as a significant “psychotic
episode” and was hospitalized for mental health care.
He thereafter received psychiatric treatment on a regular
basis from March 2009 through June 2013.
2013, after separating from his wife, appellant moved back to
Kern County to live with his parents. According to Barbara
Murphy, appellant showed signs of depression during the
initial weeks of his stay, e.g., crying and expressing regret
for having wasted much of his adult life. With the exception
of a one-month stint working as a security guard at an
amusement park, he had spent the past several years
unemployed and living off of his wife's disability
16, 2013, appellant's father took him to a mental health
facility in Bakersfield known as the Mary K. Shell Center.
The purpose of this visit was to find a local doctor who
could prescribe medication for appellant's psychiatric
conditions. Appellant returned to the same facility on July
30, 2013, but it is unclear from the record what services he
received on that date, if any. A former roommate in Vallejo
told Barbara Murphy that appellant had obtained a month's
supply of medication before leaving for Bakersfield, but Mrs.
Murphy was not aware of him taking any psychotropic medicine
while he was living with her that summer.
depression improved toward the end of July, but the change
coincided with new patterns of delusional and paranoid
behavior. He claimed that the Department of Homeland Security
was recruiting him for an analyst position and had offered
him a $25, 000 signing bonus to accept the job. Appellant
also believed the government was monitoring him through
cameras and by aerial surveillance.
30, 2013, shortly before midnight, James Murphy made a 911
call for police assistance due to appellant's persistent
interrogation of his mother about a conspiracy theory
involving a photograph taken of him as a baby. The dispatcher
advised there would be a delayed response because the police
had other priorities. At 2:18 a.m., James Murphy contacted
law enforcement to cancel his earlier request, since
appellant had by then calmed down and the family was ready to
go to sleep.
behavior worsened during the first week of August. He began
to act as if his parents' home was a military
installation and he was the commanding officer, claiming that
he outranked his parents and thus had control over the
premises. The assertion was nonsensical for a variety of
reasons, not the least of which being that, in contrast to
appellant's inglorious military experience, his father
had achieved the rank of Major over the course of a 23-year
career in the Army. Nevertheless, appellant posted a list of
“rules” advising his parents of things they were
forbidden from doing in their own house without his
August 8, 2013, appellant's parents secretly met with an
attorney to start the process of obtaining a restraining
order and having appellant removed from their home. The
lawyer agreed to file the necessary paperwork, but allegedly
told Mr. and Mrs. Murphy it was doubtful that a judge would
rule in their favor because appellant had not physically
assaulted them. Later that evening, the couple's niece,
Gwenn Maher, showed James Murphy how to make video recordings
on his iPhone. Together they devised a plan to
surreptitiously record appellant's behavior, with the
goal of being able to provide the authorities with evidence
of his dangerousness. Mr. Murphy implemented the plan
immediately, recording his niece as she left the house and
keeping the device running while he and his wife watched
television. The recording lasted for over 33 minutes, but
appellant did not enter the room during that time.
August 10, 2013, James Murphy captured video footage of
appellant berating his mother for refusing to drive him to
the grocery store. Mr. Murphy allowed the argument to go on
for approximately seven minutes before shooting appellant
with a nine-millimeter handgun, which had theretofore been
concealed on or near his person. Barbara Murphy called 911
and told the dispatcher, “My husband just shot my
son.... My son is crazy. He's manic depressive [and]
he's off his medications.” Meanwhile, appellant
overpowered his father, took control of the gun, and killed
Kern County District Attorney charged appellant by
information with premeditated first degree murder (Pen. Code,
§§ 187, 189; count 1), making criminal threats
against Barbara Murphy (§ 422; count 2), and committing
acts of elder abuse against both of his parents (§ 368,
subd. (b)(1); counts 3 & 4)). An enhancement allegation
was included with the murder count for personal and
intentional discharge of a firearm resulting in death (§
12022.53, subd. (d)).
pleaded not guilty to all charges, but apparently made no
attempt to raise an insanity defense. The case went to trial
in June 2014.
prosecution built its case around a 28-minute video recorded
on the morning of August 10, 2013. As mentioned, the subject
incident was documented on an iPhone, which James Murphy had
placed in an upright position behind where he was sitting
when the events unfolded. The video shows Barbara Murphy,
then 69 years old, lounging in a recliner located across from
Mr. Murphy and to his left-hand side. The camera remains
stationary during most of the recording, facing toward the
interior entryway of the house, and the angle is just wide
enough to show the front of Barbara Murphy's chair. She
spends much of the video sitting or reclining, so viewers
often see only her legs.
Murphy had promised to take appellant to the grocery store
earlier that morning, but asked him to wait for one hour
while she rested. The defense would later argue Mrs. Murphy
had no real intention of driving him to the store, but agreed
to do so knowing he would become angry and lash out when she
went back on her word. In any event, the video begins with
appellant's parents having a private conversation in
their living room:
Barbara: Do you have a plan?
James: I don't- Barbara: How do you want to proceed on
Barbara: How do you want to proceed on this?
James: He's got to physically assault one of us.
Barbara: No, he doesn't.
James: Well, there's no way-other way to stop it other
than when you-by calling 9-1-1, yeah. We hope.
Barbara: They- James: They still have to get here before he
Barbara: I would like you to record if you could. Alright?
James: I have it on.
Barbara: Okay. Because if they come out and he's
reasonable we just look like we're stupid.
Barbara: If we don't record something and he does not
assault us we're going to look stupid if we don't
have a recording to show what's going on.
Following this discussion, Mr. and Mrs. Murphy briefly chat
about unrelated topics and then remain silent for nearly
eight minutes. Appellant can be seen walking in and out of
the room during this interval. It is apparent from the video
that he is a large and physically fit man. Elsewhere in the
record, appellant is described as being 6'2” and
weighing between 220 and 230 pounds. James Murphy was similar
in size, standing at 6'1” and weighing 206 pounds,
but the age difference between father and son was more than
Appellant's argument with his mother occurs while Barbara
Murphy is seated in her recliner and appellant is standing in
front of her, though he sometimes paces about the room. The
following excerpts contain most of their seven-minute
conversation, with slight modifications to the transcript for
purposes of readability and annotations regarding the
parties' respective movements. Appellant generally speaks
in a conversational tone, but there are times when he
suddenly screams at the top of his voice. The latter
instances are denoted with capitalized type, both here and in
the original transcript.
Appellant: About ready?
Appellant: Well, uh, you want to go?
Appellant: You don't want to go?
Barbara: Geoff, I'm not feeling good.
Appellant: Alright, so I'll just go.
Barbara: You're not going to just go.
Appellant: How the fuck are you going to tell me that? I want
to go. And you guys can just stay here and do your thing, but
I need some things that I need to take care of.
Barbara: Like what?
Appellant: None of your fucking business. How about the
groceries? How about a couple of things? I don't have
much time here. I don't. [Turns to address James Murphy]
Care to weigh in dad? Father? So- Barbara: Your dad said-
Appellant: -anyway- Barbara: Dad said to make a list-
Appellant: I['ve] got a list. You're not going to get
my list. I'm going to go. So either you're up now or
Barbara: I want to- Appellant: I'm not going to sit here
and do this. This [-] you're [not a] child. You're
older than me, okay. You know what the fuck I'm saying,
it's coming out [of my mouth]. We're going. Now. Me
and you.... Five minutes.
Barbara: I'm not going to be ready.
Appellant: Well then give me the keys ‘cause I'm
Barbara: No, I'm not giving you the keys.
Appellant: Well then I'm calling the fucking police.
Barbara: Call the police.
Appellant: You ready for that?
Appellant: Alright good. Oh, that's right you guys have
already tried. Didn't, didn't work out did it?
[Apparently referring to the 911 call made on July 30, 2013.]
Barbara: Yeah, you probably aren't going to get any
further than I did.
Appellant: Oh, isn't that interesting. You think so?
Appellant: Yeah, so you about ready?
Appellant: [Unintelligible statement.] BITCH THIS IS A
[James Murphy leans forward in his chair and reaches toward
the lower middle section of his back with his right hand.]
Barbara: No, it's not.
Appellant: YOU DO WHAT I SAY! ... Why are you being so
fucking combative? [Voice becomes calm again.] I see
you're tired [and] not feeling well, why don't you
just give me [the] car and give me a few bucks and I'll
go take care of it.
Barbara: Geoff we had such a nice day yesterday.
Appellant: I don't give a shit. I hope it was wrecked
with thoughts about how fucking terrible this can continue to
be, should you continue on like this. Let's go.
Barbara: Geoff- Appellant: GEOFF WHAT?! Let's go.
[James Murphy sits back in the chair and crosses his legs.]
Appellant: That's right, you've got an order. You
want to disobey the whole fucking United States right now?
Barbara: Yeah, I'd like to see it in writing.
Appellant: [Raising his voice again] I have it in writing
bitch. It's right here.
Barbara: Well go show me.
Appellant: You're not going to get anything, ‘show
me, ' this ain't the “Show Me State!”
[Barbara Murphy finds this comment amusing.]
Appellant: Yeah, that's a good one actually.
Barbara: [Chuckles] It was quite funny. I, I don't know
why you can't wait.
Appellant: Why do I need you? You fucking forgot, all you are
right now is [a] goddamn checkbook.
Barbara: Well that might be- Appellant: [Mimicking his
mother] “That might be.” You don't have word
edgewise. You want me to shut you down totally? [Raising his
voice] Shut up. You're the one I got to get through [to],
Dad already gets it. He's ex-military so he knows what to
do. He knows fucking better. You don't do what you're
doing right now to me.
Barbara: What am I doing?
Appellant: I'm giving you a fucking order bitch. That
means let's get up and go. That either means when I said
five minutes I'm ready to go and I saw your ass standing
over here-at or- Barbara: Excuse me.
Appellant: -or what?
Barbara: You already and I already agreed ...