California Court of Appeals, Third District, Sacramento
FOR PARTIAL PUBLICATION [*]
from a judgment of the Superior Court of Sacramento County,
No. 16FE022616 Russell L. Hom, Judge. Affirmed as modified.
J. Lindsley, under appointment by the Court of Appeal, for
Defendant and Appellant.
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.
Acting P. J.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
Of The Gun Photograph
contends admitting the Instagram photograph of him holding a
handgun violated his right to due process. He asserts it was
improper propensity evidence that prejudiced him. We
“[w]hen the prosecution relies on evidence regarding a
specific type of weapon, it is error to admit evidence that
other weapons were found in the defendant's possession,
for such evidence tends to show not that he committed the
crime, but only that he is the sort of person who carries
deadly weapons.” (People v. Barnwell (2007) 41
Cal.4th 1038, 1056 [trial court erred in admitting evidence
of defendant's prior possession of handgun similar to
murder weapon where prosecutor did not claim such weapon was
actually used in murders]; see also People v. Riser
(1956) 47 Cal.2d 566, 576-577 [trial court erred in admitting
evidence of a Colt.38-caliber revolver found in
defendant's possession two weeks after murders where
evidence showed weapon actually used was a Smith &
Wesson.38-caliber revolver], overruled on other grounds in
People v. Morse (1964) 60 Cal.2d 631; People v.
Archer (2000) 82 Cal.App.4th 1380, 1392-1393 [trial
court erred in admitting evidence of knives recovered from
defendant's residence where knives were not murder weapon
and were irrelevant to show planning or availability of
weapons].) In other words, “ ‘[e]vidence of
possession of a weapon not used in the crime charged against
a defendant leads logically only to an inference that
defendant is the kind of person who surrounds himself with
deadly weapons -- a fact of no relevant consequence
to determination of the guilt or innocence of the
defendant.' ” (Archer, at pp. 1392-1393.)
evidence of weapons not actually used in the commission of a
crime may be admissible when they are relevant for other
purposes. (People v. Cox (2003) 30 Cal.4th 916, 956
[when weapons are otherwise relevant to the crime's
commission, but are not the actual murder weapon, they may
still be admissible], disapproved on other grounds in
People v. Doolin (2009) 45 Cal.4th 390, 421, fn.
22.) The critical inquiry is whether the weapons evidence
bears some relevance to the weapons shown to have been
involved in the charged crimes or is being admitted simply as
character evidence. (People v. Barnwell,
supra, 41 Cal.4th at pp. 1056-1057; People v.
Prince (2007) 40 Cal.4th 1179, 1248-1249.)
problem with defendant's argument is that the photograph
was not propensity evidence but was admitted for two other
purposes, to impeach his statement to the police that he
never owned a gun, and to show that he had possessed a
firearm before the incident that could have been the one
described by his victim. The particular gun defendant
employed to threaten S. K. was never found, but she
identified it as a black gun and drew a picture of it that
resembled a semiautomatic handgun. By showing defendant
holding a black semiautomatic handgun several months before
the incident, the photograph is consistent with defendant
owning a firearm like the one S. K. described, and thus
supports her testimony that defendant robbed her by
threatening her with a firearm. Additionally, it impeaches
defendant's statement to the police that he had not
possessed a gun since he was 15 years old and provides
context to the officer's testimony regarding
defendant's reaction to being shown the photograph.
Defendant's claim that the evidence had no or almost no
relevance is thus without merit. The trial court did not err
in admitting the evidence over his objection.
the evidence was properly admitted, defendant's due
process claim fails as well. (See People v.
Harris (2005) 37 Cal.4th 310, 336 [“the
application of ordinary rules of evidence does not implicate
the federal Constitution”].)
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 ...