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People v. Carkhum-Murphy

California Court of Appeals, Third District, Sacramento

October 21, 2019

THE PEOPLE, Plaintiff and Respondent,


          APPEAL from a judgment of the Superior Court of Sacramento County, No. 16FE022616 Russell L. Hom, Judge. Affirmed as modified.

          Kevin J. Lindsley, 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.


         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.[1] The photograph was posted on defendant's Instagram account on February 7, 2016.

         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.



         Admission Of The Gun Photograph

         Defendant 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 disagree.

         Generally, “[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.)

         However, 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.)

         The 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.[2] 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.

         Since 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”].)


         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 ...

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