Opinion
E066632
05-03-2017
THE PEOPLE, Plaintiff and Respondent, v. TERYL DELAVAH MURPHY, Defendant and Appellant.
Teryl Delavah Murphy, in pro. per.; and Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1500367) OPINION APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge. Affirmed. Teryl Delavah Murphy, in pro. per.; and Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury convicted defendant of attempted criminal threats (count 1; Pen. Code, §§ 664, 422) and found true an allegation defendant had personally used a deadly and dangerous weapon in his commission of the offense (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)). Defendant thereafter admitted he had sustained a prior serious felony conviction (§ 667, subd. (a)), a prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)), and three prior prison terms (§ 667.5, subd. (b)). The court sentenced defendant to an aggregate term of incarceration of eight years.
All further statutory references are to the Penal Code unless otherwise indicated.
After defendant's counsel filed a notice of appeal, this court appointed counsel to represent him on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a statement of the case, and identifying four potentially arguable issues: (1) whether the trial court erred in declining to instruct on self-defense as to the count 1 charge; (2) whether trial counsel was ineffective for failing to request a self-defense instruction on the count 1 charge; (3) whether there was sufficient evidence to support the jury's verdict; and (4) whether the trial court abused its discretion in denying defendant's Romero motion.
The court did instruct the jury on self-defense as to the count 2 charge.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Defendant was offered the opportunity to file a personal supplemental brief, which he has done. Defendant contends he acted in self-defense. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
The victim was a transgender woman, a biological male who self-identified as a woman. The victim testified that defendant and the victim had been involved in a sexual relationship for eight months to a year. They kept the relationship secret because defendant was embarrassed about the victim's status as transgender and was afraid if others found out it would tarnish defendant's reputation.
In the recorded 911 call, the victim said they had only engaged in a single sexual encounter, or, ambiguously, perhaps a "three night stand."
A mutual friend of the victim and defendant tricked the victim into revealing the relationship. After the friend found out, she told several people; gossip about the relationship spread "[l]ike wildfire." The gossip created problems between the victim and defendant. The mutual friend teased defendant, calling him a "faggot." Defendant denied the existence of any such sexual relationship between he and the victim.
On November 22, 2014, the mutual friend drove her two grandchildren and the victim over to defendant's residence to drop off a fan. The victim exited the car. Defendant came out of his apartment, walked up to the car, and started screaming and yelling in rage. He asked, "'why did you bring that Bitch here?'"
The mutual friend testified she drove to defendant's residence to pick up a fan.
The friend testified that both the victim and defendant were yelling at one another. At one point the victim may have said, "'you want to fight'" or "'let's go.'"
Defendant told the victim he did not want the victim there. Defendant pulled out a pocketknife, opened it, and began thrusting it at the victim seven or eight times. Defendant said, "'I'm going to cut you up, Bitch. I'm going to kill you, Bitch.'" The victim yelled for help. Defendant said, "'that's not going to help you. They're not going to help you. You'll be dead before one of them gets to you.'"
The victim got back in the car. Defendant jumped onto the side of the car and attempted to stab the victim through the open sunroof. Defendant thrust the knife downward repeatedly as the victim tried to maneuver away from it. One of the friend's grandsons put his arms around the victim and told defendant not to hurt the victim.
The friend started the car, defendant got off, and they drove off. The friend drove to a convenience store where the victim called the police. The People played a recording of the 911 call to the jury. During the 911 call, the victim said, "[A] guy just tried to stab me in front of my—in front of, uh, two children that I have in the car . . . ." "[W]e were on the street in her car with the doors closed and he came out and he was upset because I was in the car and then he proceeded to take out a knife and . . . tried to come through the sunroof . . . ." The victim noted defendant "kept threatening my life." The victim said the car had sustained some scratches.
The friend testified she did not recall any damage to her car.
An officer who spoke to the victim and the friend after being dispatched to the convenience store testified that both described defendant as wielding a pocketknife. The victim said defendant had threatened to kill the victim. The friend reported $800 in damage to the car. A district attorney investigator later spoke with both the friend and her grandson. Both described defendant as wielding a pocketknife.
The People charged defendant by felony information with criminal threats (count 1; § 422), assault with a deadly weapon (count 2; § 245, subd. (a)(1)), and misdemeanor vandalism (count 3; § 594, subd. (a)(1)). The People additionally alleged defendant had personally used a deadly and dangerous weapon in his commission of the count 1 offense, had sustained three prior strike convictions, three prior serious felony convictions, and three prior prison terms.
Defense counsel initially requested self-defense instructions as to the charges in both counts 1 and 2. Defense counsel later removed the request for a self-defense instruction on count 1. The court later granted the People's motion to strike two of the prior serious felony and prior conviction allegations.
Apparently, as part of defendant's plea in those cases, the People had agreed the convictions would not constitute strikes.
The jury convicted defendant of attempted criminal threats as a lesser included offense of the count 1 charge. The jury found defendant not guilty on counts 2 and 3. Defense counsel filed motions to reduce defendant's conviction to a misdemeanor pursuant to section 17, for a new trial, and to strike defendant's prior strike conviction. After a hearing on the motions, the court denied them.
The court imposed the midterm of one year on the count 1 offense, doubled pursuant to the prior strike conviction. The court imposed a consecutive year on the personal use enhancement and a consecutive five-year term for the prior serious felony conviction. The court struck all three prior prison term allegations.
II. DISCUSSION
Although defendant did not testify at trial, defendant attempts to testify via his supplemental brief. Defendant essentially contends insufficient evidence supports his conviction because he acted in self-defense. We disagree.
First, as the court below noted, there is no authority for the proposition that self-defense is a valid defense to either the offenses of criminal threats or attempted criminal threats. Second, defense counsel removed the self-defense instruction from her requested instructions prior to the court's instruction of the jury. Thus, defendant forfeited the issue on appeal. Moreover, the court later ruled, in response to defense counsel's motion for new trial, that she had not been constitutionally ineffective for failing to request the instruction.
Third, the People adduced overwhelming evidence at trial that defendant was not acting in self-defense. The victim and the victim's friend both testified defendant threatened to kill the victim simply because the victim was outside defendant's home. The victim, the victim's friend, and the victim's friend's grandson all testified that defendant repeatedly attempted to stab the victim with a pocketknife. The 911 call reflected the victim had reported defendant threatened the victim's life and attempted to stab the victim. The fact that the victim may have said to defendant at some point, "'you want to fight'" or "'you want to go,'" would not have sufficiently warranted defendant's verbal and physical threats under any theory of self-defense. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.
The victim's friend testified she did not want to testify, she did not want to get anyone in trouble, she did not believe defendant deserved to go to jail, and defendant would not have actually harmed anyone. Only after repeatedly refusing to answer questions and after being ordered by the court to answer, did the victim's friend testify that defendant threatened to kill the victim. --------
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: HOLLENHORST
Acting P. J. MILLER
J.