Opinion
C084807
09-24-2019
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL PATRICK MURPHY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CF04251)
A jury found defendant Michael Patrick Murphy guilty of assault by means likely to produce great bodily injury, and the trial court found true allegations that defendant served two prior terms in prison. The court sentenced defendant to an aggregate term of six years in state prison.
On appeal, defendant contends the trial court erred in refusing to instruct the jury on the defense of duress. Finding no error, we affirm the judgment.
BACKGROUND
Around 5:00 p.m. on August 28, 2016, defendant and several other inmates in the Butte County Jail stood around a table in the day room of a jail housing unit. A video camera recorded the events that transpired and led to the underlying charges. The victim, carrying his belongings, began walking through the day room toward the housing unit's main door. As he neared the door, the victim abruptly stopped, turned around, and walked the opposite direction; he pressed the nearby emergency button, triggering an alarm. Defendant immediately signaled to another inmate and they began assaulting the victim.
Defendant pummeled the victim with both fists and repeatedly kicked him in the head, neck, and back area. Another inmate, sitting at the same table defendant was previously standing near, nodded to yet another inmate. As defendant stopped hitting and kicking the victim, two more inmates continued the attack. Defendant began to walk away but he quickly returned, placed his hands on one of the assailants, then walked back to his cell.
After walking into his cell for a brief moment, defendant walked back out. He approached one of the other inmate assailants and they appear to high five or fist bump, then hug and slap each other on the back. Defendant made no further contact with the victim. The entire assault lasted approximately two minutes, during which the victim made no defensive moves but lay on the floor, apparently trying to shield himself from the blows.
The correctional officers secured the unit. They found the victim on the floor. He had a cut above his left eye, bruising around his eye, lumps on his head, and he had defecated on himself. The officers escorted him to the medical unit. He was later rehoused in a different unit.
The People charged defendant with assault likely to result in great bodily injury (Pen. Code, § 245, subd. (a)(4)) and alleged he served two prior prison terms (Pen. Code, § 667.5, subd. (b)). Defendant pleaded not guilty. A jury trial on the assault charge began March 20, 2017. At trial, Deputy Brock Stratton of the Butte County Sheriff's Department, testified as an expert on the behavior of Butte County Jail inmates. He also was the deputy assigned to investigate the attack on the victim.
Deputy Stratton narrated the video of the attack on the victim and described the "hierarchy" commonly found in jail housing units. He explained how each housing unit has an inmate who is "in charge" of the unit; that inmate is referred to as the "shot caller" or "key holder." He also said if an inmate did not follow the rules of the shot caller, there would be consequences for that inmate, consequences ranging from a "one-on-one" fight to removal from the unit. Deputy Stratton identified one of the inmates at the table as the possible shot caller for this particular housing unit, noting how he gave a nod to someone after the attack began, appearing to give his approval for that inmate to join in the assault.
According to Deputy Stratton, defendant appeared to be following orders. Deputy Stratton acknowledged he was not working the day of the attack; he only reviewed the video as part of his investigation, and he did not actually know why the attack happened or who ordered it. He did, however, explain that in a housing unit inmates sometimes gang up on a single inmate to impose their own justice. These assaults are typically short in duration but intended to inflict maximum damage on the targeted inmate before correctional officers intervene.
Before submitting the matter to the jury, defendant asked the court to instruct the jury on the defense of duress with CALCRIM No. 3402. The court denied his request.
The jury found defendant guilty as charged and the trial court subsequently found true the allegation that defendant previously served two prior prison terms. The court sentenced defendant to an aggregate term of six years in state prison.
DISCUSSION
Defendant contends the trial court erred in denying his request for an instruction on the affirmative defense of duress. He argues substantial evidence justified the instruction based on Deputy Stratton's testimony that an inmate who refuses the direct order of a shot caller risks retribution, and the jury could have inferred from the evidence that defendant was acting under the shot caller's direction when he assaulted the victim. Thus, he argues, failing to assault the victim could result in retribution.
Duress is available as a defense to defendants who commit crimes " 'under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.' " (People v. Wilson (2005) 36 Cal.4th 309, 331.) To show that the act was not the exercise of free will, a "defendant must show that he acted under an immediate threat or menace." (People v. Petznick (2003) 114 Cal.App.4th 663, 676.) Further, " '[b]ecause of the immediacy requirement, a person committing a crime under duress has only the choice of imminent death or executing the requested crime.' " (Ibid.)
The record here provides no basis for the defense of duress. Even were the jury to infer that defendant was acting at the behest of the unit's shot caller, there is no evidence defendant was in immediate danger should he fail to comply with the shot caller's order. At most, the jury could infer that at some future time, the shot caller may seek retribution against defendant for not complying. "Decisions upholding the duress defense have uniformly involved ' "a present and active aggressor threatening immediate danger." ' [Citation.] A 'phantasmagoria of future harm' . . . to be carried out at some undefined time, will not diminish criminal culpability. [Citation.]" (People v. Petznick, supra, 114 Cal.App.4th at pp. 676-677.) Accordingly, we find no error.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: ROBIE, J. MAURO, J.