Opinion
2d Crim. No. B290282
02-04-2020
THE PEOPLE, Plaintiff and Respondent, v. CLAY MARTIN BURT MURRAY, Defendant and Appellant.
David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Blythe J. Leszkay and Shezad H. Thakor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1488969)
(Santa Barbara County)
Clay Martin Burt Murray appeals a judgment following conviction of first degree murder with additional findings of a simple kidnapping special circumstance and personal firearm discharge resulting in death. (Pen. Code, §§ 187, subd. (a), 189, 190.2, subd. (a)(17)(B), 207, subd. (a), 12022.53, subd. (d).) We modify the judgment to strike the suspended parole revocation restitution fine, but otherwise affirm.
All statutory references are to the Penal Code unless otherwise stated.
This appeal concerns the shooting death of Rebecca Yap, a woman who was friendly with Murray and to whom he provided methamphetamine. Murray struck Yap repeatedly with a pool cue and forced her from his living room to his bedroom where he retrieved a handgun from a safe and shot her. Murray did not seek medical assistance for Yap and claimed to responding police officers that she was an intruder who had tried to rob him. Some of Murray's actions were captured by his video surveillance cameras and the recordings, including audio, were played at trial.
The exhibits containing the recordings were transmitted to this court and we have reviewed them.
Murray raises arguments regarding the trial court's instructions concerning kidnapping and the court's failure to instruct regarding a heat-of-passion killing. He concedes that he failed to object to some of these asserted errors and, in a companion petition for writ of habeas corpus, argues that he did not receive the effective assistance of counsel. We find no merit to these arguments.
FACTUAL AND PROCEDURAL HISTORY
Events Preceding the Murder
Murray and Yap were recent friends who used methamphetamine together. In October 2014, Murray suspected that Yap stole money and a cellular telephone from him. He asked his friend Nicole Kannegiesser for assistance in recovering the money by either stealing from Yap or "beat[ing] her up." Kannegiesser refused and later introduced Murray to Michael Guevara to "beat [Yap] up." On another occasion, Murray picked up Kannegiesser and asked her to assist in finding Yap. Murray had a stick with "pokey nails" inside his vehicle. Kannegiesser refused.
In the evening of October 9, 2014, Yap visited Murray who then texted Guevara requesting "help." Yap left Murray's residence shortly thereafter, however. Murray then went to the safe in his bedroom and removed a .45 caliber firearm. Murray again texted Guevara, stating: "Hook, baited and set. Too much weight for me to reel in by myself. I just need [you] to do the heavy lifting for me. Are you available for this paid employment tonight?" Yap later returned to Murray's residence. Again, Murray texted Guevara, stating: "[Yap] and two [others] are here now." Guevara responded and asked whether the two others were guys or girls.
After Yap's return, she went to a room inside Murray's residence, took an item, placed it inside her clothing, and then quickly left. Murray entered the room and searched for his drugs. He texted Yap and stated that he was unable to find his scale and drugs and noticed that she left quickly. Yap responded that the vehicle that she was in was now stopped by police officers, an assertion that was untrue.
Murray continued to text Yap, informing her that his surveillance cameras captured her theft of his drugs. Murray also texted Guevara requesting that he "take care of [his] business today." In further texts to Yap, Murray warned her to return his property or "pay the consequences." He also threatened that she was "lucky" to be "fucking walking."
The day prior to Yap's murder, Murray's surveillance camera captured him pointing a rifle at an imaginary person, retrieving a pair of handcuffs, and placing a pool cue by a table in his living room.
Yap's Kidnapping and Murder
During the evening of October 13, 2014, Murray and Yap used drugs together and prepared dinner at his residence. They then began to argue concerning Yap's cellular telephone. Yap stated that she was going to leave, but Murray threatened that she was "not going fucking anywhere." Murray then followed Yap and repeatedly struck her with the pool cue. He also demanded her telephone and forced her into the bedroom. Yap then walked from the living room to the bedroom, a distance that consumed approximately 20 seconds of recording time.
In the bedroom, Murray ordered Yap to lie on the bed, but she sat there instead. He tossed her the handcuffs and threatened to "beat the fuck [out of her]" if she refused to handcuff herself. Yap refused and Murray struck her again with the pool cue. Yap screamed for help.
Murray then opened his safe, withdrew his handgun, and stated, "Freeze." He threatened to shoot Yap if she did not get on her hands and knees. Yap yelled for help and pleaded for Murray to allow her to leave.
Yap then seized the pool cue and threatened to stab Murray who repeatedly ordered her to drop the cue. Murray then fired the handgun and stated, "Next one is [in] you." He fired the handgun again, striking Yap in the abdomen. Murray informed her that he was calling for police assistance, but he did not.
Yap left Murray's residence, went outside, shouted that Murray shot her, and called for help. Murray remained inside but shouted, "Freeze! Stop or I will shoot! Halt! Halt! Intruder! Halt!" A neighbor asked Murray if he needed help and Murray asked him to telephone for police assistance. Yap remained in Murray's backyard and repeatedly shouted, "Hurry!"
Lompoc police officers soon arrived and ordered Murray from his residence. As he walked outside, he stated, "She tried to rob me." Murray then stated that Yap beat him with a club, attempted to stab him with a knife, and attempted to rob him. In response, he shot her when she charged him. This statement was recorded with a police officer's cellular telephone and played at trial.
Yap's Death and the Aftermath
Police officers found Yap in Murray's backyard with her foot pinned under a chain link fence. She stated that Murray shot her because she was trying to leave. Officers freed Yap from the fence but she died at the hospital shortly thereafter.
Forensic examination of Yap's body revealed that she died from a gunshot wound to the abdomen, fired from a distance between 12 and 24 inches. Laboratory testing revealed the presence of methamphetamine in her blood.
Police officers arrested Murray. Laboratory testing performed shortly after his arrest revealed that his blood was positive for the presence of methamphetamine, opiates, and marijuana.
Police officers searched Yap's purse which was in the living room of Murray's residence. They found a department store credit card inside registered to Murray.
At trial, Murray testified and admitted striking Yap with the pool cue because she had taken his credit card. He stated that Yap struck him with a vacuum cleaner and then the pool cue. Murray also stated that Yap attempted to stab him with a pair of scissors. When she lunged at him, he obtained his handgun from the safe. During a struggle over the handgun, he accidentally shot her. Murray testified that when he struck her with the pool cue he did not intend to seriously injure her.
Following the presentation of evidence, the trial court instructed regarding murder, felony murder, and reasonable and unreasonable self-defense, but refused an instruction for heat-of-passion manslaughter. (CALCRIM Nos. 548, 520, 505, 571, 570.)
The jury convicted Murray of first degree murder and additionally found the special circumstance of simple kidnapping true. (§§ 187, subd. (a), 189, 190.2, subd. (a)(17)(B), 207, subd. (a).) It also found that Murray personally discharged a firearm resulting in death. (§ 12022.53, subd. (d).)
The trial court sentenced Murray to an indeterminate prison term of 25 years to life for the firearm allegation, followed by the indeterminate term of life without parole. The court also imposed a $10,000 restitution fine, a $10,000 parole revocation restitution fine (suspended), a $40 court security assessment, and a $30 criminal conviction assessment. (§§ 1202.4, subd. (a), 1202.45, 1465.8, subd. (a); Gov. Code, § 70373.) It awarded Murray 1,319 days of presentence custody credit.
The trial court acknowledged that it had the discretion to strike the firearm enhancement, but expressly declined to do so. --------
Murray appeals and contends that: 1) insufficient evidence supports the special circumstance of simple kidnapping; 2) the trial court erred by refusing his instruction regarding asportation; 3) the trial court erred by instructing with CALCRIM No. 1215 ("Kidnapping"); 4) the trial court erred in its response to a jury question regarding kidnapping; and 5) the trial court erred by refusing to instruct with CALCRIM No. 570 regarding heat-of-passion manslaughter. Murray adds that each of these errors was prejudicial and denied him due process of law, either alone or in combination. (People v. Canizales (2019) 7 Cal.5th 591, 614-615 [federal harmless error applies where theory of conviction both factually unsupported and legally erroneous instruction given].)
DISCUSSION
I.
Murray argues that the trial court erred by instructing regarding felony murder based upon simple kidnapping because there is insufficient evidence of asportation to warrant the instruction. (People v. Guiton (1993) 4 Cal.4th 1116, 1131 [trial courts required to screen out invalid theories of conviction].)
Murray also correctly asserts that his failure to object to the felony murder instruction is excused because this court granted the prosecutor's petition for writ of mandamus overturning the trial court's earlier grant of a section 995 motion. Objection in the trial court, therefore, would have been an idle act.
In People v. Martinez (1999) 20 Cal.4th 225, 235, overruled on other grounds by People v. Fontenot (2019) 8 Cal.5th 57, 70, our Supreme Court abandoned exclusive reliance on the actual distance that the victim was moved to determine whether the movement was substantial in character. (People v. Brooks (2017) 3 Cal.5th 1, 68.) Martinez adopted a totality of the circumstances standard that takes into account the scope and nature of the movement and any increased risk of harm to the victim. (Brooks, at pp. 68-69.) "Thus, in a case where the evidence permitted, the jury might properly consider not only the actual distance the victim is moved, but also such factors as whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim's foreseeable attempts to escape and the attacker's enhanced opportunity to commit additional crimes. . . ." (Martinez, at p. 237, fn. omitted.) Measured distance alone, therefore, is not determinative.
The evidence here sufficiently establishes the asportation element of kidnapping pursuant to the " 'totality of the circumstances' " standard. (People v. Brooks, supra, 3 Cal.5th 1, 68-69.) It took Yap 20 seconds to move forcibly from Murray's living room to his bedroom. The movement changed Yap's environment and prevented her escape. (People v. Robertson (2012) 208 Cal.App.4th 965, 984 [victim moved from back of garage near a door to the front of the garage near a tub of water]; People v. Shadden (2001) 93 Cal.App.4th 164, 167 [victim dragged nine feet into the back room of a store].) Inside Murray's bedroom, he had access to his handgun as well as handcuffs that he previously had placed there. This "increased the risk of harm above that which existed prior to the asportation." (People v. Martinez, supra, 20 Cal.4th 225, 237.) The movement also provided Murray an "enhanced opportunity to commit additional crimes." (Ibid.)
Murray also increased the risk of psychological harm to Yap by forcing her into his bedroom where he had handcuffs and a handgun. (People v. Nguyen (2000) 22 Cal.4th 872, 874-877 [increased risk of harm may be emotional or psychological]; People v. Power (2008) 159 Cal.App.4th 126, 138 [same].)
We reject Murray's contention that any movement was incidental to any associated crime of assault, i.e., the movement serving no other purpose than to commit assault. (People v. Taylor (Jan. 6, 2020, B293881) ___ Cal.App.5th ___ [victim backing up four steps incidental to robbery]; People v. Hoard (2002) 103 Cal.App.4th 599, 607 [moving and confining robbery victims to back office merely facilitated robbery of front of store].) The prosecutor did not charge Murray with assault and there was no need for the jury to determine whether Yap's movement facilitated an assault. Moreover, Murray's acts that possibly could constitute an assault - repeatedly striking and threatening her with the pool cue - occurred in the living room before her movement to the bedroom. (People v. Delacerda (2015) 236 Cal.App.4th 282, 291.) The pool cue acts also required no movement of Yap at all. (Ibid. [assault with a firearm required no movement of victim and occurred before he tackled her and dragged her to bedroom].)
In view of this discussion, we need not discuss Murray's additional arguments regarding this contention or the Attorney General's responses thereto.
II.
Murray contends that the trial court erred by refusing his modification to CALCRIM No. 1215 concerning simple kidnapping and the totality of the circumstances in assessing asportation. Murray requested additional language instructing that in determining whether movement of the victim was substantial, the jury "must first decide" whether the movement was "for a very short distance" and if so, doubts must be resolved in favor of the defendant and a not guilty finding made.
As given, CALCRIM No. 1215 provides: "The People must prove the following: [¶] . . . 2. Using that force or fear, the defendant moved the other person or made the other person move a substantial distance; [¶] . . . Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the distance the other person was moved was beyond that merely incidental to the commission of Robbery, whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, or gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection."
A defendant has the right to an instruction that pinpoints the theory of his defense. (People v. Burney (2009) 47 Cal.4th 203, 246.) The court may properly refuse an instruction, however, that incorrectly states the law or is argumentative or possibly confusing. (People v. Moon (2005) 37 Cal.4th 1, 30.) We independently review the wording of a jury instruction to determine whether the instructions are complete and correctly state the law. (People v. Bell (2009) 179 Cal.App.4th 428, 435.)
CALCRIM No. 1215 properly states the holding of People v. Martinez, supra, 20 Cal.4th 225, by directing the jury's attention to the actual distance the victim is moved as well as to whether that movement increased the risk of harm to the victim, decreased the likelihood of detection, and increased the defendant's opportunity to commit additional crimes. (Id. a p. 237.) Consideration of these factors "should apply in all cases involving simple kidnapping." (Id. at p. 235, italics added.)
CALCRIM No. 1215 also correctly informs the jury that a substantial distance is more than "slight or trivial." Murray's requested modification is argumentative and would create confusion regarding the evaluation of substantiality. Failure to give a confusing or argumentative instruction does not violate principles of due process of law.
III.
Murray argues that the trial court erred by limiting the associated crime in CALCRIM No. 1215 to robbery. He claims prejudicial error because the jury was precluded from finding the associated crime of assault.
Murray has forfeited this contention because he did not object on this basis in the trial court. (People v. Catlin (2001) 26 Cal.4th 81, 149 [party may not complain on appeal that instruction was too general or incomplete unless he has requested clarifying or amplifying language].)
Forfeiture aside, assault is not an associated crime. The prosecutor did not charge or prosecute Murray for assault. Moreover, any assault of Yap was complete before her movement into the bedroom. Murray threatened and struck her with the pool cue and demanded her telephone prior to her movement into the bedroom.
We reject Murray's contention that he did not receive the effective assistance of counsel. Any objection or request for clarifying language would be meritless. (People v. Jones (1998) 17 Cal.4th 279, 309 [counsel not deficient for failing to make meritless objection].) Deciding whether to object is inherently tactical, and a failure to object will rarely establish ineffective assistance of counsel. (People v. Romero and Self (2015) 62 Cal.4th 1, 25.)
IV.
Murray asserts that the trial court erred in its response to the jury inquiry whether the element of asportation was satisfied if the distance moved was merely incidental to the commission of assault.
Following consultation with counsel, the trial court corrected CALCRIM No. 1215 by placing a comma following the word "Robbery" and before the word "whether." (Ante, jury instruction at II.) Murray's counsel did not offer a suggested response and submitted to the court's correction.
Murray has forfeited this argument by agreeing to the trial court's response to the jury question. (People v. Turner (2004) 34 Cal.4th 406, 437 [defendant forfeited claim by specifically agreeing below to the court's handling of the jury question].)
Forfeiture aside, the trial court did not abuse its discretion by its response. The court properly may decide that the best way to assist the jury is to direct it to reread a full and complete instruction. (People v. Lau (2017) 10 Cal.App.5th 1004, 1017.) "The trial court, after all, is in a better position than an appellate court to interpret the tone and nuances of the problems in the jury room. Having presided over the trial, the judge appreciates the full context in which the jury's questions are posed." (People v. Haskett (1990) 52 Cal.3d 210, 232.)
In any event, Murray cannot establish that but for counsel's asserted deficient performance, the outcome of the proceeding would have been different. (People v. Mickel (2016) 2 Cal.5th 181, 198 [standard of review for claims of ineffective assistance of counsel].) Sufficient evidence supports the jury's finding that Murray committed premeditated and deliberate first degree murder. (Ante, I.)
V.
Murray claims that the trial court erred by refusing to instruct regarding heat-of-passion voluntary manslaughter. (§ 192, subd. (a); CALCRIM No. 570.) He relies upon Yap's pattern of conduct in the weeks preceding her death - theft of his credit card, debit card, cash, and drugs - to establish provocation.
In criminal cases, the trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary to the jury's understanding of the case. (People v. Nelson (2016) 1 Cal.5th 513, 538; People v. Enraca (2012) 53 Cal.4th 735, 758-759.) The evidence necessary to support a lesser included offense instruction must be substantial evidence from which reasonable jurors could conclude that the facts underlying the instruction exist. (Ibid.) The substantial evidence requirement is not satisfied by any evidence, no matter how weak, but evidence from which a jury could conclude that the lesser offense, but not the greater, was committed. (Nelson, at p. 538.) We independently review whether the trial court should have instructed concerning a lesser included offense. (People v. Waidla (2000) 22 Cal.4th 690, 733.) "Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that . . . is however predominantly legal. As such it should be examined without deference." (Ibid.) Doubts regarding the sufficiency of evidence to warrant a lesser included offense instruction, however, must be resolved in favor of the defendant. (People v. Tufunga (1999) 21 Cal.4th 935, 944.)
The crime of murder may be reduced to voluntary manslaughter if the victim engaged in provocative conduct sufficient to cause an ordinary person with an average disposition to act in the heat of passion, i.e., rashly or without due deliberation and reflection. (People v. Enraca, supra, 53 Cal.4th 735, 758-759; People v. Gutierrez (2009) 45 Cal.4th 789, 826 [" 'The provocation must be such that an average, sober person would be so inflamed that he or he would lose reason and judgment' "].) "Heat of passion" is a state of mind created by legally sufficient provocation causing a person to act not from rational thought, but from an unconsidered reaction to the provocation. (People v. Nelson, supra, 1 Cal.5th 513, 539 [legally sufficient provocation eclipses reflection and causes a person to act without deliberation or judgment]; People v. Beltran (2013) 56 Cal.4th 935, 942 [a person who acts without reflection in response to adequate provocation does not act with the mental state required for murder].) " 'Adequate provocation and heat of passion must be affirmatively demonstrated.' " (Gutierrez, at p. 826.) It is not sufficient that a person is provoked and then later kills. (Nelson, at p. 539.)
The heat of passion element of voluntary manslaughter has an objective and a subjective component. (People v. Enraca, supra, 53 Cal.4th 735, 759.) "Objectively, the victim's conduct must have been sufficiently provocative to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (Ibid.) Subjectively, the accused must be shown to have killed while under the actual influence of a strong passion induced by such provocation. (Ibid.)
The trial court was not required to instruct regarding voluntary manslaughter because there was no evidence that Murray murdered Yap in the heat of passion. (People v. Thomas (2012) 53 Cal.4th 771, 813 [lesser included offense instruction not required where there is no evidence that offense is less than that charged].) "[I]t is insufficient that one is provoked and later kills. If sufficient time has elapsed for one's passions to 'cool off' and for judgment to be restored, [there is] no mitigation for a subsequent killing." (People v. Beltran, supra, 56 Cal.4th 935, 951.) Yap's behavior of minor thefts and lies was not sufficiently provocative to cause an ordinarily reasonable person to have killed in rage. Moreover, subjectively, the evidence reflects that Murray deliberately and with calculation sought revenge against Yap. (People v. Wright (2015) 242 Cal.App.4th 1461, 1481 [heat of passion does not include emotion of revenge].) Failure to instruct with an instruction on a lesser included offense that is not supported by sufficient evidence does not constitute fundamental unfairness or loss of verdict reliability. (People v. Holloway (2004) 33 Cal.4th 96, 141.)
VI.
The trial court improperly imposed and suspended a parole revocation restitution fine pursuant to section 1202.45. (People v. Brasure (2008) 42 Cal.4th 1037, 1075.) Accordingly, we strike that fine.
We modify the judgment to strike the suspended parole revocation restitution fine, but otherwise affirm. The trial court shall prepare an amended abstract of judgment accordingly and forward the amended abstract to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
GILBERT, P. J. We concur:
PERREN, J.
TANGEMAN, J.
Gustavo E. Lavayen, Judge
Superior Court County of Santa Barbara
David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Blythe J. Leszkay and Shezad H. Thakor, Deputy Attorneys General, for Plaintiff and Respondent.