P. v. Murcia
Filed 8/25/06 P. v. Murcia CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
| THE PEOPLE, Plaintiff and Respondent, v. ELVIS MURCIA, Defendant and Appellant. |
A108772
(Contra Costa County Super. Ct. No. 05-040906-0) |
Defendant Elvis Murcia was convicted by jury trial of second degree murder (Pen. Code, § 187)[1] and the jury found true the allegation that he had personally used a deadly weapon during the commission of the offense (§ 12022, subd. (b)(1)). Defendant argues the trial court erred in denying his request to instruct pursuant to CALJIC No. 2.28, regarding the significance of untimely disclosed evidence by the prosecution, and in failing to give CALJIC No. 2.70, concerning a defendant's oral admissions. Defendant also contends the prosecutor committed three types of misconduct during closing argument by commenting on: (1) defendant's postarrest silence in violation of Doyle v. Ohio (1976) 426 U.S. 610; (2) defendant's failure to testify in violation of Griffin v. California (1965) 380 U.S. 609; and (3) facts not in evidence. We reject these contentions and affirm.
Background
The Homicide
On November 27, 2003, Todd Robinson's body was discovered in a green-lidded recycling bin (container) in North Richmond. A cell phone charger, a temporary California Department of Motor Vehicles used dealer notice, temporary identification, two empty packages of gloves, five used plastic gloves, an empty package of moth balls, several moth balls, and a used roll of clear tape were also in the container.
Defendant lived in a converted garage that was divided into two apartments. Several days before Robinson's body was found, Robinson and his girlfriend, Yvette Young, were at defendant's house for approximately two days smoking crack cocaine. During their two-day stay, Young knew Robinson had some fake cocaine. At some point, defendant smoked some fake cocaine that Robinson had â€
