P. v. Murphey
Filed 7/20/06 P. v. Murphey CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
THIRD APPELLATE DISTRICT
(Butte)
| THE PEOPLE, Plaintiff and Respondent, v. SAMUEL JAMES MURPHEY, Defendant and Appellant. | C049818
(Super. Ct. No. CM021770)
|
A jury convicted defendant Samuel Murphey of violating Penal Code section 261, subdivision (a)(3), rape by use of drugs.[1] The jury was unable to reach a verdict on a second count of violating section 261, subdivision (a)(4), rape of an unconscious person, and the People dismissed the second count. The trial court sentenced defendant to the mid term of six years. On appeal defendant's sole contention is that he received ineffective assistance of counsel when his trial attorney failed to object to a question designed to impeach his trial testimony by reference to his post-arrest silence. We shall conclude that defendant has not demonstrated he suffered prejudice by his counsel's failure to object, and shall affirm the judgment.
FACTUAL BACKGROUND
After an evening of smoking marijuana and drinking whiskey shots with Kyle Lederer and defendant, 18-year-old Kelsey G. passed out on defendant's sofa. The three arrived at defendant's house somewhere between 5:00 and 8:00 p.m., and by the time defendant's two roommates got home at around 10:15 p.m., Kelsey G. was passed out. The men tried to wake up Kelsey G. at some point, but they were unsuccessful.
Eventually defendant said he was going to bed and left the living room. The other three left Kelsey G. on the sofa and went to one of the bedrooms to play a video game. When one of the roommates left the bedroom to smoke a cigarette, he saw defendant having sex with Kelsey G. while she was passed out. He went back to the bedroom to tell the other men to come see what was happening. Defendant's other roommate also witnessed defendant having sex with Kelsey G. while she was unconscious. By the time Lederer got to the living room, defendant was pulling up his pants.
Kelsey G.'s pants were down around her ankles. She did not respond when the men tried to wake her. When Lederer, who was Kelsey G.'s boyfriend, saw what defendant had been doing, he immediately shouted, â€
