Filed 9/27/17 P. v. Murphy CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Gerard S. Brown, Judge. Affirmed.

Eric Laurence Murphy, in pro. per.; and Allison L. Ehlert, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

I

INTRODUCTION

Defendant and appellant Eric Laurence Murphy attacked his mother’s boyfriend with a machete. Following a jury trial, defendant was convicted of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1), and sentenced to three years in state prison with credit for time served. Defendant appeals from the judgment. Based on our independent review of the record, we find no error and affirm the judgment.

II

FACTUAL BACKGROUND

Defendant lived with his mother and his mother’s long-time boyfriend, Abdullah Hadi, in Rialto. Hadi is a large man, about six feet, four inches tall and 350 pounds. He is also a convicted felon. He described himself at trial as “hot headed,” “hard headed,” and not afraid of a fight.

On July 12, 2016, defendant helped Hadi unload some furniture from Hadi’s truck. The two then had a “little conversation.” Hadi was initially evasive at trial as to what this conversation was about, but eventually stated that defendant had questioned whether Hadi was cheating on his mother based on the fact that defendant believed he had seen Hadi driving around town with another woman earlier in the day. Defendant was “pretty upset” and “a little agitated” during this conversation. Hadi denied that he was having an affair, and said that defendant did not understand that he gave rides to people all the time.

After denying defendant’s cheating allegation, Hadi turned around and walked back to his truck. At that point, Hadi saw defendant coming out of the house yelling about how he loved his mother. Hadi began walking back towards defendant, and challenged him to a fight. Hadi stated, “I’m an old guy, you know, but I can still sling these things pretty good, you know.” As they walked towards one another, Hadi did not initially see any weapons in defendant’s hands, but when they got within five feet of one another, he saw that defendant was carrying a machete. The machete was two to three feet long and defendant was waving it in an up-and-down motion. Hadi then “walked up” on defendant and was hit with the machete. At trial, Hadi would not say whether defendant hit him intentionally or whether he did so out of fear. Hadi explained: “I got hit with the machete. I don’t think—it may have been intentional, may have been out of fear from himself. He knows how I am.” Hadi admitted that he had become belligerent when defendant accused him of cheating on his mother, and that he “probably could have” threatened defendant when he saw the machete.

The machete lacerated Hadi’s upper shoulder and abdomen. Photographs of Hadi’s injuries were shown to the jury. Once Hadi was injured, Hadi backed away from defendant and told him he was going to call the police. Defendant then fled in a vehicle. Hadi did not know what happened to the machete and law enforcement could not find the machete.

After this incident, Hadi continued to live with defendant and defendant’s mother. Hadi stated that he and defendant got along fine and that they had even driven to court together for the trial.

Officer Munguia of the Rialto Police Department responded to the scene at around 4:15 p.m. Upon arrival, Officer Munguia found Hadi sitting in the bed of his truck, with blood on his clothing and dripping down his pants. Hadi was in pain, but was not angry. Officer Munguia interviewed Hadi both at the scene and later at a hospital, where Hadi was taken for treatment. Hadi told Officer Munguia that defendant had accused him of cheating on his mother, and that defendant swung the machete at him four times without hitting him, but finally connected the fifth time.

Hadi also informed Officer Munguia that defendant had threatened him with a machete a few months earlier over the same issue of whether Hadi was being unfaithful to defendant’s mother. At that time, however, Hadi was able to get away from defendant and defendant’s mother hid the machete from defendant. Hadi, in contrast, testified at trial that the July 12, 2016 incident was the first and only time defendant had ever waved a machete in front of him, and he denied telling Officer Munguia anything different.

Jeffrey Foss, the defense’s investigator, testified on behalf of defendant. He explained that he interviewed Hadi four months after the July 12 incident. Hadi told him that he had been drinking that day and had walked into the machete while defendant was using it to cut shrubbery in the front yard. Hadi also told him that he had been untruthful with the police because of his drinking and because he was upset. At trial, Hadi stated that he does not usually drink, but that he might have had a beer that day. Hadi also said that he had told Officer Munguia the truth, but that he had lied to Foss.

Defendant also testified at trial. He stated that before he helped Hadi unload the furniture from his truck, he had been trimming grass, trees, and rose bushes with the machete. After he confronted Hadi about the woman he had seen him with earlier that day, he said he returned to clearing the shrubbery. Hadi walked up to him yelling, which scared defendant. Defendant also said he did not realize how close Hadi was to him, and he accidentally hit him with the machete because he was already in mid-swing, aiming at a palm tree. Defendant denied that he and Hadi had ever been involved in any machete-related altercations. When Hadi said he was going to call the police, defendant claimed he left the scene because Hadi had accused him of trying to kill him and he did not want the situation to escalate. Thereafter, defendant checked the local courthouse to find out if any warrants had been issued for his arrest, but he did not contact the police to give his side of the story because he viewed what happened as an accident and did not know that Hadi had decided to press charges. Defendant admitted that he had been convicted of petty theft in 2003 and 2008 and second degree burglary in 2011.

III

DISCUSSION

After defendant appealed, upon his request, this court appointed counsel to represent him. Upon examination of the record, 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 case, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record.

We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his two-page letter brief, defendant summarily argues: (1) the trial court abused its discretion when it admitted into evidence several photos of the blood trail left by the victim’s injuries; (2) the trial court abused its discretion in allowing the prosecutor to impeach defendant with three of his prior convictions; (3) the trial court abused its discretion in allowing the prosecutor to introduce evidence of a prior machete incident between defendant and the victim; (4) the trial court erred when it instructed the jury with CALCRIM Nos. 371 and 372 allowing the jury to consider that the machete was never found and that defendant left the scene before the police arrived as evidence of defendant’s guilt; and (5) the trial court erred in declining to place defendant on probation as opposed to a prison sentence. We find defendant’s contentions unmeritorious.

A. Admission of Photographs

As to defendant’s first claim of error, the trial court correctly ruled the photographs of blood splatter on the pavement were relevant and neither duplicative nor inflammatory under Evidence Code section 352. “ ‘ “ ‘[T]he admission of photographs of a victim lies within the broad discretion of the trial court when a claim is made that they are unduly gruesome or inflammatory. [Citations.] The court’s exercise of that discretion will not be disturbed on appeal unless the probative value of the photographs clearly is outweighed by their prejudicial effect. [Citations.]’ [Citation.]” ’ ” (People v. Cage (2015) 62 Cal.4th 256, 283 (Cage).)

“ ‘As a rule, the prosecution in a criminal case involving charges of murder or other violent crimes is entitled to present evidence of the circumstances attending them even if it is grim.’ [Citation.] Photographs and other graphic evidence are not rendered ‘irrelevant or inadmissible simply because they duplicate testimony, depict uncontested facts, or trigger an offer to stipulate.’ [Citation.]” (People v. Thomas (2012) 53 Cal.4th 771, 806.) “ ‘[T]he jury [is] entitled to see the physical details of the crime scene and the injuries defendant inflicted on his victims.’ [Citation.]” (Cage, supra, 62 Cal.4th at p. 283.) In this case the trial court reviewed each of the photographs, and concluded that they were not inflammatory and/or duplicative and relevant to show the nature of the assault. The trial court did not abuse its discretion in admitting the challenged photographs into evidence.

B. Admission of Defendant’s Prior Convictions

We also reject defendant’s second claim of error that the trial court abused its discretion in allowing the prosecutor to impeach defendant with three of his prior convictions. A witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction, subject to the trial court’s exercise of discretion under Evidence Code section 352. (People v. Clark (2011) 52 Cal.4th 856, 931 (Clark); People v. Wheeler (1992) 4 Cal.4th 284, 290-296 (Wheeler), superseded on other grounds as stated in People v. Duran (2002) 97 Cal.App.4th 1448, 1460-1462.) “[T]he admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude. Beyond this, the latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad.” (Wheeler, at p. 296, fn. omitted.) “When determining whether to admit a prior conviction for impeachment purposes, the court should consider, among other factors, whether it reflects on the witness’s honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant’s decision to testify.” (Clark, at p. 931.)

Because the trial court’s discretion to admit or exclude impeachment evidence “is as broad as necessary to deal with the great variety of factual situations in which the issue arises” (People v. Collins (1986) 42 Cal.3d 378, 389), a reviewing court ordinarily will uphold the trial court’s exercise of discretion. (Ibid.; see People v. Hinton (2006) 37 Cal.4th 839, 887-888.) Here, the trial court did not abuse its discretion in admitting evidence of defendant’s prior theft-related convictions. (Wheeler, supra, 4 Cal.4th at p. 295; People v. Mendoza (2000) 78 Cal.App.4th 918, 925 [prior convictions for burglary, robbery, and other theft-related crimes probative of credibility].)

C. Admission of Prior Uncharged Machete Incident

Defendant also argues the trial court abused its discretion in admitting evidence of an earlier machete incident between defendant and the victim. We disagree.

“Evidence Code section 1101, subdivision (b), permits the admission of other-crimes evidence against a defendant ‘when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.’ [Citation.] ‘[Evidence Code] [s]ection 1101 prohibits the admission of other-crimes evidence for the purpose of showing the defendant’s bad character or criminal propensity.’ [Citation.] As with other circumstantial evidence, its admissibility depends on the materiality of the fact sought to be proved, the tendency of the prior crime to prove the material fact, and the existence or absence of some other rule requiring exclusion. [Citation.]” (People v. Whisenhunt (2008) 44 Cal.4th 174, 203.)

“. . . The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 371.)

We review a trial court’s ruling under Evidence Code sections 1101, subdivision (b), and 352 for abuse of discretion. (People v. Davis (2009) 46 Cal.4th 539, 602.) We generally find reversible error only if the court’s exercise of discretion was arbitrary, capricious, and resulted in a miscarriage of justice. (People v. Williams (2009) 170 Cal.App.4th 587, 606.)

Here, as the trial court found, the prior uncharged machete incident was relevant to show the machete belonged to defendant. As the court noted, “regardless of the use of the machete, that may not be relevant in regards to a prior assault on the alleged victim by the use of a machete, but the fact that there are two witnesses to testify that the defendant was in previous possession of the machete, that the machete was hidden, he must have located it, I think is relevant.” The prior uncharged machete incident was relevant, probative, not cumulative, and not unduly prejudicial. Accordingly, the trial court did not abuse its discretion in admitting evidence of the prior machete incident.

D. Instruction on CALCRIM Nos. 371 and 372

We also find defendant’s claim the trial court erred in instructing the jury with CALCRIM Nos. 371 and 372 unmeritorious. The trial court must instruct the jury on the general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding of the case. (People v. Martinez (2010) 47 Cal.4th 911, 953; People v. Breverman (1998) 19 Cal.4th 142, 154.)

CALCRIM No. 371, as given to the jury, stated: “If the defendant tried to hide evidence that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.”

Here, as the trial court found, the evidence circumstantially indicated that, “despite [defendant’s] denial that he took the machete with him, based on the officer’s testimony that he did a search of the outside and did not locate the machete, . . . the jurors could determine that the defendant took the machete with him in order to attempt to hide evidence.” Under the circumstances of this case, it was proper to instruct the jury on consciousness of guilt from suppression of adverse evidence. (People v. Wilson (2005) 36 Cal.4th 309, 330.) The trial court was warranted in instructing the jury with CALCRIM No. 371.

The trial court also correctly instructed the jury with CALCRIM No. 372. CALCRIM No. 372, as given to the jury, read: “If the defendant fled immediately after the crime was committed/ that conduct may show that he was aware of his guilt. If you conclude that the defendant fled it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.”

The evidence need not establish that a defendant physically ran from the scene or made an escape in order to warrant a flight instruction. What is required is some evidence indicating the defendant acted with the purpose of avoiding observation or arrest. (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) Here, the instruction was warranted because substantial evidence showed that defendant immediately fled the scene of the crime after the crime occurred.

E. Denial of Probation

Finally, defendant claims the trial court erred in denying him probation, and instead sentencing him to three years in state prison. We disagree.

Penal Code section 1203, subdivision (e), provides that except in unusual cases where the interests of justice demand departure from the declared policy of imprisonment, probation shall not be granted to any person who used a deadly weapon or willfully inflicted great bodily injury in the perpetration of the crime of which they were convicted.

In determining whether the statutory limitation on probation has been overcome, the court is required to use the criteria set forth in California Rules of Court, rule 4.413. If the court finds the case to be an unusual one, it must then decide whether to grant probation, utilizing the statutory criteria set forth in California Rules of Court, rule 4.414. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 830.) We review the trial court’s finding that a case is not unusual for abuse of discretion. (Id. at p. 831.) The burden is on the party attacking the sentence to show it is irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) Defendant cannot meet that burden.

Under California Rules of Court, rule 4.413, facts that may indicate an unusual case include: (1) the circumstance giving rise to the limitation on probation is substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes; (2) the defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense; (3) the crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and (4) the defendant is youthful and has no significant record of prior criminal offenses.

Courts must construe “ ‘unusual case’ ” and “ ‘interests of justice’ ” narrowly so that the statutory limitations on probation have substantial scope and effect. (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229.) Thus, unusual cases are limited to those matters in which the crime is either atypical or the offender’s moral blameworthiness is reduced. (Ibid.)

In the present matter, the trial court found this was not an unusual case justifying probation and did not find unusual circumstances. The court noted that defendant had twice been convicted of a felony, defendant was armed with or used a weapon, defendant inflicted physical or emotional injury, and defendant had a prior record of criminal conduct. The record supports the trial court’s finding that the facts of this case do not meet the factors justifying unusual circumstances to grant probation. Because defendant was statutorily ineligible for probation and has not shown that any criterion stated in California Rules of Court, rule 4.413 applies to this case, he cannot show that the trial court erred by refusing to grant probation.

An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.

IV

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

SLOUGH

J.