P. v. Murry

Filed 8/31/06 P. v. Murry CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County, Katherine Mader, Judge. Affirmed in part; remanded in part.

Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Lawrence M. Daniels, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Michael Fred Murry is a homeless man who committed crimes against three homeless women, in the beach area of Santa Monica and Venice. He was involved in romances with two of the women, Sherece V. and Nani V., before he attacked them. Sherece and Nani testified at the trial. The third victim, Shasta M., was a 17-year-old girl whom appellant befriended and assaulted, on the same day. A redacted version of Shasta's preliminary hearing testimony was read to the jury, after she was found to be unavailable as a witness.

Appellant contends that admission of Shasta's preliminary hearing testimony violated his Sixth Amendment right of confrontation, under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). He also contends that there were numerous errors in the jury instructions and in his sentence. Respondent concedes one sentencing error. We agree with appellant as to a second sentencing error. We reject appellant's contentions as to guilt, affirm his conviction, but remand for resentencing.

PROCEDURAL HISTORY

As to Shasta, appellant was charged with three counts of forcible rape (counts 1, 2, and 3), and one count of dissuading a witness from testifying (count 5). The jury convicted him of battery and assault (count 1); attempted rape, battery, and assault (count 2); rape (count 3); and dissuading a witness (count 5).

As to Nani, appellant was charged with kidnapping (counts 9 and 12), battery with serious bodily injury (counts 10 and 14), rape (count 11), criminal threats (count 13), and corporal injury to a spouse or cohabitant (count 15). He was convicted of all those charges, except rape.

As to Sherece, appellant was charged with, and convicted of, battery (count 16), and assault by means of force likely to produce great bodily injury (count 17).

Appellant was also charged with, and convicted of, robbing the owner of Rose Market (count 6), and committing petty theft at Rose Market, with a prior petty theft (count 8). He admitted that he had a prior conviction for petty theft.

Appellant's sentence was computed in this manner: The midterm of five years was imposed on count 9, kidnapping, which was selected as the base term. A consecutive sentence of one year eight months (one-third of the midterm) was added for the second kidnapping count, count 12. A full consecutive term of six years was imposed on count 3, rape. A full consecutive term of three years was imposed on count 5, dissuading a witness. Consecutive one-year sentences (one-third of the midterm), were imposed on counts 2, 6, 10, 14, 15, and 17. On count 17, the court added three consecutive years for an enhancement for inflicting great bodily injury. Consecutive terms of eight months (one-third of the midterm) were added on counts 8 and 13.

FACTS

1. Prosecution Evidence

Appellant was 32 years old at the time of the crimes. He met Sherece on the beach in Santa Monica in November 2003. The following month, they become lovers, while temporarily living on the street in Hollywood. They bought alcohol and food with money they made through panhandling. They argued on New Year's Eve because Sherece wanted to take the bus back to Santa Monica, and appellant did not want to go. He also was angry that Sherece would not give him $5 they had made that day. He punched Sherece in the face, knocking her down. He hit her again while she was on the ground. He then left. Sherece was taken to a hospital by ambulance, and treated for a black eye. She then returned to Santa Monica.

Appellant and Sherece soon resumed their relationship. They had another argument on March 8, 2004, because Sherece thought that appellant was too drunk to drive a car. She threw the keys away from the car and started to walk away. Appellant followed her, grabbed her by the hair, hit her in the face, and knocked her to the ground. He then kicked her several times in the head and face. She was again taken by ambulance to a hospital. Her injuries included a broken nose, bruises to her face and ribs, and permanent damage to the vision in one eye.

In July 2004, appellant had a sexual relationship for a few weeks with another homeless woman, Nani. They slept outside around Venice Beach, drank alcohol together, and used cocaine. Over time, appellant became unreasonably jealous and antagonistic. On July 16, 2004, he became angry with Nani because she accepted a sandwich from a friend. He hit her with his fist on the side of her face, knocking her down. He then dragged and carried her a considerable distance, to a particular stairwell. In the process, he periodically hit her in the face, choked her, and hit her head against the ground. She was dizzy, and her head was bleeding. He would not let her seek medical treatment, and forced her to stay with him in the stairwell.^[1] After he fell asleep, she managed to crawl back to friends at the Venice Boardwalk.

Nani stayed with her friends throughout the next day. That evening, she was on the beach, telling police officers what appellant did to her, when she saw him. Frightened, she ran away from the officers. Appellant pulled her away until they were at a location where nobody could see them. He repeatedly struck her in the face. He picked her up by the throat and hit her so hard that she flew about 10 feet through the air. He then choked her into unconsciousness. When she awakened, he was gone. She made a full report and received treatment at a hospital. As with Sherece, her physical injuries matched her description of the crimes.

On August 3, 2004, the third victim, 17-year-old Shasta, was panhandling with her 22-year-old boyfriend, Jeremy, in front of a fast food restaurant. Appellant approached and offered to buy them beer. Shasta had never seen him before. They bought beer and drank it in a hotel room, while playing a game. At some point, Shasta mentioned that the police were paying for the hotel room, because she had reported that she had been molested two nights earlier by a man named â€