Filed 5/20/13 P. v. Murphy CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B238006

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA053156)
         v.

MONRELL DONOVAN MURPHY,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Bernie
C. LaForteza, Judge. Affirmed.
         Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey and
Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.


                                           ______________________
                                    INTRODUCTION


       Defendant Monrell Donovan Murphy appeals from a judgment of conviction
entered after a jury trial. Defendant was charged with two counts of second degree
robbery (Pen. Code,1 § 211) naming victims Abraham Gomez (Gomez) (count 1) and
Juliana Anguiano (Anguiano) (count 3), and dissuading a witness from reporting a crime
(§ 136.1, subd. (b)(1); count 4). As to counts 1 and 3, it was alleged that defendant
suffered a prior serious felony conviction (§ 667, subd. (a)(1)) and, as to all three counts,
it was alleged that defendant had suffered a prior conviction under the “Three Strikes”
Law (§§ 667, subds. (b)-(i), 1170.12), and that he had served two prior prison terms
within the meaning of section 667.5, subdivision (b).
       Defendant was convicted of the two counts of second degree robbery, but found
not guilty of dissuading a witness. The jury found true the prior conviction allegations.
       Defendant was sentenced to 18 years in prison. In addition, the court ordered
defendant to pay a $1,000 restitution fine under section 1202.4, subdivisions (b) through
(f), and imposed and stayed a $1,000 parole revocation fine under section 1202.45.
       On appeal, defendant contends the trial court improperly excluded the testimony
of defendant‟s eyewitness identification expert, there was instructional error, and the
restitution fine was improper. We affirm.


                                          FACTS


A. Prosecution
       In the middle of the night of June 16, 2011, sometime before 2:00 a.m., Gomez
was working by himself in the back of a donut shop in Lancaster, making donuts.
Defendant came in with another man. Defendant went to the back, grabbed Gomez by



1      Unless otherwise specified, all further statutory references are to the Penal Code.

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the neck, and brought him to the cash register. Defendant asked for money; the other
man placed a handgun to Gomez‟s head. Gomez was unable to open the cash register
and was struck behind his right ear with the gun. Defendant and the other man took the
cash register and fled.
       Gomez identified defendant from a photographic lineup. He also identified a
surveillance video from the donut shop as depicting the incident.
       On June 22, 2011, Anguiano was working at a Check and Go in Lancaster.
Anguiano buzzed defendant through the front door. Defendant asked a few questions and
then hopped over a counter and asked for money. Anguiano was scared and thought
defendant had a weapon in his waist band. Anguiano felt she had no choice but to open
the drawer with her key. Defendant took about $1,400 in cash and change, and checks
from one drawer.
       Defendant wiped down the drawers with the bottom of his T-shirt. When he was
leaving, he told Anguiano, “Give me five minutes. Don‟t you call the cops. I‟m going to
come and get you.”
       Anguiano identified a surveillance video showing herself and defendant as
depicting what happened that day. She also identified a photographic lineup from which
she selected defendant‟s photo.
       Detective Adam Zeko learned that Carlton Ewing (Ewing)2 was a suspect in the
donut shop robbery. When he located Ewing, he recovered a BB gun which Gomez later
identified as the gun used in the robbery. Ewing also had in his possession a safe deposit
key which had been in the donut shop‟s cash register.
       Defendant‟s cell phone number was on Ewing‟s cell phone. When Detective
Randy Megrdle called the number, a man who identified himself as “Monrell” answered
the phone.




2      Ewing was also charged with the robbery in count 1.

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B. Defense
       Defendant, who represented himself at trial, called several witnesses, including
Law Enforcement Technician Veronica Braun (Braun), Deputy Sheriff Bradley Feehan,
Detective Richard Ellis, and Sergeant Craig Husbands.
       Braun testified that on “January 16th,” she was a custodian of evidence and could
not remember defendant‟s case or the evidence.
       Deputy Feehan testified that he assisted in investigating the June 16 incident.
Detective Ellis testified that he showed Gomez a photographic six-pack. English was not
Gomez‟s primary language and Detective Ellis spoke “some Spanish.” Detective Ellis
saw Gomez initial the six-pack and circle defendant‟s photograph.
       Sergeant Husbands testified that he was the approving officer for most of the
reports in defendant‟s case, but Detective Megrdle was in charge of the investigation.
       Defendant testified that he has a brother a year older whose name is Montel.
Although Montel was charged with the crime, somehow defendant “got involved.”
Defendant claimed that when both robberies were committed, he was at home, and when
the donut shop robbery occurred, he was in bed asleep.


                                       DISCUSSION


A. Exclusion of Eyewitness Identification Expert Testimony
       Defendant contends that the trial court improperly excluded the testimony of an
eyewitness identification expert who was going to testify for defendant. The People
assert that because defendant failed to raise his constitutional claim in the trial court, he
has forfeited it. We reject defendant‟s contention.
       A defendant may not complain on appeal that the exclusion of expert testimony
under McDonald3 violated his or her constitutional rights if the argument was not made


3     People v. McDonald (1984) 37 Cal.3d 351, overruled on other grounds in People
v. Mendoza (2000) 23 Cal.4th 896, 914.

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in the trial court. (People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3.) Defendant
argues that the claim was not forfeited because he stated in his written motion that he had
a federal due process right to an adequate defense. Even assuming no forfeiture,
defendant‟s claim lacks merit.
       Only relevant evidence is admissible at trial. (Evid. Code, § 350.) Relevant
evidence is that which has “any tendency in reason to prove or disprove any disputed fact
that is of consequence to the determination of the action.” (Id., § 210.) The trial court
has the duty to determine the relevance and thus the admissibility of evidence before it
can be admitted. (Id., §§ 400, 402.) The trial court is vested with wide discretion in
performing this duty. (People v. Waidla (2000) 22 Cal.4th 690, 717.) We will not
disturb the trial court‟s exercise of its discretion on appeal unless the court has abused its
discretion (ibid.), i.e., if its decision exceeds the bounds of reason. (People v. DeSantis
(1992) 2 Cal.4th 1198, 1226.)
       Expert opinion testimony is admissible if the subject matter of the testimony is
“sufficiently beyond common experience that the opinion of an expert would assist the
trier of fact.” (Evid. Code, § 801, subd. (a).) Such testimony must be “[b]ased on matter
(including his special knowledge, skill, experience, training, and education) perceived by
or personally known to the witness or made known to him at or before the hearing,
whether or not admissible, that is of a type that reasonably may be relied upon by an
expert in forming an opinion upon the subject to which his testimony relates . . . .” (Id.,
subd. (b).)
       People v. McDonald, supra, 37 Cal.3d 351 addresses the admissibility of expert
opinion evidence on the subject of eyewitness identification. It begins with the
recognition that “„[t]he vagaries of eyewitness identification are well-known; the annals
of criminal law are rife with instances of mistaken identification.‟ [Citation.]” (Id. at
p. 363.) Eyewitness identification generally is given great credibility by the jury, but
scientific studies have revealed a number of psychological factors affecting the accuracy
of eyewitness identification. (Id. at pp. 363-365.) The McDonald court notes that courts
have been reluctant to admit testimony by expert witnesses on the psychological factors
                                              5
affecting the accuracy of eyewitness identification. (Id. at p. 365.) The question before it
was whether that reluctance was justified. (Ibid.)
       The court observes the requirement of Evidence Code section 801, subdivision (a),
that expert opinion testimony address subjects “„sufficiently beyond common experience
that the opinion of an expert would assist the trier of fact.‟” (People v. McDonald, supra,
37 Cal.3d at p. 367, italics omitted.) As to whether the expert testimony at issue meets
this requirement, the court notes “[i]t is doubtless true that from personal experience and
intuition all jurors know that an eyewitness identification can be mistaken, and also know
the more obvious factors that can affect its accuracy, such as lighting, distance, and
duration. It appears from the professional literature, however, that other factors bearing
on eyewitness identification may be known only to some jurors, or may be imperfectly
understood by many, or may be contrary to the intuitive beliefs of most.” (Id. at pp. 367-
368, fn. omitted.) These factors include the cross-racial nature of the identification and
the lack of correlation between the degree of confidence in an identification and the
accuracy of that identification. (Id. at pp. 368-369.) Since some jurors may be “unaware
of the foregoing psychological factors bearing on eyewitness identification, the body of
information now available on these matters is „sufficiently beyond common experience‟
that in appropriate cases expert opinion thereon could at least „assist the trier of fact‟
(Evid. Code, § 801, subd. (a)).” (McDonald, supra, at p. 369, fn. omitted.)
       Defendant filed an ex parte motion for appointment of an eyewitness identification
expert. On October 26, 2011, the court4 denied defendant‟s request for appointment of
an identification expert. In arguing the motion, defendant told the court, “I think the
relevant point is the fact that the six-pack was administered to a non-English-speaking
witness without the aid of an interpreter, with hand gestures; and impermissive
communication was used.” Defendant also noted that the admonishment was dated July




4     Judge Lisa Chung was the judge who ruled on defendant‟s eyewitness expert
motion.
                                               6
7, “some three weeks after the actual six-pack, which indicates that possibly the witness
was not properly admonished as well.”
       The court examined one six-pack, and noted all the photographed individuals were
African-American males with short-cropped hair. The court ruled, “I don‟t see anything
here that shows it to be suggestive. They all appear to be . . . the same size, same features
somewhat, although different individuals.”
       The court relied on McDonald in making its ruling. The court noted that it had
“re-read the preliminary hearing transcript showing that there was a six-pack
identification made on two different occasions, two different witnesses, both of which
identify the defendant. There is reference, also, to a videotape of the incident. With
regard to defendant‟s argument that . . . one of the witnesses was not assisted by an
interpreter, I believe that is ripe for cross-examination and could be used by the defense
to question the validity or the accuracy of the admonishments and the identification. . . . I
don‟t think an expert is needed to say that . . . based on a noninterpreter, that the
identification was tainted. . . . [I]f you don‟t have an individual who speaks English, you
can raise that on cross-examination and argue that. That is not beyond the common
experience.”
       The court further stated: “With regard to the admonishment and . . . with regard to
the time difference, the length of time in terms of the time of the incident, the time of the
six-pack identification, again, that is ripe for cross-examination for the defense. Again, I
don‟t see why there is a need for an expert to testify that the length of time makes the
identification not as accurate. Again, that is not beyond the common experience of
anyone. This is ripe for argument. . . . The defense can argue that based on the time
difference, that that is—that could taint the person‟s identification. So I don‟t see how an
expert . . . would be relevant. Again, it doesn‟t meet the McDonald test, and there is
substantial corroboration.”
       We find no error in the court‟s ruling on defendant‟s motion. The trial court
instructed the jury on factors affecting the accuracy of eyewitness identifications,


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specifically CALCRIM No. 315. The jury is presumed to have understood and followed
the court‟s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
       The facts that justified an eyewitness expert in McDonald were not present in the
instant case. In McDonald, “the defense presented six witnesses who testified that [the]
defendant was in another state on the day of the crime” and a prosecution witness
testified “that [the] defendant was not the gunman.” (People v. McDonald, supra, 37
Cal.3d at p. 355, italics omitted.) In the instant case, defendant did not have alibi
witnesses to support a defense that he was not at the crime scenes. The prosecution
presented strong evidence to support the eyewitness identifications. There were
videotapes of both incidents. In an in-field show-up identification, Gomez recognized
defendant‟s facial features, earring and shoes. Anguiano observed defendant in the
daylight. Anguiano and Gomez each identified defendant immediately upon seeing his
photograph and were sure that he was the gunman.
       There was also independent evidence that tied defendant to the crimes. There
were videotapes of both incidents. Ewing was tied to the robbery through the donut
shop‟s cash register‟s safe deposit key in his possession, and defendant was tied to Ewing
by his cell phone number on Ewing‟s cell phone. This evidence gave reliability to the
eyewitness identifications.


B. Jury Instructions
       It is well established that the trial court has a duty to “instruct on lesser offenses
necessarily included in the charged offense if there is substantial evidence the defendant
is guilty only of the lesser. [Citation.] On the other hand, if there is no proof, other than
an unexplainable rejection of the prosecution‟s evidence, that the offense was less than
that charged, such instructions shall not be given. [Citation.]” (People v. Kraft (2000)
23 Cal.4th 978, 1063-1064.) An offense is a lesser necessarily included offense if the
statutory elements of the greater offense include all of the elements of the lesser offense,
so that the greater offense cannot be committed without also committing the lesser


                                               8
offense. (People v. Birks (1998) 19 Cal.4th 108, 117; see also People v. Reed (2006) 38
Cal.4th 1224, 1230-1231.)
          Defendant contends that in the instant case, where the element of force or fear was
not clearly established, the court had a sua sponte duty to instruct the jury that defendant
could be convicted of grand theft person in count 3, as an alternative and a lesser
included offense of robbery. We disagree.
          Section 211 defines “robbery” as “the felonious taking of personal property in the
possession of another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.”
          Section 484, subdivision (a), defines “theft” as follows: “Every person who shall
feloniously steal, take, carry, lead, or drive away the personal property of another, or who
shall fraudulently appropriate property which has been entrusted to him or her, or who
shall knowingly and designedly, by any false or fraudulent representation or pretense,
defraud any other person of money, labor or real or personal property, or who causes or
procures others to report falsely of his or her wealth or mercantile character and by thus
imposing upon any person, obtains credit and thereby fraudulently gets or obtains
possession of money, or property or obtains the labor or service of another, is guilty of
theft.”
          “„Theft,‟ as we have often held, „is a lesser included offense of robbery . . . .‟
[Citations.] Robbery comprises elements embracing the use of force or fear to effect a
taking from the victim [citation] and also an intent to steal [citation] accompanying the
use of such means [citation]. Theft comprises the same elements, including intent to
steal, with the pertinent exception of the use of force or fear. [Citation.]” (People v.
Waidla, supra, 22 Cal.4th at p. 737.)
          We do not agree with defendant‟s contention that he did not take any action that
posed a threat of an imminent unlawful injury as required for the robbery. Anguiano
testified that she was alone in a business that had a sizeable amount of cash. Defendant
hopped over the counter at the business and asked her for money. Anguiano also testified
that defendant approached her “like he had something” in his waistband, even though she
                                                 9
did not see anything. She reasonably thought that defendant would hit her if she didn‟t
cooperate and believed she had no choice but to open the drawer and give defendant
$1,400. Additionally, defendant threatened to come after her if she called the police.
       The record before the trial court lacked substantial evidence that the offense was
theft rather than robbery; there was no evidence the money was taken other than by force
or fear. Therefore, the trial court had no sua sponte duty to instruct the jury on the lesser
included offense of theft. (People v. Jones (1992) 2 Cal.App.4th 867, 871-872.)


C. Restitution Fine
       Defendant claims the amount of restitution imposed violates the constitutional
requirement that the punishment imposed be based upon facts reflected in the jury‟s
verdict. (Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403];
Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)
       At the sentencing hearing, the trial court ordered defendant to pay a $1,000
restitution fine pursuant to section 1202.4, subdivisions (b) through (f), and a
corresponding parole revocation fine (§ 1202.45), which was stayed pending revocation
of parole. Initially, the People contend that because defendant did not object to the
restitution fine, he forfeited his challenge to the fine amount. (People v. Nelson (2011)
51 Cal.4th 198, 227.) Defendant submits that the restitution order was an unauthorized
sentence and may be corrected at any time by the appellate court. (People v. Slattery
(2008) 167 Cal.App.4th 1091, 1095.) In addition, defendant cites a change in the law as
evidenced by S. Union Co. v. United States (2012) ___ U.S. ___ [132 S.Ct. 2344, 183
L.Ed.2d 318] as a reason that the claim should not be considered forfeited. Regardless,
we find defendant‟s claim is without merit.
       At the time of sentencing, section 1202.4 provided, in pertinent part: “(b) In
every case where a person is convicted of a crime, the court shall impose a separate and
additional restitution fine, unless it finds compelling and extraordinary reasons for not
doing so, and states those reasons on the record. [¶] (1) The restitution fine shall be set
at the discretion of the court and commensurate with the seriousness of the offense, but
                                              10
shall not be less than two hundred dollars ($200), and not more than ten thousand dollars
($10,000) . . . . [¶] . . . [¶] (d) In setting the amount of the fine pursuant to
subdivision (b) in excess of the two hundred-dollar ($200) . . . minimum, the court shall
consider any relevant factors, including . . . the defendant‟s inability to pay . . . .
Consideration of a defendant‟s inability to pay may include his or her future earning
capacity. A defendant shall bear the burden of demonstrating his or her inability to pay.
Express findings by the court as to the factors bearing on the amount of the fine shall not
be required. A separate hearing for the fine shall not be required.”
       Defendant‟s reliance on S. Union Co. for the proposition that the rule of Apprendi
applied to his restitution fine is misplaced. In S. Union Co., Southern Union Company
was convicted of multiple counts of violating federal environmental statutes. At
sentencing, the probation office set the fine at $38.1 million on the basis that Southern
Union violated the Act for 762 days. Southern Union objected because the jury was not
asked to determine the precise duration of the violation. (S. Union Co. v. United States,
supra, ___ U.S. ___ [132 S.Ct. at pp. 2349].)
       On appeal, the United States Supreme Court held that the tenets of common law
criminal jurisprudence and the constitutional requirements of an accusation and trial by
jury compel the conclusion that the jury must determine the facts that set the maximum
amount of a criminal fine. (S. Union Co. v. United States, supra, ___ U.S. ___ [132 S.Ct.
at pp. 2353-2355].) The court found no basis under Apprendi for treating criminal fines
differently than other findings made by the jury.
       Defendant contends that the case of People v. Kramis (2012) 209 Cal.App.4th 346,
351, review denied December 12, 2012, which held that S. Union Co. “does not impact
the restitution fine imposed” under section 1202.4, was wrongly decided. We disagree.
In Kramis, the court explained: “Apprendi and [S.] Union Co. do not apply when, as
here, the trial court exercises its discretion within a statutory range. [Citations.] As the
United States Supreme Court held in Apprendi, „[N]othing in [the common law and
constitutional history] suggests that it is impermissible for judges to exercise discretion—
taking into consideration various factors relating both to the offense and offender—in
                                               11
imposing a judgment within the range prescribed by statute.‟ [Citations.] . . . „Apprendi
distinguishes a “sentencing factor”—a “circumstance, which may be either aggravating
or mitigating in character, that supports a specific sentence within the range authorized by
the jury‟s finding that the defendant is guilty of a particular offense”—from a “sentence
enhancement”—“the functional equivalent of an element of a greater offense than the one
covered by the jury‟s guilty verdict” constituting “an increase beyond the maximum
authorized statutory sentence.” [Citation.]‟ [Citation.] Nothing in [S.] Union Co. alters
that holding. Under the applicable version of section 1202.4, subdivision (b)(1), absent
compelling and extraordinary circumstances, the trial court was required to impose a
restitution fine in an amount between $200 and $10,000.” (Kramis, supra, at p. 351,
italics omitted.)
       The $1,000 fine imposed on defendant was within the statutory range of $200 to
$10,000. Hence, there was no Apprendi violation. (People v. Kramis, supra, 209
Cal.App.4th at p. 351.)
       Moreover, under section 1202.4, an appropriate fine is $200 multiplied by the
number of years of imprisonment to which the defendant is sentenced. (Subd. (b)(2).)
Defendant was sentenced to 18 years in prison, and thus could have been given a $3,600
restitution fine. The $1,000 restitution fine imposed was presumptively appropriate, and
the trial court did not abuse its discretion (People v. Urbano (2005) 128 Cal.App.4th 396,
405) in setting it at that amount.




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                                   DISPOSITION


     The judgment is affirmed.



                                            JACKSON, J.


We concur:



             WOODS, Acting P. J.



             ZELON, J.




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