Filed 2/26/16 P. v. Murphy CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C076844

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F08127)

         v.

CARL FREDERICK MURPHY,

                   Defendant and Appellant.




         The trial court instructed the jury on felony murder, but although defendant Carl
Frederick Murphy was charged with a felony-murder special circumstance, the court did
not instruct the jury on the special circumstance. The jury found defendant guilty of first
degree murder and found the felony-murder special-circumstance enhancement to be
true. The Attorney General concedes instructional error but contends it was harmless
beyond a reasonable doubt. We agree and affirm the judgment.
                                                        FACTS
         Defendant argues on appeal, as he did throughout the trial, that the prosecution’s
case rested on the testimony of Naquinne Andrews, a liar and perjurer who was granted



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immunity despite the fact he gave eight different versions of the facts, including a
perjured account at the preliminary hearing. It is true the jury became well acquainted
with Andrews’s lack of credibility. Nevertheless, defendant does not challenge the
sufficiency of the evidence on appeal. Consequently, we need not explore the nuances of
each version of the facts Andrews recounted during the investigation, preliminary
hearing, and trial. Suffice it to say, his story changed with each telling.
       The version Andrews gave at trial provides a sufficient factual context for our
discussion of the instructional error. Andrews and defendant are both parolees, and they
both attended the same parolee reentry program. Defendant has tattoos on his face. On
October 22, 2012, defendant called Andrews to ask him if he had three pounds of
marijuana, and defendant told Andrews he had $5,000. Andrews was living with his half
brother at the time, and Andrews’s girlfriend had been living with them for about a week.
She had not seen large amounts of marijuana in the apartment. During several phone
calls, defendant and Andrews agreed to meet.
       Andrews drove his girlfriend’s car to the meet-up. There were two pounds of
marijuana in an open duffel bag in the back seat and another bag of marijuana in a plastic
bag on the floor by his brother, who was riding in the front seat as a passenger. As they
arrived at their destination but before they had parked, defendant and another man
jumped into the back seat of the car. Defendant pulled out a gun and Andrews’s brother
tried to disarm him. The other man grabbed the duffel bag and ran. Defendant fired four
or five shots and then jumped out of the car and ran in the direction of his partner.
       Andrews was not sure if his brother was still alive. He panicked and drove to their
apartment, waking up his girlfriend from a nap. She drove them to the hospital, where
Andrews’s brother died. Andrews gave his first fabricated account of what had happened
when interviewed by the police.
       The defense was factual innocence. Defense counsel argued that Andrews had set
up a drug deal to rob his own brother. He insisted that Andrews had accused defendant, a

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random parolee he had met in a rehabilitation program, because defendant was a black
man with tattoos on his face.
        In rebuttal, the prosecutor pointed to evidence that corroborated Andrews’s final
story. He emphasized the cell phone records. On the night of the shooting Andrews told
the investigators they could find the shooter by locating a cell phone with the number
(916) 912-0297 (0297). Defendant, Andrews explained, had called him from this number
to arrange the sale. An expert on cell phone records and cell tower information testified
that he infers who is using the cell phone from the contents of the text messages that are
sent.
        Although the cell phone was not registered in defendant’s name, his parole officer
testified he used it to call him on three occasions before the shooting. The records
showed numerous calls and text messages to Andrews’s phone on the day of the
shooting. Cell phone 0297 was deactivated later the same day.
        The contents of the text messages were also incriminating. A text sent three days
before the shooting from 0297 stated, “[a]m out here trying to find something to hit.”
The expert translated the text to mean the person using 0297 was trying to get some
money together and the parties then discussed what kind of drugs to sell. The person
using 0297 suggested selling “weed” or “dope crystal,” which the expert translated to
mean marijuana or methamphetamine.
        On October 22 the person using 0297 was located about 0.6 mile from the
shooting. The user wrote, “Bro I got a lick for the 3 pounds do you have a hammer need
it bad.” The expert explained to the jury that “lick” meant robbery, “3 pounds” meant the
amount of drugs, and “hammer” meant a gun. The records showed numerous calls
between 0297 and Andrews’s phone on the same day. Defendant’s girlfriend, Karen
Brazil, texted 0297 and referred to the recipient as “Kaderion,” which is how she referred
to defendant in a monitored phone call following his arrest. In response to her question,



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“Ok so when ima see u,” the person using 0297 responded, “When I take care of this lil
biz am handleing. Trying put something in motion.”
       The records from the parolee reentry program also corroborated Andrews’s
testimony. The records demonstrate the two parolees were in attendance at the program
on 14 different days in the spring of 2012.
       Andrews testified that defendant selected the meet-up location because it was
close to defendant’s grandmother’s house.
       There was no evidence, other than Andrews’s testimony, that defendant was
known by the nickname “Tay.”
                                       DISCUSSION
       Defendant urges us to reverse his sentence of life without the possibility of parole
because the trial court’s failure to instruct on the special circumstance allegation violated
his federal constitutional rights to a jury trial and due process. He contends the error
constitutes structural error requiring an automatic reversal without consideration of
whether the error was harmless. The California Supreme Court rejected this argument in
a similar case.
       In People v. Mil (2012) 53 Cal.4th 400 (Mil), the defendant argued that a trial
court’s failure to instruct on more than one essential element of the charged offense
constitutes structural error and thus cannot be cured by a finding the omission is
harmless. The court recognized that most constitutional errors can be harmless. As a
consequence, unless the error is a defect that affects the very “ ‘ “framework within
which the trial proceeds” ’ ” (id. at p. 410), where an instruction omits multiple elements
of the offense or special circumstance allegation “but the elements were uncontested and
supported by overwhelming evidence, it would not necessarily follow that the trial was
fundamentally unfair or an unreliable vehicle for determining guilt or innocence” (id. at
p. 411).



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       Quoting People v. Cummings (1993) 4 Cal.4th 1233 (Cummings), the Supreme
Court acknowledged that the omission of “ ‘substantially all of the elements’ ” of a
charged offense is reversible per se (Mil, supra, 54 Cal.4th at p. 413). The court held,
however, that “[t]he critical inquiry . . . is not the number of omitted elements but the
nature of the issues removed from the jury’s consideration. Where the effect of the
omission can be ‘quantitatively assessed’ in the context of the entire record . . . , the
failure to instruct on one or more elements is mere ‘ “trial error” ’ and thus amenable to
harmless error review. [Citation.]” (Id. at pp. 413-414.)
       Like the Supreme Court in Mil, we do not find that the omission here is akin to the
structural error found in Cummings. In Cummings, the trial court failed to instruct the
jury on the elements of robbery, which was the subject of many of the charges against the
defendant. Thus, the court’s failure to instruct rendered the trial unfair and prevented the
trial from “reliably serving its function as the means for determining defendant’s guilt or
innocence.” (Mil, supra, 53 Cal.4th at p. 416.)
       Here the jury was instructed on felony murder in relevant part as follows: “The
defendant is charged with murder, under a theory of felony murder.
       “To prove that the defendant is guilty of first degree murder under this theory, the
People must prove that:
       “1. The defendant committed or attempted to commit robbery in violation of
Penal Code section 211.
       “2. The defendant intended to commit robbery;
       “AND
       “3. While committing or attempting to commit robbery, the defendant caused the
death of another person.
       “A person may be guilty of felony murder even if the killing was unintentional,
accidental, or negligent. [¶] . . . [¶]



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       “The defendant must have intended to commit the felony of [sic] before or at the
time that he caused the death.” (CALCRIM No. 540A.)
       The elements of the robbery-felony-murder special circumstance are set forth in
CALCRIM No. 730, but the trial court failed to give the standardized instruction. The
elements are nearly identical to the elements of first degree felony murder:
       “1. The defendant committed robbery;
       “2. The defendant intended to commit robbery;
       “AND
       “3. The defendant did an act that caused the death of another person.” (Ibid.)
       There is no requirement that the perpetrator entertain the intent to kill for either the
offense of felony murder or the robbery-felony-murder special circumstance. (People v.
Andreasen (2013) 214 Cal.App.4th 70, 81.) Yet to satisfy due process, the special
circumstance must be distinct from felony murder. “[T]he felony-murder offense is
established merely upon a showing that the defendant killed during the commission or
attempted commission of the felony, whereas the felony-murder special circumstance
requires an additional showing that the intent to commit the felony was independent of
the killing.” (Id. at p. 80.)
        The jury was required to find, therefore, each of the elements of a special-
circumstance felony murder pursuant to the instructions on felony murder other than the
final element—the independent felonious intent. Under these circumstances, we
conclude, as the Supreme Court did in Mil, that the omission neither wholly withdrew
substantially all of the elements of the special circumstance nor did it so vitiate all of the
jury’s findings as to render the trial fundamentally unfair and effectively deny defendant
a jury trial altogether. As a consequence, the omission does not constitute structural error
and does not require reversal per se. Because the error is amenable to harmless error
analysis, we must determine “whether it appears beyond a reasonable doubt that the error
did not contribute to the jury’s verdict.” (Mil, supra, 53 Cal.4th at p. 417.)

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       The Attorney General maintains the instructional error is harmless because the
jury’s findings on first degree felony murder established the elements of the felony-
murder special circumstance. The Attorney General’s argument is premised on her
assertion that the elements of each are identical. Defendant points out there must be a
distinction between felony murder and the felony-murder special circumstance to
preserve the constitutionality of the Penal Code section 190.2, subdivision (a)(17) felony-
murder special circumstance. (People v. Green (1980) 27 Cal.3d 1, 59-61 (disapproved
on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3.) That distinction, as
explained above, is an independent intent to commit the felony that is not merely
incidental to the murder.
       It is true that in finding defendant guilty of first degree felony murder it
necessarily found defendant committed a robbery, and he intended to commit a robbery at
or before the time he caused the death of the victim during the commission of the
robbery. Those findings come close to finding each of the requisite elements of the
special circumstance. Yet defendant insists these findings are not sufficient because they
do not include a finding that he entertained an independent intent to commit robbery and
not to merely further the murder. People v. Prieto (2003) 30 Cal.4th 226 (Prieto) and
People v. Harden (2003) 110 Cal.App.4th 848 (Harden) provide excellent templates for a
harmless error analysis where, as here, there was no evidence that reasonably or
rationally suggests defendant committed the robbery to advance the murder.
       In Prieto, supra, 30 Cal.4th 226, the Supreme Court found the instructional error
on the felony-murder special circumstance harmless error and explained its rationale as
follows: “In this case, ‘there was no evidence that reasonably or rationally suggests that’
defendant committed the robberies, kidnappings, or rapes in order to carry out or advance
the murder. [Citation.] . . . No evidence suggests that defendant or his cohorts intended
to murder [the victim] at the time they formed the intent to rob and kidnap the women or
that the robberies and kidnapping were incidental to the murder. Rather, the evidence

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strongly suggests that defendant committed the murder in order to advance the robberies
and kidnappings or ‘to facilitate the escape therefrom or to avoid detection.’ . . . At best,
this evidence suggests that defendant developed the intent to kill [the victim] and the
intent to rape her at the same time. . . . Thus, the evidence shows that defendant
committed the murder to advance the rape or to facilitate his escape or to avoid
detection—and did not commit the rape to further the murder.” (Id. at p. 257.)
       Similarly, in Harden, supra, 110 Cal.App.4th 848, there was no evidence that
reasonably or rationally shows the defendant committed a robbery or burglary to carry
out a murder. The court wrote: “No evidence suggests Harden intended to murder
Alfred before or at the time she formed the intent to rob Alfred and burglarize the
Polchows’ home or that the robbery and burglary were incidental to the murder.
[Citation.] Rather, the evidence overwhelmingly suggests Harden committed the murder
to advance the robbery and burglary.” (Id. at p. 866.) Again, the court found the
instructional error on the special circumstance harmless beyond a reasonable doubt.
       The same is true here. There is no evidence and the parties did not argue that
defendant robbed Andrews and his brother to facilitate the murder. In fact, the evidence
was overwhelming that defendant planned the robbery and not a murder. Andrews
testified he arranged a sale of marijuana with defendant. Defendant’s text messages,
however, make clear that defendant intended to steal the marijuana, not to buy it. And he
intended to take it by force or fear. His text message read, “Bro I got a lick for the
3 pounds do you have a hammer need it bad.” As pointed out, ante, lick is a slang term
for robbery and hammer means gun. Moreover, his behavior was consistent with an
intent to commit robbery. As soon as Andrews pulled up, defendant and his partner
jumped into the car, and his partner grabbed the duffel bag of marijuana and fled.
Defendant did not shoot the victim until after the victim lunged at him. We agree with
the Attorney General that this sequence of events indicates defendant only formed the
intent to kill after the victim attempted to disrupt the robbery.

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      There is no evidence defendant bore the victim any ill will or had any motive to
kill him in advance of the robbery. All of the evidence suggests a robbery gone awry. In
the absence of any evidence upon which a jury could reasonably and rationally conclude
he intended the robbery only as a means to murder the victim, the court’s instructional
omission was harmless beyond a reasonable doubt.
                                     DISPOSITION
      The judgment is affirmed.



                                                          RAYE              , P. J.



We concur:



      NICHOLSON            , J.



      RENNER               , J.




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