People v. Murphy CA2/3 ( 2023 )

Filed 6/20/23 P. v. Murphy CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B318416
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA150548
v.
GEORGE DEON MURPHY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Allen J. Webster, Jr., Judge. Affirmed.
Janyce Keiko Imata Blair, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Noah P. Hill and Steven E. Mercer,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
The People tried George Deon Murphy twice for murder,
attempted murder, and unlawfully possessing a firearm.
The first trial ended in a mistrial in November 2020. The
court continued the second trial several times over Murphy’s
objections, primarily because the prosecutor had trouble finding
her witnesses. Murphy’s second trial started in September 2021,
and the jury convicted him of all counts. On appeal, Murphy
argues the roughly 10-month delay between the mistrial and
start of the second trial violated his right to a speedy trial.
He also argues the trial court erred by imposing fines and
fees at sentencing without holding an ability-to-pay hearing.
We affirm.
FACTS AND PROCEDURAL BACKGROUND
On December 18, 2019, the People charged Murphy with
murder (Pen. Code, § 187, subd. (a); count 1),1 attempted willful,
deliberate, and premediated murder (§§ 187, subd. (a), 664;
count 2), and possession of a firearm by a felon (§ 29800,
subd. (a)(1); count 3). The People also alleged various firearm
enhancements on the murder and attempted murder counts.
Murphy was arraigned the same day, and he remained in
custody pending trial.
At Murphy’s request, the court continued trial to April 2,
2020. Due to the COVID-19 pandemic, in late March 2020,
the Los Angeles County courtrooms closed for judicial business
and the statutory deadlines for trials were extended repeatedly
by emergency orders. Under those orders, the court continued
1 Unless noted, undesignated statutory references are to the
Penal Code.
2
Murphy’s trial until November 2, 2020, setting the last day for
trial as November 9, 2020. Trial started on November 4, 2020.
The jury was unable to reach a unanimous verdict, and the
court declared a mistrial on November 23, 2020. Murphy waived
time until May 2021. After several continuances over Murphy’s
objections—which we discuss in detail below—the case was
called for trial on September 9, 2021.
At the second trial, the prosecution presented evidence
that Murphy had a child with Tanee Bufkin. Tanee’s sister,
Enjonae Bufkin,2 was in a relationship with Johnny Gladden.
According to Gladden, on October 25, 2019, he started a
physical fight with Murphy. During the fight, Murphy stabbed
Gladden in the arm, and Gladden hit Murphy with a metal pipe.
Enjonae ended the fight by spraying Gladden and Murphy
with mace.
A couple of weeks later, on November 5, 2019, Gladden’s
childhood friend, Lavon Wright, was visiting from out of town.
Gladden and Wright drove to a store in Gladden’s Jeep. Gladden
noticed Murphy’s car nearby. After leaving the store, they drove
to Tanee’s apartment and then to a bank.
On the way to the bank, a car pulled up beside Gladden’s
Jeep and started shooting at it. At the first trial, Gladden
testified he saw Murphy in the other car; at the second trial,
Gladden claimed he did not know if it was Murphy.
Wright was struck by a single bullet to the chest, which
was fatal. He was pronounced dead at the scene around
2 We refer to Tanee Bufkin and Enjonae Bufkin by their
first names for the sake of clarity. We mean no disrespect.
3
1:00 p.m. Several other bullets struck the Jeep, but Gladden
was not injured.
Shortly after the shooting, Gladden called Enjonae and
told her “this bitch ass nigga just shot up the car.” Enjonae
understood Gladden to be referring to Murphy.
Wright’s father, Lavon Wright, Sr., spoke to Gladden a
day or two after the shooting. According to Wright Sr., Gladden
told him the man who shot Wright had a child with Gladden’s
girlfriend’s sister. Gladden said he had previously fought
the shooter and had gotten the upper hand.
Fidel Bernal testified that he saw Murphy the day of
the shooting. Murphy had hired Bernal to replace broken glass
on one of his cars.3 Bernal showed up at Murphy’s house around
12:55 p.m. on November 5, 2019, and he sent Murphy a text
message stating, “I am here.” Murphy did not respond, so Bernal
called his phone several times; Murphy did not answer. At trial,
Bernal testified that he waited around 10 minutes before Murphy
returned home. At the preliminary hearing, Bernal testified
that he waited around 30 minutes.
Police interviewed Murphy the day after the shooting.
Murphy told the police that Gladden had previously beaten him
with a metal pipe and damaged his car. Murphy, however,
denied having anything to do with the shooting. Murphy said
he was out running errands the day of the shooting, but he was
never near the bank. According to Murphy, he was at home
when Bernal sent him a text message stating, “I’m here.”
3 Murphy allegedly was driving a different car at the time
of the shooting.
4
Murphy walked outside and saw Bernal down the street,
talking to someone else.
The prosecutor played for the jury surveillance videos
showing Gladden’s Jeep being followed by a light-colored sedan,
which resembled a car Murphy owned. Also, the parties
stipulated that Murphy had suffered a prior felony conviction
within the meaning of section 29800.
The jury found Murphy guilty as charged, and it found
true the firearm enhancements. The court sentenced Murphy
as follows: for murder (count 1), 25 years to life, plus 25 years
to life for the firearm enhancement (§ 12022.53, subd. (d)); for
attempted murder (count 2), life plus 20 years for the firearm
enhancement (§ 12022.53, subd. (c)); and for unlawful possession
of a firearm (count 3), three years concurrent with the sentence
on count 1. Without objection, the court imposed various fines
and fees.
Murphy timely appealed.
DISCUSSION
1. Murphy received a speedy trial
Murphy contends the delay between the end of his first
trial and the start of his second trial violated his statutory and
constitutional rights to a speedy trial.
a. Background
“In early March 2020, the Governor of California declared
a state of emergency in California, and the President declared
a national emergency due to the COVID-19 pandemic. Based
on health recommendations, the Chief Justice of the State
of California issued statewide emergency orders suspending
in-person jury trials and, among other things, extending
statutory deadlines for trials in criminal proceedings.
5
The Chief Justice authorized local courts to adopt local rules
to address the impact of the COVID-19 pandemic.” (Elias v.
Superior Court (2022) 78 Cal.App.5th 926, 931 (Elias).) Under
this authority, the Presiding Judge of the Los Angeles Superior
Court (LASC) issued a series of general orders extending the
deadlines to hold criminal trials.4
The court in this case declared a mistrial on November 23,
2020, and Murphy waived time until April 20, 2021, as day 0
of 30 for the start of the second trial. The original deadline
for the second trial to start, therefore, was May 21.5
The parties returned to court on Friday, May 14, and
Murphy announced ready. The court, however, noted the
4 (See, e.g., LASC General Order No. 19 (April 22, 2021)
[as of June 16, 2023],
archived at ; LASC General
Order No. 21 (May 20, 2021)
[as of June 16, 2023], archived at ; LASC General Order No. 22 (June 17, 2021)
[as of June 16, 2023], archived at
; LASC General Order No. 27
(July 19, 2021) [as of
June 16, 2023], archived at ;
LASC General Order No. 28 (Aug. 13, 2021)
[as of June 16, 2023], archived at
.)
5 Unless otherwise noted, all dates are in 2021.
6
People had asked to continue the trial until Monday, “based
upon the inability or difficulty of obtaining service on a material
witness . . . .” The prosecutor also told the court she had
subpoenaed Bernal—the glass repairman—to appear that day,
but he had not shown up to court. The court granted the
continuance and issued a body attachment for Bernal, which
it held at the People’s request. Murphy moved to dismiss
the case, which the court denied “as both being premature
and not mandated by law” because the statutory deadline for
trial had not yet passed.
On Monday, May 17, the prosecutor asked for another
continuance because she had not been able to serve the “named
victim.” Murphy moved to dismiss the case, which the court
denied as premature. The court explained that a recent
COVID-19 general order had extended trial deadlines by
30 days, meaning the last day for trial was now June 21.
At the prosecutor’s request, the court held the body attachment
for Bernal.
At some point before the next court date, the People
filed a motion to continue under section 1050, subdivision (g).
That provision provides there is good cause for a continuance
in a murder case if the prosecuting attorney has another
trial in progress. (§ 1050, subd. (g)(2).) Murphy conceded
the prosecutor had met the foundational requirements for
the continuance, but he moved to dismiss the case anyway.
The court denied the motion as premature, noting the statutory
deadline had not yet passed. The prosecutor asked the court
to continue to hold the body attachment for Bernal, which it did.
On June 18, the prosecutor again moved for a continuance
under section 1050, subdivision (g). Murphy objected, arguing
7
any further delay violated his state and federal speedy trial
and constitutional due process rights.
The court overruled Murphy’s objection and continued
the trial to July 8. In granting the continuance, the court noted
the LASC Presiding Judge’s latest general order had once again
extended trial deadlines by 30 days. The court also explained the
“People have a valid good cause because they are engaged in trial,
and this is a murder trial . . . .” At the prosecutor’s request, the
court held the body attachment for Bernal until July 8.
Murphy again announced ready on July 8, but the People
asked to continue trial to July 15. Murphy moved to dismiss with
prejudice, arguing any continuance under the latest COVID-19
general order was discretionary and the People’s reasons for
the continuance were not related to the pandemic.
The court denied Murphy’s motion and granted a
continuance. The court also agreed to continue holding the
body attachment for Bernal, but it noted that “[t]o the extent
that there’s a request for the Court to find due diligence on the
part of the People to secure their witness, it doesn’t look good.
You continue to ask me to hold the warrant, which means you
have no authority to arrest the witness, which suggests that
your office is not engaging in due diligence.”
On July 15, the People asked for another continuance,
and the court continued the trial to July 19. Murphy argued the
continuance was prejudicial because the People had “additional
time to get their evidence, to try to find their witness, and I object
and move to have the case dismissed with prejudice.” The court
denied the motion, noting the statutory deadline, as extended
by the COVID-19 general orders, had not yet passed.
8
On the next court date, July 19, the People again said they
were not ready. Defense counsel argued, “My client is extremely
frustrated, and I just want him to know that this not any of my
doing. [¶] I again am moving for this case to be dismissed on
due process grounds, State, Federal case law, and U.S. and State
constitution. We’re ready, and my client deserves his trial, and
he is very upset.”
The court said it shared Murphy’s frustrations and
was upset as well, although for different reasons. The court
explained: “I would . . . note that since April 20th, the People
have never been ready, so for the last three months, the
People have not been ready. [¶] There is an outstanding body
attachment for the witness who actually testified . . . .” “[a]t
the preliminary hearing . . . . [¶] The body attachment has never
been released. I think it has something to do with the policy of
the new district attorney, which is again somewhat frustrating
because the People can’t announce ready because they can’t
show due diligence of even attempting to get the witness in.
So the effect of the order is not to help the court; the effect of
the order is to enable the D.A. to not be prepared. [¶] . . . [I]t
has enabled the district attorney’s office to use this continuance
in a very inappropriate way.”
Despite its frustrations, the court denied Murphy’s motion
to dismiss because the statutory deadline had not yet passed,
and Murphy had not shown a violation of due process. The court
continued the trial to August 16, and again agreed to hold
Bernal’s body attachment until the next hearing.
On August 4, the court issued body attachments for
Enjonae and Gladden, which it held at the prosecutor’s request.
Five days later, on August 9, Enjonae and Gladden appeared in
9
court and the court recalled and quashed the body attachments.
The court ordered Enjonae and Gladden to return on August 16.
On Monday, August 16, the prosecutor asked for another
continuance because Wright’s father had suffered a stroke
over the weekend and had only recently been released from
the hospital. Murphy moved to dismiss, arguing the prosecutor
was using the emergency general orders to obtain continuances
unrelated to the pandemic.
The court granted the continuance and denied Murphy’s
motion, explaining the statutory deadline had been extended by
another 30 days under the latest general order. The court noted
it agreed with Murphy that the “general orders have enabled the
prosecution to continue cases without good cause, because that’s
what the current case law allows; however, in this instance there
has been a change in circumstances. Apparently, one of the
witnesses had a recent medical emergency.”
The court also noted that two witnesses who had previously
been unavailable—and were the reason the People had not
been ready for trial—were in the audience, which provided an
additional change in circumstances. It appears the court was
referring to Enjonae and Gladden. The court erroneously stated
there were outstanding body attachments for both witnesses.
The court proposed continuing the trial to August 25,
but defense counsel said he had a planned vacation in early
September. To accommodate counsel’s schedule, the court
continued the matter to September 9, with September 17
as the deadline to start trial. At the prosecutor’s request,
the court held the body attachment for Bernal.
The court called the case for trial on September 9, and
jury selection started the next day.
10
b. Relevant law
A defendant has the right to a speedy trial under both the
California and federal constitutions. (U.S. Const., 6th Amend.;
Cal. Const., art. I, § 15.) Although the speedy trial guarantees
are similar, they are independent and operate somewhat
differently. (People v. Martinez (2000) 22 Cal.4th 750, 765
(Martinez).)
The Sixth Amendment to the federal constitution provides
that, “[i]n all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial.” (U.S. Const., 6th Amend.) In
Barker v. Wingo (1972) 407 U.S. 514 (Barker), the United States
Supreme Court articulated a balancing test to determine whether
a delay in prosecution amounts to a violation of this right. (Id.
at p. 530.) Under that test, the court must consider four factors:
“the length of the delay, the reason for the delay, the defendant’s
assertion of the right, and prejudice to the defense caused by
the delay.” (Martinez, supra, 22 Cal.4th at p. 755.)
Similar to the federal constitution, the California
constitution guarantees a “defendant in a criminal cause . . .
the right to a speedy public trial . . . .” (Cal. Const., art. I, § 15.)
The Legislature implemented this right by enacting sections 1381
to 1389.8. (Martinez, supra, 22 Cal.4th at p. 766.) Section 1382,
subdivision (a) provides that, “unless good cause to the contrary
is shown,” a court “shall order the action to be dismissed” when a
defendant in a felony case “is not brought to trial within 60 days
of the defendant’s arraignment on an indictment or information,
. . . or, in case the cause is to be tried again following a mistrial,
. . . within 60 days after the mistrial has been declared . . . .”
(§ 1382, subd. (a)(2); see §§ 1049.5, 1050, subd. (e).)
11
“No affirmative showing of prejudice is necessary to
obtain a dismissal for violation of the state constitutional speedy
trial right as construed and implemented by statute. [Citation.]
Instead, ‘an unexcused delay beyond the time fixed in section
1382 of the Penal Code without defendant’s consent entitles
the defendant to a dismissal.’ [Citation.]” (Martinez, supra,
22 Cal.4th at p. 766.)
“Because the state constitutional speedy trial right is
self-executing and broader than its statutory implementation,
a defendant may claim a violation of the state Constitution’s
speedy trial right based on delay not covered by any statutory
speedy trial provision.” (Martinez, supra, 22 Cal.4th at p. 766.)
When a defendant claims a non-statutory violation of the right
to a speedy trial, the court “must balance the competing interests
involved to determine whether [the defendant] has been denied
his right to a speedy trial. The prejudicial effect of the delay
on [the defendant] must be weighed against any justification
for the delay.” (Jones v. Superior Court of Los Angeles County
(1970) 3 Cal.3d 734, 740.) The same balancing approach applies
when the defendant’s claim sounds in due process, rather than
the right to a speedy trial. (Scherling v. Superior Court of
Santa Clara Cty. (1978) 22 Cal.3d 493, 505.)
Unlike the federal constitutional standard, an
“ ‘uncommonly long’ ” delay does not trigger a presumption
of prejudice for claims arising under our state’s constitution.
(People v. Lowe (2007) 40 Cal.4th 937, 942.) Instead, the
defendant “must show that the delay has impaired the ability
to defend against the charged crime because, for instance,
a witness has become unavailable, evidence has disappeared,
or the memory of a potential witness has faded.” (Id. at p. 946.)
12
“The defense has the initial burden of showing prejudice from
a delay in bringing the defendant to trial. Once the defense
satisfies this burden, the prosecution must show justification
for the delay. If the prosecution does that, the trial court must
balance the prejudice to the defendant resulting from the delay
against the prosecution’s justification for the delay.” (Id. at
p. 942.)
c. The continuances did not violate section 1382
In passing, Murphy argues the trial court violated section
1382 by continuing his trial, without his consent, beyond the
60-day deadline.
Contrary to Murphy’s suggestions, the 60-day deadline
in section 1382 is not absolute. In times of emergency, including
epidemics, the presiding judge of a superior court may request,
and the Chief Justice of California may authorize, extensions
to the deadline. (Gov. Code, § 68115, subd. (a)(10).) Under this
authority, the LASC Presiding Judge issued emergency general
orders on April 22, May 20, June 17, July 19, and August 13,
2021. (See fn. 4, ante.) Those orders extended the section 1382
deadline by 30 days for cases where the last day for trial fell
between April 24 and May 21, May 22 and June 18, June 19 and
July 16, July 17 and August 13, and August 14 and August 27,
2021, respectively.
Here, Murphy waived time until April 20, as day 0 of 30
for purposes of section 1382. Therefore, under the above general
orders—which Murphy does not challenge on appeal—the last
day to start his second trial was September 17. Murphy’s case
was called for trial on September 9, and jury selection started
the next day. Trial, therefore, started before the deadline,
and there was no statutory violation. (See Elias, supra, 78
13
Cal.App.5th at 941 [finding no violation of section 1382 where
the statutory deadlines were extended by emergency orders
related to the COVID-19 pandemic].)
d. The continuances did not violate Murphy’s
constitutional rights
Murphy alternatively argues the delay between the
mistrial and start of his second trial violated his right to a speedy
trial under the federal and state constitutions. Although the
federal and state standards are not identical, because each
requires us to weigh many of the same factors, we consider
them together.
i. Length of the delay
The United States Supreme Court has explained that,
at least under the federal standard, the length of the delay
“is to some extent a triggering mechanism. Until there is some
delay which is presumptively prejudicial, there is no necessity
for inquiry into the other factors that go into the balance.
Nevertheless, because of the imprecision of the right to speedy
trial, the length of delay that will provoke such an inquiry
is necessarily dependent upon the peculiar circumstances of
the case.” (Barker, supra, 407 U.S. at pp. 530–531.) The issue
for the court to decide is whether the delay “has crossed the
threshold dividing ordinary from ‘presumptively prejudicial’ . . . .”
(Doggett v. U.S. (1992) 505 U.S. 647, 651–652.) The government
has not denied a defendant a speedy trial if it has “prosecuted his
case with customary promptness.” (Ibid.) Courts generally have
held a delay that “approaches one year” is sufficient to require
the court to balance the other Barker factors. (Doggett, at p. 652.)
Here, the total delay between the mistrial and the start
of the second trial was a little more than nine and a half months.
14
Murphy fails to point us to any authority holding a delay of
less than 10 months in a case of comparable magnitude is
presumptively prejudicial. Indeed, a ten-month delay is
not at all uncommon in murder cases.
Nevertheless, we will assume, for the sake of argument,
that the delay between the mistrial and Murphy’s second trial
was presumptively prejudicial. Accordingly, we must balance
the length of the delay with the other Barker factors: the reasons
for the delay, Murphy’s assertion of his rights, and the prejudice
he suffered.
ii. Reasons for the delay
When considering the reasons for a delay, a “deliberate
attempt to delay the trial in order to hamper the defense should
be weighted heavily against the government. A more neutral
reason such as negligence or overcrowded courts should be
weighted less heavily but nevertheless should be considered
since the ultimate responsibility for such circumstances must
rest with the government rather than with the defendant.
Finally, a valid reason, such as a missing witness, should serve
to justify appropriate delay.” (Barker, supra, 407 U.S. at p. 531,
fn. omitted.)
The record does not reveal the reason for the roughly
six-month delay immediately following the mistrial. Murphy,
however, agreed to waive time during that period. Therefore,
no matter the reason, the weight accorded to the delay is reduced.
(See People v. Landau (2013) 214 Cal.App.4th 1, 37 [when the
“delay was at [the defendant’s] request or with his consent,
the weight accorded the delay is reduced”].)
The court first granted a continuance over Murphy’s
objection on May 14. The prosecutor initially requested the
15
court continue the case only by one court day because she was
having difficulty “obtaining service on a material witness.”
The prosecutor did not name the witness. However, at the next
hearing, she requested an additional continuance because she
did not have the “named victim” under subpoena. Presumably,
then, the prosecutor was referring to Gladden in both instances.
Based on these representations, the court continued the case
until June 14.
Generally, a missing witness provides a valid reason to
delay a trial. (Barker, supra, 407 U.S. at p. 531.) In considering
whether to grant a continuance for that reason, a court should
consider whether “ ‘(1) the party seeking the delay has exercised
due diligence in securing the attendance of the witness at trial
by legal means, (2) the testimony of the witness is material,
(3) the testimony is not merely cumulative, (4) the attendance
of the witness can be obtained within a reasonable time, and
(5) the facts about which the witness is expected to testify cannot
otherwise be proven.’ [Citations.]” (Elias, supra, 78 Cal.App.5th
at pp. 938–939.)
Gladden was a named victim and the only known
eyewitness to the crimes. His testimony was the cornerstone
of the prosecution’s case, and the facts about which he was
expected to testify could not otherwise have been proven. When
the prosecutor requested the continuances, there was nothing
to suggest she would be unable to serve Gladden in a reasonable
time. Nor is there any indication that Gladden’s absence was the
result of the prosecutor’s negligence or deliberate actions. Under
these circumstances, and especially considering the importance
of Gladden’s testimony to the prosecution’s case, his absence
16
provided a valid reason to grant the continuances and justified
the one-month delay.
Turning to the next significant delay—which lasted
approximately three weeks, from June 14 through July 8—the
prosecutor requested two continuances because she was engaged
in trial on another matter. Murphy does not contest that this
constituted a valid reason for the continuances, nor could he.
The length of the delay, moreover, was relatively short and
reasonable under the circumstances.
The court granted additional continuances from July 8
through August 16, apparently because some of the prosecution’s
witnesses were missing. Murphy contends there was not good
cause for these continuances because the prosecutor had not
used all legal means to locate the missing witnesses. He points
to the prosecutor’s repeated requests that the court hold Bernal’s
body attachment, which the court noted “suggest[ ] that [the
prosecutor’s] office is not engaging in due diligence.” Murphy
also points to the court’s later remark that it was frustrated that
“the People can’t announce ready because they can’t show due
diligence of even attempting to get the witness in. So . . . the
effect of the [emergency COVID-19] order is to enable the D.A.
to not be prepared. [¶] . . . [I]t has enabled the district attorney’s
office to use this continuance in a very inappropriate way.”
Contrary to Murphy’s contentions, the record does not
show the continuances during this period were related to the
prosecutor’s requests that the court hold body attachments.
Although the prosecutor did not state on the record why she was
requesting the continuances, on August 16, the court noted that
Gladden and Enjonae were in the courtroom, and their presence
resolved the issue that had been causing the delays. Neither
17
the prosecutor nor Murphy corrected the court. Presumably,
then, the prosecutor requested the continuances because Gladden
and Enjonae were missing.
Unlike the body attachment for Bernal, the prosecutor
did not ask the court to hold the body attachments for Gladden
or Enjonae for a significant period. The court first issued the
attachments for Gladden and Enjonae on August 4, and it held
them only until August 9. The prosecutor, moreover, did not seek
any continuances during that brief time.
Nor is it obvious, as Murphy seems to suggest, that
the court found the prosecutor lacked good cause for the
continuances. The court’s remark that the prosecutor “is
not engaging in due diligence” concerned only her requests to
hold Bernal’s body attachment; it was not related to her trouble
finding Gladden and Enjonae, which appears to be the reason
she had requested the continuances. It also appears the court’s
statement that the “district attorney’s office” is using the
emergency general orders “in a very inappropriate way,” was
directed at the general policies of the District Attorney’s office,
rather than the prosecutor’s specific actions in this case. Indeed,
the court clarified that it was “not attacking or criticizing [the
prosecutor] personally.”
Even if the prosecutor’s lack of diligence had caused
the delays during this period, there is nothing even to suggest
she was deliberately delaying the trial in order to hamper
the defense. At most, the record supports a finding that the
prosecutor was negligent. Although a prosecutor’s negligence
weighs in favor of the defendant, because the delay here
was relatively short—roughly five weeks—it alone does not
substantially tip the scales in Murphy’s favor.
18
The last significant delay lasted from August 16 through
September 9. The prosecutor requested a short continuance
because one of her witnesses, Wright Sr., had recently suffered
a stroke. Murphy seems to concede this was a valid reason
to continue the trial. The court, moreover, extended the
continuance from August 25 until September 9 to accommodate
defense counsel’s schedule. That portion of the delay, therefore,
worked to benefit Murphy.
To summarize, Murphy consented to delay his second trial
by approximately six months, which amounted to more than
half of the 10-month period between the mistrial and the start
of the second trial. Of the remaining four months of delay
(roughly 16 weeks), around 10 weeks were related to the
prosecutor’s difficulty finding key witnesses, three and a half
weeks were related to the prosecutor’s trial in another case,
a week and a half was related to a witness’s medical condition,
and two and a half weeks were related to accommodating
defense counsel’s schedule.
iii. Murphy’s assertion of his rights
As to the next factor—the defendant’s assertion of his
rights—“[t]he strength of his efforts will be affected by the
length of the delay, to some extent by the reason for the delay,
and most particularly by the personal prejudice, which is
not always readily identifiable, that he experiences. The
more serious the deprivation, the more likely a defendant is
to complain. The defendant’s assertion of his speedy trial right,
then, is entitled to strong evidentiary weight in determining
whether the defendant is being deprived of the right.” (Barker,
supra, 407 U.S. at pp. 531–532.)
19
Here, between May and September 2021, Murphy
repeatedly asserted his right to a speedy trial and moved to
dismiss the case. He did not, however, seek writ relief after the
court denied his motions, which suggests he was not experiencing
extraordinary personal prejudice. Nevertheless, this factor
weighs in his favor.
iv. Prejudice
We assess the last factor—prejudice—in light of the
interests the right to a speedy trial was designed to protect,
with the most emphasis placed on the possibility that the
defense will be impaired. (Barker, supra, 407 U.S. at p. 532.)
“If witnesses die or disappear during a delay, the prejudice is
obvious. There is also prejudice if defense witnesses are unable
to recall accurately events of the distant past.” (Ibid.) If the
delay is “ ‘uncommonly long,’ ” prejudice is presumed, and the
defendant need not make an affirmative demonstration that the
government’s want of diligence prejudiced the defendant’s ability
to defend against the charge. (Martinez, supra, 22 Cal.4th at
p. 755.)
Murphy contends the delays caused him to suffer actual
prejudice because two of the prosecution’s witnesses—Bernal
and Wright Sr.—suffered medical conditions before the start
of the second trial. Bernal, for example, testified he no longer
has a “good memory” and “forget[s] a lot of things” after having
suffered three strokes. Wright Sr. was hospitalized after
suffering a stroke about a month before he testified at the
second trial.
As to Bernal, while we acknowledge the strokes likely
affected his memory of relevant events, Murphy has not shown
his recollection worsened during the specific period between the
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mistrial and the second trial. Bernal testified that he suffered
the strokes around 2019, well before the court declared a mistrial
in the first trial. Therefore, had the second trial not been delayed
beyond May 2021, Bernal likely would have given the same
testimony.
Even if Bernal’s memory had worsened during the delay,
Murphy has not shown it was prejudicial. To the contrary,
Bernal’s fading memory seems to have worked in Murphy’s favor.
Bernal was a key witness for the prosecution because he
contradicted Murphy’s alibi. Murphy claimed he was at home
at the time of the shooting, waiting for Bernal to repair glass
on his car. Bernal, however, testified that he arrived at Murphy’s
house right around the time of the shooting, and Murphy was
not home. At the preliminary hearing, Bernal testified that
he waited 30 minutes for Murphy. At trial, he testified that
he waited only 10 minutes. Bernal’s testimony at trial, in other
words, was more favorable to Murphy. Therefore, if anything,
the delay in trial was helpful for Murphy, at least with respect
to Bernal’s testimony.
Murphy similarly has not shown he was prejudiced by
the fact that Wright Sr. had suffered a stroke during the delay.
Unlike Bernal, Wright Sr. did not explicitly testify his memory
was impaired. Nor did he struggle to recall facts or to answer
any questions at trial. There is nothing to suggest the stroke
had any effect on his testimony, let alone an effect that harmed
Murphy.
Murphy alternatively argues he was prejudiced because
the delay in trial caused him to decompensate, which impaired
his ability to assist in his defense. In support, he points to
several instances where the court admonished him not to
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speak to or interrupt defense counsel while counsel was engaged
in other matters. Murphy also points out that he was charged
with assault for throwing a “ ‘brown liquid’ ” at a guard while in
custody, there is some indication he suffers from mental illness,
and he had a difficult childhood.
We do not doubt that prolonged pretrial incarceration has
significant psychological consequences. Nevertheless, there is
nothing in the record to suggest Murphy’s disruptive behavior
was specifically caused by the delay in trial, rather than a
reflection of his character. Indeed, most of the events upon which
Murphy relies occurred before the mistrial, and there seem to
have been fewer disruptive incidents as time went by. We also
fail to see how Murphy’s history of mental illness and childhood
trauma are connected to the delay in trial.
v. Balancing
Balancing the above factors and considering them in the
context of the entire record, we conclude the delay did not violate
Murphy’s federal or state constitutional rights. A 10-month delay
before trial is not uncommon, especially for a case involving a
murder and attempted murder. Tellingly, Murphy repeatedly
agreed to waive time between November 2020 and May 2021,
and he objected only to a fraction of the total delay. As to that
portion—which totaled roughly four months—the court granted
continuances because the prosecutor was struggling to find key
witnesses, the prosecutor was engaged in another trial, a witness
suffered a serious medical emergency, and defense counsel had
a scheduling conflict. Each continuance was supported by a valid
reason or worked to Murphy’s benefit. Murphy, moreover, has
not shown the prosecutor deliberately delayed trial in order to
hamper his defense; at worst, she was negligent for a few weeks.
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Nor has Murphy shown any concrete prejudice caused by
the delay. Although two witnesses suffered strokes before trial,
the record does not show the delay itself affected their testimony
in a manner detrimental to Murphy. In fact, Bernal’s trial
testimony was more beneficial to Murphy than the testimony
he gave before the delay. While we acknowledge that Murphy
remained in custody during the delay, “[l]engthy pretrial
incarceration ‘ “ ‘unenhanced by tangible impairment of
the defense function and unsupported by a better showing
on the other [Barker] factors than was made here, does not
alone make out a deprivation of the right to a speedy trial.’ ” ’
[Citation.]” (Elias, supra, 78 Cal.App.5th at p. 943.) Under these
circumstances, Murphy has not shown the delay in trial violated
his constitutional rights.
2. Murphy is not entitled to an ability-to-pay hearing
At sentencing, the court imposed a restitution fine of $300
(§ 1202.4, subd. (b)), a stayed parole revocation restitution fine
of $300 (§ 1202.45), court security fees (§ 1465.8, subd. (a)(1)),
and a criminal conviction assessment (Gov. Code, § 70373).
Murphy argues the court’s imposition of the fines and fees
without a determination that he had an ability to pay violated
due process, citing People v. Dueñas (2019) 30 Cal.App.5th 1157,
1164. Dueñas, decided in January 2019, held that due process
of law requires a trial court to determine a defendant’s present
ability to pay before imposing court facilities and court operations
assessments or a restitution fine. (Id. at pp. 1164, 1172.)
Although Murphy’s February 8, 2022 sentencing hearing
was more than three years after the Dueñas decision, he did
not object to the imposed costs. This typically forfeits the right
to challenge the fines and fees on appeal. (People v. Aguilar
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(2015) 60 Cal.4th 862, 864; People v. Trujillo (2015) 60 Cal.4th
850, 856–859; People v. McCullough (2013) 56 Cal.4th 589, 597–
598.) Applying this general rule, we conclude Murphy forfeited
the issue. (See People v. Frandsen (2019) 33 Cal.App.5th 1126,
1153–1155.)
DISPOSITION
We affirm the judgment.
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
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