P. v. Murphy

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Filed 9/27/17 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
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THE PEOPLE,
Plaintiff and Respondent,
v.
TYRONE MURPHY,
Defendant and Appellant.
C082896
(Super. Ct. No. 15F07335)
A jury found defendant Tyrone Murphy guilty of numerous felonies, including
assault with a firearm and infliction of corporal injury resulting in a traumatic condition
on his wife, J.M., and found true the allegation that defendant personally used a firearm.
The trial court subsequently sentenced defendant to an aggregate term of 15 years eight
months in state prison.
On appeal, defendant contends the trial court erred in admitting at trial the
preliminary hearing testimony of his victim, J.M., as well as her earlier statements to law
enforcement. In support of his contention, defendant argues the People failed to establish
their due diligence in attempting to secure J.M.’s presence at trial. He also argues

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admission of J.M.’s preliminary hearing testimony and earlier statements to law
enforcement violated his Sixth Amendment right to confrontation and his constitutional
rights to due process and a fair trial.
We conclude the trial court properly admitted the evidence and affirm the
judgment.
I. BACKGROUND
A. The Attack
On the morning of November 20, 2015, defendant’s wife J.M. called 911. She
reported that defendant had “beat [her] up” 30 minutes earlier. She also said defendant
hit her in the face. J.M. reported that she believed defendant had a history of domestic
violence, but this was the first time she was reporting it. J.M. went outside to her car to
hide, “so he d[id]n’t hit [her] again.” She asked for immediate assistance; defendant was
throwing rocks at her car window. She pleaded for the police to “please come” and asked
why it was taking “so long.” The call was disconnected and J.M. immediately called
back. The 911 operator assured her that officers were on their way.
Sacramento Sheriff’s Deputy Joe Durran arrived at J.M.’s apartment complex at
approximately 8:45 a.m. J.M. told him that she and defendant had been together for six
years and had four children together. She and defendant argued in the bedroom of their
apartment that morning, each upset with the other’s infidelity. The argument became
physical when defendant suddenly hit J.M. several times with a closed fist in the head,
face, and chest. J.M. grabbed her keys and took refuge in her car. Defendant left the
apartment complex on foot with J.M.’s purse, which he threw in a neighbor’s yard across
the street. He then left in one of their vehicles. J.M. used a female bystander’s phone to
call 911.
J.M. told law enforcement that the left side of her head hurt, as did her chest area.
Detective Duran and Sacramento Police Officer Steven Lee noted that both sides of
J.M.’s face were red, as well as her chest. She had scratches on her neck and chest, a

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lump on the left side of her head, swelling to her right cheekbone, and the left side of her
forehead was swollen. Paramedics treated J.M.’s injuries but she refused to go to the
hospital.
Ten to 15 minutes after law enforcement left, J.M. called 911 a second time. She
said, “[M]y husband just shot at my car.” She repeated, “He just shot at my car!” The
shooting left a bullet hole in her car. Defendant took off after the shooting.
Law enforcement returned to J.M.’s apartment complex around 10:25 a.m. J.M.
gave the same account of the shooting to Officer Lee that she gave to the 911 operator.
J.M. also told Sacramento Sheriff’s Deputy Steven Rose she thought defendant was
trying to kill her. J.M. was scared and obtained an emergency protective order against
defendant.
B. Charges & Preliminary Hearing
Three weeks later, defendant was arrested and charged with numerous felonies,
including assault with a firearm (Pen. Code, § 245, subd. (a)(2)—count one) and
infliction of corporal injury resulting in a traumatic condition (Pen. Code, § 273.5—count
four). As to count one, it was alleged that defendant personally used a firearm (Pen.
Code, § 12022.5, subd. (a)).
At the preliminary hearing, J.M. testified that she and defendant have “four
beautiful children” together. She admitted she was injured the morning of November 20,
2015, but said it was from a “fistfight” with another woman. She recanted her prior
statements that defendant had been violent with her. She said she falsely accused
defendant “because [she] was mad at him.” She saw defendant that morning, but said he
left after the police responded to her first 911 call. J.M. also testified that she did not
know who shot at her that morning.
On June 30, 2016, the first day of trial, the prosecutor advised the court that J.M.
was “actively evading” service. He indicated that investigators were still trying to serve
her with a subpoena to appear.

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C. Motion to Have J.M. Declared Unavailable
During trial, the prosecutor made an offer of proof to the court that J.M. was
unavailable. The prosecutor noted that J.M. was subpoenaed and appeared at the
preliminary hearing. The court, however, did not order her back for the trial. It was the
prosecutor’s understanding that she had not appeared since. Two weeks earlier, he had
“process servers, detectives from the Sheriff’s Department and [his] own District
Attorney criminal investigators” assigned to assist him in locating J.M.
“The process server went to all known locations for her, talked to family members,
sat outside of her apartment, did everything he could in an attempt to locate her and could
not, down to he left a message with a maintenance man to keep an eye out for her. He
did receive one call that she had been sighted but by the time he received that call, he
could not find her.”
The prosecutor also advised the court that “Detective Stewart” worked to find J.M.
Stewart found J.M.’s car and “sat on her car for a while and never saw her.” Stewart
spoke with J.M.’s family members. Both Stewart and the process server “repeatedly”
spoke with J.M.’s mother, who could not help them locate J.M. They both waited for
J.M. at the site where she was to have supervised visitation with her children, but she did
not show. And they both “sat outside [J.M.’s] known locations for extended periods of
time, all of which they [were] never been able to find her.”
J.M. knew the People were looking for her because she called the victim advocate
who assisted her previously in the case. The advocate described J.M.’s tone as “hostile,
but she did indicate at one point that she would come to court on Monday[, the third day
of trial].” J.M. did not show.
The prosecutor himself had not had any contact with J.M. Defense counsel’s
investigator had contact with J.M. two months prior; she was still “staying at the
apartment that [was] listed in all of the reports as her residence.” Thus, defense counsel
said he “had no difficulty in finding her.”

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The prosecutor also noted for the court that J.M. “[was] aligned with the
defendant, assisting the defendant.” She repeatedly visited and received phone calls from
defendant in jail. She also would stand outside the jail where defendant could see her
from the window in his cell.
Defense counsel argued the preliminary hearing testimony was inadmissible
because prior defense counsel had not cross-examined J.M. at the preliminary hearing.
In finding due diligence, the court noted the People “certainly could have taken the
opportunity to have the trial [j]udge order her, recognize her and order her for this
hearing for future dates.” The court did not, however, find the failure to do so “fatal to a
claim of unavailability . . . , particularly given the posture of th[e] case.” The court noted
the prosecutor had been “actively, through multiple sources, seeking to attain [J.M.’s]
presence at th[e] hearing by way of law enforcement, [the People’s] own investigators,
trying multiple sources.” The court also found J.M. was “undoubtedly fully aware of the
proceedings” because she had made contact with the victim advocate.
The question, the court noted was whether that recent activity was sufficient. The
court found: “It seems to me that, based on all the evidence, the People’s recent efforts,
the witness’s hostility towards prosecution and her apparent desire to avoid process and
not be present, that I am prepared to find that she is unavailable for the purpose of the
hearsay exception.” The court then found her unavailable.
The court further ruled that prior defense counsel had the opportunity to cross-
examine J.M. at the preliminary hearing but made a tactical decision not to. The court
reasoned that J.M.’s testimony at the preliminary hearing was helpful to defendant
because she recanted her accusations of abuse.
D. Verdict & Sentencing
The jury found defendant guilty of inflicting corporal injury resulting in a
traumatic condition and assault with a firearm. They further found true the allegation that
defendant personally used a firearm. The trial court subsequently sentenced defendant to

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an aggregate term of 15 years eight months in state prison, including one year for
inflicting corporal injury, four years for assault with a firearm, and 10 years for
personally using a firearm. Defendant appeals.
II. DISCUSSION
J.M. testified at the preliminary hearing and recanted her report of abuse, but the
People could not find and serve her for trial. On July 12, 2016, during trial, the People
moved to deem J.M. an unavailable witness and admit at trial her preliminary hearing
testimony. The trial court heard the People’s offer of proof and argument from both
sides. Based on the People’s offer of proof, the trial court found due diligence, ruled J.M.
was unavailable as a witness, and ruled admissible her preliminary hearing testimony.
Defendant contends the admission of J.M.’s preliminary hearing testimony at trial,
along with her earlier statements to law enforcement, violated his constitutional rights to
confrontation, due process, and a fair trial. He contends there was insufficient evidence
to prove the People exercised due diligence to obtain her presence at trial, and it was
error to admit her prior testimony because he did not have a similar interest or motive in
cross-examining J.M. at the preliminary hearing. Defendant’s contentions lack merit.
A. Due Diligence
1. The Law
“A criminal defendant has the right, guaranteed by the confrontation clauses of
both the federal and state Constitutions, to confront the prosecution’s witnesses. (U.S.
Const., 6th Amend.; Cal. Const., art. 1, § 15.) The right of confrontation ‘seeks “to
ensure that the defendant is able to conduct a ‘personal examination and cross-
examination of the witness, in which [the defendant] has an opportunity, not only of
testing the recollection and sifting the conscience of the witness, but of compelling him to
stand face to face with the jury in order that they may look at him, and judge by his
demeanor upon the stand and the manner in which he gives his testimony whether he is
worthy of belief.’ ” [Citations.] To deny or significantly diminish this right deprives a

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defendant of the essential means of testing the credibility of the prosecution’s witnesses,
thus calling “into question the ultimate ‘ “integrity of the fact-finding process.” ’ ” ’ ”
(People v. Herrera (2010) 49 Cal.4th 613, 620-621 (Herrera).)
“Notwithstanding the importance of the confrontation right, it is not absolute.
[Citation.] Traditionally, there has been ‘an exception to the confrontation requirement
where a witness is unavailable and has given testimony at previous judicial proceedings
against the same defendant [and] which was subject to cross-examination . . . .’
[Citation.] Before the prosecution can introduce testimony from a prior judicial
proceeding, however, it ‘must . . . demonstrate the unavailability of’ the witness.
[Citation.] Generally, a witness is not unavailable for purposes of the right of
confrontation ‘unless the prosecutorial authorities have made a good-faith effort to obtain
[the witness’s] presence at trial.’ ” (People v. Cromer (2001) 24 Cal.4th 889, 897.)
In California, this traditional exception to the right of confrontation for prior
recorded testimony is codified in Evidence Code section 1291, subdivision (a), which
provides: “Evidence of former testimony is not made inadmissible by the hearsay rule if
the declarant is unavailable as a witness and: [¶] . . . [¶] (2) The party against whom the
former testimony is offered was a party to the action or proceeding in which the
testimony was given and had the right and opportunity to cross-examine the declarant
with an interest and motive similar to that which he has at the hearing.” A witness is
unavailable if “[a]bsent from the hearing and the proponent of his or her statement has
exercised reasonable diligence but has been unable to procure his or her attendance by the
court’s process.” (Evid. Code, § 240, subd. (a)(5).) “Reasonable diligence, often called
‘due diligence’ in case law, ‘ “connotes persevering application, untiring efforts in good
earnest, efforts of a substantial character.” ’ ” (People v. Cogswell (2010) 48 Cal.4th 467,
477.)
In determining whether the People exercised reasonable diligence in procuring
J.M.’s presence at trial, the factors we consider include “ ‘the timeliness of the search, the

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importance of the proffered testimony, and whether leads of the witness’s possible
location were competently explored.’ ” (Herrera, supra, 49 Cal.4th at p. 622.) Courts
have found reasonable diligence “when the prosecution’s efforts are timely, reasonably
extensive and carried out over a reasonable period,” but not where “the efforts of the
prosecutor or defense counsel have been perfunctory or obviously negligent.” (People v.
Bunyard (2009) 45 Cal.4th 836, 856, 855.) Reasonable diligence does not require
exhaustion of every possible means of investigation, only “reasonable efforts to locate the
witness.” (People v. Cummings (1993) 4 Cal.4th 1233, 1298.) “That additional efforts
might have been made or other lines of inquiry pursued does not affect” the finding of
reasonable diligence. (Ibid.)
“We review the trial court’s resolution of disputed factual issues under the
deferential substantial evidence standard [citation], and independently review whether the
facts demonstrate prosecutorial good faith and due diligence [citation].” (Herrera, supra,
49 Cal.4th at p. 623.)
2. Analysis
Defendant contends the People failed to show due diligence in procuring J.M.’s
presence at trial. He argues there was no due diligence hearing and no evidence “from
any law enforcement or other witness as to actual steps that had been taken to secure
[J.M]’s attendance.” He also argues the evidence of the People’s efforts was too vague,
there was affirmative evidence that J.M. could have been reached with due diligence, and
the search was not begun timely. We agree with the trial court’s finding of due diligence.
First, defendant misrepresents the record. Contrary to his assertion, there was a
hearing on due diligence. The trial court heard the People’s offer of proof regarding their
due diligence and heard defense counsel’s response to that offer of proof. The court
considered the proffer and the arguments of counsel and made its ruling. Defendant
offers no authority to support his contention that this was not a hearing. The argument,
should defendant have intended this to be an argument, therefore is forfeited. (People v.

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Hardy (1992) 2 Cal.4th 86, 150 [a reviewing court need not address any issue purportedly
raised without argument or citation to relevant authority]; Guthrey v. State of California
(1998) 63 Cal.App.4th 1108, 1115-1116 [merely setting forth general legal principles
without specifically demonstrating how they establish error is insufficient to raise a
cognizable issue on appeal]; Estate of Hoffman (1963) 213 Cal.App.2d 635, 639 [“It is
the duty of counsel to support his claim by argument and citation of authority. [A
reviewing court is] not obliged to perform the duty resting on counsel”].)
Second, defendant suggests, without actually making the argument, that counsel’s
offer of proof regarding the People’s due diligence was insufficient to establish due
diligence because “unsworn statements of counsel are not evidence” and there was no
testimony from law enforcement or other witnesses about the efforts made to secure
J.M.’s presence at trial. Defendant ignores the fact that trial counsel did not challenge the
People’s offer of proof, nor did counsel ask for an evidentiary hearing.
Defendant is thus arguing, or suggesting, that trial courts cannot rule on the
question of due diligence based on an offer of proof when no challenge is made to the
proffer and no request is made for an evidentiary hearing. Defendant, again, cites no
authority to support this assertion. If defendant intended this to be an argument in
support of his claim on appeal, we reject it. (People v. Hardy, supra, 2 Cal.4th at p. 150;
Guthrey v. State of California, supra, 63 Cal.App.4th at pp. 1115-1116; Estate of
Hoffman, supra, 213 Cal.App.2d at p. 639.)
Third, defendant criticizes the People’s evidence as “very broad, conclusory, and
somewhat unclear.” We disagree. The prosecutor’s offer of proof provided ample
evidence of the People’s due diligence.
The prosecutor advised the court that there were multiple individuals looking for
J.M. They went to all her “known locations,” including her car, and waited for “extended
periods of time” to see if she would arrive; she never did. They spoke with several of
J.M.’s family members, and repeatedly to J.M.’s mother, with no success. They asked a

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maintenance man at J.M.’s apartment to keep an eye out for her; when he called, they
went looking for her, again to no avail. They went to the location where she was
supposed to participate in supervised visitation with her children, but she failed to show
for that as well.
Furthermore, the trial court found J.M. was actively trying to avoid process and
the record supports that finding. J.M. contacted her victim’s advocate, but was “hostile.”
She said she would appear in court but did not. She had recanted her report of abuse and
otherwise appeared aligned with defendant; repeatedly visiting him and receiving his
calls from jail, and standing outside the jail so he could see her from the window in his
cell. Her willingness, therefore, to talk to defendant’s investigator is not, as defendant
suggests, evidence that the People could have made contact with more effort.
Defendant also criticizes the People’s failure to start the process earlier. We agree
with the trial court’s assessment that the People could have taken the opportunity to
secure J.M.’s presence at the preliminary hearing. But the People did not wait until “the
morning [] trial begins . . . after being out of touch for several months.” (People v. Avila
(2005) 131 Cal.App.4th 163, 169.) They last had contact with J.M. at the preliminary
hearing four months earlier. J.M. also appeared at the preliminary hearing even though
her testimony at that hearing indicated she was already re-aligned with defendant. The
People had contact information for several of J.M.’s family members and she was still
living in the same apartment. The People had no reason to believe J.M. would evade
service.
Accordingly, waiting until two weeks before trial to being the process of serving
J.M. did not demonstrate a lack of diligence. (People v. Linder (1971) 5 Cal.3d 342, 345-
347 [the defendant’s attempt to serve subpoena on missing ex-wife at last known address
one day before trial constituted due diligence where defendant’s attorney had previously
contacted former wife’s relatives and lawyer and hired detective trying to find her];
People v. Saucedo (1995) 33 Cal.App.4th 1230, 1236, disapproved on another point by

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People v. Cromer, supra, 24 Cal.4th 889, 901, fn. 3 [due diligence where police searched
a full week for witness]; People v. Smith (1971) 22 Cal.App.3d 25, 31-32 [due diligence
where subpoena issued one week before trial and witness had assured police he would be
available to testify]; People v. Rodriguez (1971) 18 Cal.App.3d 793, 796-797 [due
diligence where prosecution tried for six days before trial to serve subpoena on witness
hiding to avoid service because he feared testifying].)
Although more could have been done to serve J.M., the prosecution’s reasonable
efforts demonstrate due diligence. The standard for due diligence is reasonableness, not
perfection. (People v. Cummings, supra, 4 Cal.4th at p. 1298; People v. Diaz (2002)
95 Cal.App.4th 695, 706; People v. Wise (1994) 25 Cal.App.4th 339, 344.)
B. Right to Confront Witnesses
Defendant further claims that admission of J.M.’s preliminary hearing testimony
violated his Sixth Amendment right to confront witnesses. Specifically, he argues that
because his trial counsel opted not to cross-examine J.M. at the preliminary hearing and
because his “interest and motiv[ation]” at trial were different than at the preliminary
hearing, it was error to admit her preliminary hearing testimony at trial. (People v. Byron
(2009) 170 Cal.App.4th 657, 674.) We disagree.
Prior testimony of an unavailable witness is not made inadmissible by the hearsay
rule if, at the time the unavailable witness gave testimony, “the cross-examination was
made ‘with an interest and motive similar’ to that of the prior proceeding.” (People v.
Harris (2005) 37 Cal.4th 310, 332 (Harris); see Evid. Code, § 1291, subd. (a)(2).) The
“ ‘ “motives need not be identical, only ‘similar.’ ” ’ [Citation.] ‘Both the United States
Supreme Court and [the California Supreme Court] have concluded that “when a
defendant has had an opportunity to cross-examine a witness at the time of his or her
prior testimony, that testimony is deemed sufficiently reliable to satisfy the confrontation
requirement [citation], regardless whether subsequent circumstances bring into question
the accuracy or the completeness of the earlier testimony.” ’ ” (Harris, supra, at p. 333.)

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The admission of former testimony under such circumstances complies with
constitutional requirements “ ‘not because the opportunity to cross-examine the witness
at the preliminary hearing is considered an exact substitute for the right of confrontation
at trial [citation], but because the interests of justice are deemed served by a balancing of
the defendant’s right to effective cross-examination against the public’s interest in
effective prosecution.’ ” (People v. Samayoa (1997) 15 Cal.4th 795, 850.)
Preliminarily, the right to confront witnesses requires only that defendant be given
the opportunity to cross-examine witnesses. (Evid. Code, § 1291, subd. (a)(2); Harris,
supra, 37 Cal.4th at p. 333.) Defendant makes no argument that he was not given that
opportunity. Indeed, defendant was present at the preliminary hearing and was
represented by counsel. Trial counsel made a decision not to cross-examine J.M. and to
allow her recantation to stand on its own.
Additionally, defendant’s claim notwithstanding, his motive and interest in
questioning J.M. at the preliminary hearing were fundamentally the same as at trial; to
undermine her claim that defendant beat her. Defendant’s claim that he had no reason to
cross-examine J.M. at the preliminary hearing because she had withdrawn her accusation
ignores the evidentiary impact of J.M.’s recantation. Once J.M. renounced her claims of
abuse, defense counsel knew at the preliminary hearing that the prosecution would rely
on her inculpatory statements to law enforcement. Accordingly, the defense had the
same motive in the preliminary hearing as at trial, to undermine the validity of those early
statements to law enforcement.
In a related argument, defendant also contends the admission of J.M.’s statements
to law enforcement violated his Sixth Amendment right to confrontation. But those
statements were admitted only for purposes of impeachment, not their truth. “[T]he
confrontation clause does not prohibit the prosecution from impeaching the former
testimony of its own unavailable witnesses with their inconsistent statements, provided
those statements are admitted only for impeachment purposes.” (People v. Blacksher

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(2011) 52 Cal.4th 769, 808; see Evid. Code, § 1202.) Accordingly, J.M.’s out-of-court
statements to law enforcement were properly admitted.
C. Due Process and a Fair Trial
Defendant further contends that admission of J.M.’s preliminary hearing testimony
violated his constitutional right to due process and a fair trial. Defendant’s argument
lacks merit.
Defendant did not present a constitutional claim in the trial court. Therefore, his
constitutional claim on appeal is limited. Defendant may argue for the first time on
appeal that the asserted evidentiary error had the legal consequence of violating due
process, but our rejection on the merits of defendant’s claims of evidentiary error under
the statute necessarily leads us to reject his new claims of constitutional error. (See
People v. Partida (2005) 37 Cal.4th 428, 436-439.)
Moreover, our Supreme Court has “long observed that ‘[a]pplication of the
ordinary rules of evidence generally does not impermissibly infringe on a . . . defendant’s
constitutional rights.’ [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 26.)
Defendant does not persuade us this case presents an exception to this general rule.

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III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
BLEASE, Acting P. J.
/S/
ROBIE, J.

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