IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 15, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RICHARD WILLIAM KOSSAKOWSKI, DEFENDANT AND APPELLANT.
APPEAL from the Superior Court of Riverside County. Rick S. Brown, Judge. (Retired judge of the Santa Barbara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions. (Super.Ct.Nos. SWF028703 & SWF028761)
The opinion of the court was delivered by: Acting P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 case No. SWF028703, a jury found defendant and appellant Richard William Kossakowski guilty of inflicting corporal injury on a spouse. (Pen. Code, § 273.5, subd. (a), count 1.) It also convicted him of misdemeanor assault (Pen. Code, § 240), a lesser included offense of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1), count 2). Defendant admitted that he served one prior prison term. (Pen. Code, § 667.5, subd. (a).) The trial court sentenced him to five years in state prison: four years in state prison on count 1; 30 days in county jail (stayed) on count 2 (Pen. Code, § 654); and a consecutive term of one year in state prison for the prison prior.
On appeal, defendant contends that the trial court improperly admitted the preliminary hearing testimony of the victim at trial. We affirm.*fn1
The victim and defendant, who were married, lived in a mobilehome park in Lake Elsinore. On May 26, 2009, the victim drank three malt liquor drinks in the afternoon. Defendant and the victim started arguing. The victim locked herself in the bedroom. She knew defendant was at the bedroom door, so she went to open it, and defendant "opened the door in [her] face." After further arguing, the victim lay down on the bed. Defendant put his hands around her neck and started choking her until she could not breathe. She felt like she was losing consciousness. The couple struggled with each other until the victim fell off the bed. Defendant stopped choking her for a minute, but then started again. He finally stopped when the victim pretended to be dead. After defendant stopped choking her, the victim ran out of the mobilehome and down the street. Defendant ran after the victim, caught her, and spun her around.
Two witnesses, Devin Fowler and Kevin Noonan, were talking outside with some other friends when they heard someone yelling and screaming for help. The witnesses walked toward the mobilehome park, where the noise was coming from. At trial, Fowler testified as to what he saw: "A guy had his hands around a girl's neck." The victim was gasping for air, and "was just trying to get away from him." Noonan testified that the victim was yelling, "'Let go of me'" and "'stop.'" Noonan yelled at the man, "'Stop, let go of her.'" Defendant did not let go of the victim until both witnesses came within a few feet of them. Defendant backed off and said, "'Oh there's nothing going on.'" The victim was crying.
Deputy Ibarra was dispatched to the scene just before midnight. The witnesses pointed the deputy in the direction of the couple. When the deputy approached the couple, they were walking back toward their mobilehome, and the victim was still crying. Deputy Ibarra placed defendant in the back of the patrol car and spoke to the victim. The victim showed "signs of fear," and she would only speak with the deputy if they were "completely out of sight of [defendant]." The victim told Deputy Ibarra that she had been "assaulted by her husband." Deputy Ibarra observed large blotches of red marks around her entire neck. There was no bruising, so the deputy estimated that the marks were "fairly recent." He took photographs of the marks on her neck, and they were admitted into evidence at trial.
On June 6, 2009, defendant, who was then an inmate in county jail, placed a telephone call to the victim, which was recorded and transcribed. A recording of the call was played for the jury at trial. During the call, the victim was talking about the incident and said that defendant "flipped out." Defendant recalled that the victim was upset and ran out the door, and that he "came out chasing [her]." The victim replied, "Oh, my God, what is wrong with you? Yeah, that's why I have a string of bruises around my neck . . . 'cuz you don't remember . . . going in that bedroom . . . choking me?" Defendant said, "Why . . . would you rat me off and put me in here for shit like that anyway?" The victim replied, "Why . . . would you ever put your hands on me again?" She reminded defendant that he promised he would never hurt her again. Defendant asked, "Why were we drinking to begin with?" She responded, "What does that have to do with you laying your hands on me?" Defendant said, "I don't think any of this would have happened if we weren't drinking." He then apologized to her.
I. The Trial Court Properly Admitted the Victim's Preliminary Hearing Testimony
Defendant contends the trial court erred in admitting the preliminary hearing testimony of the victim, in violation of his state and federal constitutional rights to confront and cross-examine witnesses. He argues that the prosecutor did not exercise due diligence in attempting to secure the victim's attendance at trial and claims that her unavailability was caused by the People's own "negligent or otherwise improper acts in relocating [the victim] to another jurisdiction (i.e., Florida), failing to properly monitor her whereabouts in that jurisdiction, and unjustifiably relying on her promises to appear." We conclude that the trial court properly admitted the testimony, and that any error in admitting it was harmless.
A. Relevant Background
On June 22, 2009, the victim testified at the preliminary hearing. She testified that, on May 26, 2009, she and defendant "got in a fight," she went into the bedroom, and he came in and started choking her. She pretended to be dead, in order to escape. Then she ran out of the bedroom and down the street. The victim said that some people across the street saw defendant chase her and spin her around. She also said that, as a result of defendant choking her, she had bruises on her neck for two weeks.
Prior to trial, on November 16, 2009, the trial court held a hearing pursuant to Evidence Code section 402. The prosecution requested to admit the preliminary hearing testimony of the victim, since she was unavailable as a witness at trial. Ms. Soto, a victim services advocate with the Riverside County District Attorney's Office, testified that her initial contact with the victim was via the telephone, and that the victim was "afraid to come into court." However, the victim testified at the preliminary hearing. After the preliminary hearing, the victim requested to be relocated because "[s]he was afraid to be in the area," since she feared that defendant would post bail and contact her. Defendant had already contacted her "[n]umerous times" via text messages and telephone calls. Ms. Soto explained the "victims of crime program" to the victim, and the victim applied. Upon being accepted, Ms. Soto assisted the victim with purchasing an airplane ticket to Florida. Florida was a place the victim was familiar with and where she had a support system. Ms. Soto gave the victim a prepaid cell phone (a Hope Line), so they could stay in contact. Before the victim left California, she gave Ms. Soto two contact numbers in Florida. After the victim relocated, Ms. Soto was able to reach the victim on a "[p]retty regular" basis via the Hope Line or the other telephone numbers. In early October 2009, the victim confirmed with Ms. Soto that she had received a subpoena to appear in court at defendant's trial. The victim was afraid to come back, but she agreed to appear. At some point, the victim stopped returning Ms. Soto's telephone calls. During the weeks leading up to the trial, Ms. Soto attempted to contact the victim on her Hope Line at least 30 times. She also attempted to reach the victim via text messages at least five or six times, and she left messages on one of the alternate contact telephone numbers at least 10 times. Over the weekend just before the trial, Ms. Soto called the victim's Hope Line about six times on Thursday, six times during the day on Friday, and then "after hours" every half hour until 9:30 p.m. On Saturday, Ms. Soto called her every 20 minutes, from about 6:00 a.m. to 2:00 p.m.
Riverside County District Attorney's Office Investigator Thompson also testified at the hearing. He said he first attempted to locate the victim by calling her on November 4, 2009. He called her on the Hope Line 10 to 15 times that day, and he left a message with her friend on another contact line on November 10, 2009. On November 10, 2009, Investigator Thompson asked local law enforcement officers in Florida to check three separate addresses they had listed for the victim. The victim was not at any of the addresses. Investigator Thompson spoke with an officer in Florida, Officer Mott, who indicated that he would send an e-mail to fellow officers with Investigator Thompson's contact information, in case any of them located the victim.
On November 12, 2009, the victim returned Investigator Thompson's call. They discussed the victim coming back for the trial, and the victim said it would be hard because of her work schedule. Investigator Thompson told her the date she would need to come to trial, and said that Ms. Soto would be calling her again the next day at 4:15 p.m. Both Ms. Soto and Investigator Thompson tried to call the victim multiple times the following day, but she did not answer the telephone.
Investigator Thompson called her late Friday night and then again on Monday morning, but could not reach her. Local law enforcement never called Investigator Thompson to say they had located the victim. Investigator Thompson testified that the purpose of getting the local police involved was to find an accurate address or a telephone number for the victim. However, he testified that the district attorney's office was also attempting to obtain an out-of-state subpoena for the victim; but, the office did not have an accurate address for her.*fn2
The prosecutor argued that if a witness would not appear willingly, the only way to get an out-of-state witness to appear was by subpoena. This required the witness to be ordered into court in his or her jurisdiction, hold a hearing, and have the judge order the witness to appear in the other jurisdiction. The prosecutor argued that they could not get somebody to appear in another jurisdiction if they did not know where they were. The district attorney's office did not find out where the victim worked until she told Investigator Thompson on the Thursday before trial. Thus, the district attorney's office did not have enough time to use the out-of-state subpoena process.
Defense counsel contended that the prosecution did not exercise due diligence since it should have started its efforts to locate the victim earlier, should have "triangulated" her telephone, and should have gotten an out-of-state subpoena. In addition, defense counsel argued that the prosecution was negligent in sending the victim to Florida, and that it should have had the court order her back to California after the preliminary hearing. Lastly, defense counsel said that the prior defense attorney was unable to adequately cross-examine the victim at the preliminary hearing because he did not have access "to numerous witnesses and reports" at the time of that hearing.
The trial court acknowledged that after the preliminary hearing, the victim moved to Florida and she kept in constant telephone contact with the district attorney's office. The trial court surmised that the People were perhaps led to believe the victim was cooperative, in light of the ongoing telephone calls and her appearance and testimony at the preliminary hearing. The trial court found that, once the victim stopped returning telephone calls, the People made serious efforts to contact her, serve an out-of-state subpoena on her, and get her to cooperate. Looking at the totality of the circumstances, the trial court concluded that the People had exercised reasonable diligence and found that the victim was legally unavailable. The trial court allowed the prosecution to introduce the victim's preliminary hearing testimony at trial.
B. The Trial Court Properly Found That the Victim Was Unavailable
"The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution's witnesses. [Citations.] That right is not absolute, however. An exception exists when a witness is unavailable and, at a previous court proceeding against the same defendant, has given testimony that was subject to cross-examination. Under federal constitutional law, such testimony is admissible if the prosecution shows it made 'a good-faith effort' to obtain the presence of the witness at trial. [Citations.] California allows introduction of the witness's prior recorded testimony if the prosecution has used 'reasonable diligence' (often referred to as due diligence) in its unsuccessful efforts to locate the missing witness. [Citation.]" (People v. Cromer (2001) 24 Cal.4th 889, 892 (Cromer); see also Evid. Code, § 240, subd. (a)(5).) The term "'due diligence'" "'connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.' [Citations.]" (Cromer, supra, 24 Cal.4th at p. 904.) "The proponent of the evidence has the burden of showing by competent evidence that the witness is unavailable. [Citation.]" (People v. Smith (2003) 30 Cal.4th 581, 609 (Smith).)
When the facts are undisputed, a reviewing court decides the question of due diligence independently. (Smith, supra, 30 Cal.4th at p. 610.) In this case, reviewing the record independently, we conclude the prosecution satisfied its burden of showing due diligence. After the victim moved to Florida, the district attorney's office kept in contact with her on a "'[p]retty regular'" basis. More than a month before trial, the victim was mailed a subpoena. The prosecution confirmed that she received it, and the victim agreed to testify at trial. Subsequently, Ms. Soto tried to maintain contact with the victim as usual, but the victim stopped returning her calls and text messages. In the weeks leading up to trial, Ms. Soto called the victim at least 30 times on the Hope Line, sent her at least five or six text messages, and left at least 10 messages for her on another line. Over the weekend right before trial, Ms. Soto called her on Friday evening every half hour until 9:30 p.m., then on Saturday every 20 minutes between 6:00 a.m. and 2:00 p.m.
In addition, Investigator Thompson started calling the victim, in an attempt to locate her, on November 4, 2009. He called her on the Hope Line 10 to 15 times that day, and he left a message with her friend on another contact line a few days later. Investigator Thompson also asked the local authorities in Florida to investigate the victim's listed addresses. On November 12, 2009, the victim returned Investigator Thompson's telephone call, and they discussed the victim coming back to California for the trial. He called her again the next day, but could not reach her. He attempted to contact the victim until the day of the trial. We find that the prosecution's multiple attempts to contact and locate the victim established reasonable diligence.
Defendant argues that the prosecution acted negligently in facilitating the victim's request to relocate, and that the prosecution unjustifiably relied on her promises to appear in court. He asserts that the trial court was therefore precluded from making a finding of unavailability, and that his convictions should be reversed. We disagree. Evidence Code section 240 specifies the conditions that qualify a witness as being unavailable. One such condition is when a declarant is "[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).) The statute further states that "[a] declarant is not unavailable as a witness if the . . . absence of the declarant was brought about by the procurement or wrongdoing of the proponent of his or her statement for the purpose of preventing the declarant from attending or testifying." (Evid. Code, § 240, subd. (b), italics added.) Nothing here precluded a finding of unavailability under Evidence Code section 240, subdivision (b), since there was no evidence that the victim's absence "was brought about by the [prosecution's] procurement or wrongdoing . . . for the purpose of preventing the declarant from attending or testifying." (Ibid., italics added.)
Defendant is correct that the district attorney's office aided in relocating the victim, at her request. However, the purpose was to prevent the victim from being contacted or harmed by defendant, since she was in fear of him. There was no indication that the prosecution relocated the victim in order to prevent her from attending the trial or from testifying. Rather, the prosecution's repeated efforts to contact and locate the victim, after she stopped returning calls, demonstrated that the prosecution wanted her to appear and testify.
Furthermore, the prosecution justifiably relied on her promises to return for trial. In early October, the victim told Ms. Soto she would come back for the trial. Defendant argues that the prosecution acted negligently in sending the victim away, since it knew she was afraid to appear in court. However, the victim said she was afraid to appear in court for the preliminary hearing; however, she did, in fact, appear and testify. Therefore, it was reasonable and justifiable for Ms. Soto to rely on the victim's promise that she would return to California for trial.
Defendant further contends that the prosecution failed to use due diligence since it began its efforts to secure the victim's attendance at trial too late. However, as discussed above, the prosecution's earnest efforts to secure her attendance at trial established reasonable diligence. The evidence showed that Ms. Soto confirmed the victim's appearance at trial, and then tried to maintain contact with her. Because it is not clear at what point Ms. Soto actually lost contact with the victim, it is difficult to say that the prosecution's efforts were "belated," as defendant argues.
Defendant also asserts that the prosecution failed to "'triangulate'" the victim's cell phone, failed to serve her at her workplace, and failed to use the procedures of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. (Uniform Act; Pen. Code, § 1334 et seq.) However, "the prosecution need not exhaust every potential avenue of investigation to satisfy its obligation to use due diligence to secure the witness." (People v. Gutierrez (1991) 232 Cal.App.3d 1624, 1641, overruled on other grounds as stated in Cromer, supra, 24 Cal.4th at p. 901.) It was only required to "use reasonable efforts to locate the witness." (People v. Cummings (1993) 4 Cal.4th 1233, 1298; see also People v. Lopez (1998) 64 Cal.App.4th 1122, 1128.)*fn3
Moreover, the prosecution was not required to use the Uniform Act. "Under the Uniform Act, as adopted in California, a party in a criminal case can ask a court in the state where an out-of-state material witness is located to subpoena the witness and also to have the witness taken into custody and brought to the prosecuting state to testify." (People v. Cogswell (2010) 48 Cal.4th 467, 471.) However, "[t]o have a material witness who has committed no crime taken into custody, for the sole purpose of ensuring the witness's appearance at a trial, is a measure so drastic that it should be used sparingly." (Id. at p. 477.) Furthermore, "unavailability of an out-of-state witness [can] be established by the prosecution without utilizing the [U]niform [A]ct when it was improbable the witness could be located, upon a proper showing of good faith efforts." (People v. Masters (1982) 134 Cal.App.3d 509, 523.) Here, the prosecution attempted to obtain an out-of-state subpoena, but could not do so because they did not have an accurate address for the victim. The prosecution repeatedly attempted to find the victim's correct address, and they even had Florida authorities try and locate her. The prosecution made good faith efforts, but it was improbable the victim could be located. (Ibid.) Thus, the prosecution was not required to show that they utilized the Uniform Act in order to establish her unavailability. (Ibid.)
We conclude that the prosecution used reasonable diligence in its efforts to locate the victim, and that the trial court properly allowed the prosecution to introduce the victim's testimony from the preliminary hearing. (Cromer, supra, 24 Cal.4th at p. 894.)
C. Defendant Had the Opportunity to Cross-examine the Victim At the Preliminary Hearing
Defendant further argues that the introduction of the victim's prior testimony was improper because his right to confrontation was violated in that he did not have a meaningful opportunity to cross-examine the victim at the preliminary hearing. He claims his ability to cross-examine the victim was limited since he lacked a police report, which he later received, regarding a prior abuse incident between him and the victim, where the officer declined to make an arrest because the victim was "an unreliable historian." Defendant claims that the information in that report would have allowed him to show the victim was an unreliable witness and to impeach her credibility. Defendant also asserts that "at the time of the preliminary hearing, [he] was unaware of [witnesses] who claimed to have witnessed the incident." Thus, he "was unable to explore, during cross-examination, discrepancies between their accounts and that of [the victim]."
It is settled that where "the witness is unavailable and the defendant at the preliminary hearing had the opportunity and similar interest and motive as at trial to cross-examine the witness, admission of the witness's former testimony does not violate the defendant's constitutional rights of confrontation and due process. [Citations.]" (People v. Malone (1988) 47 Cal.3d 1, 24.) Here, defense counsel was provided the opportunity to cross-examine the victim at the preliminary hearing. There is no suggestion that he did not have a "similar interest and motive as at trial" to cross-examine the victim. (Ibid.) Furthermore, "[b]oth the United States Supreme Court and this 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. [Citation.]' [Citations.]" (People v. Wilson (2005) 36 Cal.4th 309, 343.)
D. Any Error Was Harmless
In any event, even if the trial court erred in admitting the victim's preliminary hearing testimony, we conclude that any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Sandoval (2001) 87 Cal.App.4th 1425, 1444.) Even without the victim's preliminary hearing testimony, the jury would have found defendant guilty. Deputy Ibarra testified that when he arrived at the scene, the victim showed "signs of fear" of defendant, in that she was crying and would only speak to him away from defendant. Moreover, Deputy Ibarra testified, without objection from defendant, that the victim told him defendant assaulted her, and that he observed large red marks around the victim's entire neck. There was no bruising, so he estimated that the marks were fresh. Moreover, he took photographs of the red marks on the victim's neck, which were presented to the jury at trial. In addition, one witness testified that he saw defendant with his hands around the victim's neck. The witness also saw the victim gasping for air and trying to get away from defendant. Another witness testified that he heard a cry for help, and that he too saw "a guy . . . with his hands around [the victim's] neck," and the victim yelling, "'Let go of me.'" Finally, the jury heard a recording of a jail telephone call between defendant and the victim, during which they discussed the incident. The victim repeatedly referred to defendant putting his hands on her and hurting her. Defendant said, "I don't think any of this would have happened if we weren't drinking." He then apologized to the victim for the whole incident. In light of the evidence presented, defendant would have been convicted of inflicting injury on a spouse and misdemeanor assault, even if the victim's preliminary hearing testimony was not admitted. Thus, any error was harmless.
II. The Minute Order Should Be Corrected
Although not raised by the parties, we note that the minute order from the sentencing hearing on January 15, 2010, reflects that the court ran the sentence imposed on count 2 concurrent, while the reporter's transcript reflects that the court stayed the sentence under section 654. The court's oral pronouncement of sentence prevails over the minute order. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) We have the inherent power to correct clerical errors. (People v. Mitchell (2001) 26 Cal.4th 181, 185-187.)
The superior court clerk is directed to correct the sentencing minute order of January 15, 2010, to reflect that the trial court sentenced defendant to 30 days on count 2, but stayed the sentence under Penal Code section 654. In all other respect, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS