IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
July 27, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
BRANDON KEMM TURNER, DEFENDANT AND APPELLANT.
(Super. Ct. No. SF109924A)
The opinion of the court was delivered by: Hull,j.
P. v. Turner
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Brandon Kemm Turner of second degree robbery (Pen. Code, § 211) and of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)). In connection with the robbery offense, the jury found that defendant personally used a firearm (Pen. Code, § 12022.53, subd. (b)).
Sentenced to state prison for a term of 15 years, defendant appeals. He contends his right to confront and cross-examine the witnesses against him as guaranteed by the Sixth Amendment to the Constitution of the United States was violated when the court determined that a witness to the incident at issue was unavailable to testify. In lieu of the witness's live testimony, the court admitted into evidence the witness's testimony at the preliminary hearing. There was no error.
FACTS AND PROCEEDINGS
In light of the fact that defendant's assignment of error relates to the admissibility of the unavailable witness's preliminary hearing testimony, we may briefly summarize the facts underlying the offense.
At about 8:00 p.m. on October 3, 2008, the victim and his female friend left her home and walked to his car. As the victim reached the driver's door, defendant, holding a gun, approached him and threatened to kill the victim if the victim did not give defendant his money.
The victim grabbed the muzzle of the gun and struggled with defendant. The victim was hit on the head with something hard, possibly a gun, from behind by another man who told him to give up and hand over his money. The victim then ran and the two men ran after him. The victim ran about a half a block and either fell or was tripped. He landed in the street where he was punched and kicked by four men who demanded his money. The robbers took the victim's wallet which contained about $1,300 in cash, a check made out to the victim, and his cell phone. A passerby, Anthony S., yelled at the robbers as they were assaulting the victim in the street. Anthony S. identified defendant as one of the robbers.
At the preliminary hearing in this matter, Anthony S. identified defendant as one of the four men who physically assaulted and robbed the victim in the street.
At trial, the court declared Anthony S. to be an unavailable witness after the prosecution disclosed that Anthony S. was in Ohio for the funeral and other arrangements for his deceased brother. Anthony S.'s testimony at the preliminary hearing was read to the jury. Defendant contends that the prosecutor failed to demonstrate due diligence and that his right to confront and cross-examine Anthony S. was violated by the court's declaration of Anthony S.'s unavailability.
We consider the following facts.
On December 19, 2008, jury trial was scheduled for January 30, 2009.
In his motion in limine filed January 29, 2009, the prosecutor listed two police officers, the victim, the victim's female friend, and Anthony S., as his witnesses.
On Friday, January 30, 2009, the first day of trial, the court heard the parties' in limine motions.
On Monday, February 2, 2009, a jury was selected. The court recessed until Wednesday, February 4.
On Wednesday, February 4, 2009, the court reconvened, noting that it had "talked briefly this morning with both counsel" and that there had "been a development" with regard to Anthony S.
The prosecutor thereafter questioned the detective in charge of the investigation, Raquel Betti, as to her efforts to assist the prosecutor in producing Anthony S. at trial. Detective Betti stated that on January 30, the prosecutor had advised her that there had been a death in Anthony S.'s family and that Anthony S. was out of state. Detective Betti stated that she had been asked by the prosecutor to talk to Anthony S. "to see if there was any way that we could bring him back, fly him [back] for a day." Detective Betti called Anthony S. that afternoon using his cell phone number. Anthony S. did not answer and she left a message. At 3:00 p.m., Anthony S. returned the call. Detective Betti explained to Anthony S. that "we needed him and was there a possibility that we could fly him back and forth, and he said that he didn't know where things stood, that he was still out of state and that they were working out the details of his family member's death." Anthony S. said that he did not know what he would be doing "next week, everything was kind of--so [the detective] told him [that] the DA will have somebody call you maybe next week and see if there's a possibility and maybe you might know more by then." Anthony S. confirmed that he was still out of state.
Under defense counsel's questioning, Detective Betti stated that she did not ask Anthony S. for an Ohio phone number or address in Ohio, or for either a hotel, a house, a funeral home, a hospital, or any other place Anthony S. was staying. Anthony S. did not mention to Detective Betti that he would be attending a class.
The prosecutor then questioned Evelyn Rodacker, the district attorney's witness coordinator. On February 2, she called Anthony S.'s cell phone number which had a 209 area code. Some unidentified person answered and said there had been a death in the family. Rodacker asked for Anthony S. and was told that he was "in a class." Rodacker asked if Anthony S. was still in Ohio and the unidentified speaker answered affirmatively. Rodacker asked that the person give a message to Anthony S. that she wanted to fly Anthony S. "in today and fly him right back if he would make that arrangement with [her]." The unidentified speaker indicated that Anthony S. would return Rodacker's call "around two or three o'clock Ohio time." Rodacker never received a call back from Anthony S. or anyone else. Rodacker then called Anthony S.'s cell phone number "numerous" times and left voicemail messages but received no answer.
Pursuant to questioning by defendant's attorney, Rodacker stated that the unidentified speaker did not identify "the class" referred to earlier, that Rodacker believed it "was more like some type of financial thing, like trying to cover some kind of finances," and that the speaker said Anthony S. was "in a class, trying to understand" and "taking care of stuff for the person that died." Rodacker did not obtain an Ohio phone number or address for either Anthony S., the funeral home, or anything else.
The prosecutor stated to the court that he had a report from Dale Wagner, a district attorney investigator, who spoke with Anthony S. on January 28, 2009. Anthony S. told the investigator that he was "in Lancaster, Ohio," attending his brother's funeral and "taking care of a family obligation and [would] probably be there until the early part of March."
Questioned by defendant's counsel, the prosecutor stated that the report did not reflect a phone number or address for anyplace in Lancaster, Ohio. The prosecutor stated that Anthony S. had a cell phone, and that Anthony S. had "been in contact with us since the entire time this case started, Judge. He's still picking up. It's not like he's not picking up the phone."
The prosecutor suggested there were two options, that is, to "waive time and wait until March or proceed with the case," noting that Anthony S. had been thoroughly cross-examined at the preliminary hearing. Defense counsel told the court that defendant was willing to waive time until March if the trial court released him from custody. The trial court said that it was not inclined to release defendant. After confirming that both the prosecutor and defense counsel wanted Anthony S.'s testimony, the trial court stated:
"[W]e're not going to get him here, and in the interest of pursuing the case, keeping it moving and for your interest of -- and the interest--we got a jury picked and all of the witnesses scheduled. They're all present. I'm inclined to have counsel have Mr. [S.]'s testimony read.
"I'll find he's unavailable. We've taken testimony. We've got a written statement from the other investigator. It would appear clear to me that Mr. [S.] is a witness in the case. We could debate if he's as material as everybody else. He has some important issues. We're going to do that through the transcript. And given the weight of the evidence here, I'll find for our purposes he's unavailable as a witness. He's in the middle of the country. He's beyond the reach of our process at this time. He's not going to get back in a reasonable time. March is not a reasonable time. We told these people three or four days on the trial, and I don't want to have them--this is obvious to everybody, we'll hear the prosecution's case and the defense case, and then come back in a month and hear from Mr. [S.]. Nobody is going to have any memory in a month. That would be a gross misjudgment. So we'll just agree that we're going to--I'm finding that Mr. [S.] is unavailable and we'll agree we'll read the transcript."
After the court and counsel discussed who would read the questions and answers, the jury returned to the courtroom and the court instructed the jury that the preliminary hearing testimony of Anthony S. would be read to them. Defense counsel did not object to or otherwise comment on the court's finding of Anthony S.'s unavailability.
"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. I, § 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 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."'" [Citation.]' [Citation.] [¶] Although important, the constitutional right of confrontation is not absolute. [Citations.] '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.]' [Citation.] Pursuant to this exception, the preliminary hearing testimony of an unavailable witness may be admitted at trial without violating a defendant's confrontation right. [Citation.] [¶] This traditional exception is codified in the California Evidence Code. [Citation.] [Evidence Code] [s]section 1291, subdivision (a)(2), provides that 'former testimony,' such as preliminary hearing testimony, is not made inadmissible by the hearsay rule if 'the declarant is unavailable as a witness,' and '[t]he 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.' Thus, when the requirements of section 1291 are met, the admission of former testimony in evidence does not violate a defendant's constitutional right of confrontation. [Citation.]" (People v. Herrera (2010) 49 Cal.4th 613, 620-621, fns. omitted (Herrera).)
"A witness who is absent from a trial is not 'unavailable' in the constitutional sense unless the prosecution has made a 'good faith effort' to obtain the witness's presence at the trial. [Citation.] The United States Supreme Court has described the good faith requirement this way: 'The law does not require the doing of a futile act. Thus, if no possibility of procuring the witness exists (as, for example, the witness' intervening death), "good faith" demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. "The lengths to which the prosecution must go to produce a witness . . . is a question of reasonableness. [Citation.] The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness.' [Citations.]
"Our Evidence Code features a similar requirement for establishing a witness's unavailability. Under [Evidence Code] section 240, subdivision (a)(5) (section 240(a)(5)), a witness is unavailable when he or she 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.' (Italics added.) The term '[r]easonable diligence, often called "due diligence" in case law, "'connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.'"' [Citation.] Considerations relevant to the due diligence inquiry 'include the timeliness of the search, the importance of the proffered testimony, and whether leads of the witness's possible location were competently explored.' [Citations.] In this regard, 'California law and federal constitutional requirements are the same . . . .' [Citation.]" (Herrera, supra, 49 Cal.4th at p. 622.) Considerations relevant to due diligence include "'not only the character of the proponent's affirmative efforts but such matters as whether [the proponent] reasonably believed prior to trial that the witness would appear willingly and therefore did not subpoena him when he was available [citation], whether the search was timely begun, and whether the witness would have been produced if reasonable diligence had been exercised [citation].' [Citation]." (People v. Sanders (1995) 11 Cal.4th 475, 523, italics added (Sanders).)
Evidence Code section 240, subdivision (a)(4) (hereafter section 240(a)(4)) provides that a witness is unavailable when he or she is "[a]bsent from the hearing and the court is unable to compel his or her attendance by its process." Section 240(a)(4) "makes no mention of a 'reasonable diligence' requirement, thus indicating the Legislature's intent to dispense with such a showing in those cases where the court has no power to compel the witness's attendance." (Herrera, supra, 49 Cal.4th at pp. 622-623.)
"[T]o establish unavailability, the prosecution must show that its efforts to locate and produce a witness for trial were reasonable under the circumstances presented. [Citations.] 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; see also People v. Sandoval (2001) 87 Cal.App.4th 1425, 1432 [independent review standard applied to efforts to produce witness at trial].)
Defendant contends that the trial court erroneously admitted Anthony S.'s preliminary hearing testimony in that the prosecutor failed to demonstrate due diligence and that his (defendant's) right to confront and cross-examine Anthony S. was violated by the court's declaration of Anthony S.'s unavailability.
Initially, we consider the People's claim that defendant's contentions have been forfeited by defendant's failure to object in the trial court. In support of their argument, the People cite People v. Hinton (2006) 37 Cal.4th 839, 893 and footnote 19 [hearsay and Evidence Code section 352 objections forfeited]; People v. Waidla (2000) 22 Cal.4th 690, 717 [hearsay objection forfeited]; and People v. Alvarez (1996) 14 Cal.4th 155, 185-187 [the defendant's inadmissible hearsay objection to statements overruled since spontaneous declaration exception applied; the defendant's confrontation clause claim on appeal was deemed forfeited as not raised below and in any event, the court found no violation of confrontation clause where firmly-rooted hearsay exception applied].
These cases are of no particular help to the People, because each dealt with hearsay objections and in each, the court relied on and restated the rather pedestrian rule that objections to the admissibility of evidence are forfeited unless there is a specific and timely objection in the trial court. We deal here instead with a claim that the prosecution did not show due diligence in attempting to have Anthony S. available for trial and whether the trial court properly determined that he was unavailable. While perhaps defense counsel did not specifically state that the proceedings violated the confrontation clause, the whole purpose of the evidentiary hearing regarding Anthony S.'s availability was to determine whether the confrontation clause required Anthony S.'s appearance. The issue was sufficiently raised.
The People also cite Sanders, supra, 11 Cal.4th 475. In Sanders, at trial, the defendant sought to admit a witness's suppression hearing testimony. The defendant failed to demonstrate due diligence and the witness's unavailability. (Id. at pp. 522-525.) There, the court noted that the prosecution had no interest or motive to cross-examine the witness at the suppression hearing, because the only issue was exigent circumstances whereas at trial, the prosecution had a strong motive to impeach the witness. (Id. at pp. 525-526.)
The People rely on a footnote in Sanders to the effect that the defendant's claim that the exclusion of the witness's suppression hearing testimony violated his state and federal confrontation rights, for the first time on appeal, was forfeited and, in any event, rejected because there was no error in excluding the testimony. (Sanders, supra, 11 Cal.4th at p. 526, fn. 17.) We note that after Sanders, the Supreme Court decided People v. Partida (2005) 37 Cal.4th 428 where the court held that a defendant may argue for the first time on appeal that an asserted error in an evidentiary ruling had the additional legal consequence of being a constitutional due process violation (id. at pp. 433-439), reasoning that "'no useful purpose is served by declining to consider on appeal a claim that merely restates, under alternative legal principles, a claim otherwise identical to one that was properly preserved by a timely motion that called upon the trial court to consider the same facts and to apply a legal standard similar to that which would also determine the claim raised on appeal.' [Citations.]" (Id. at p. 436.) The same analysis would seem to extend to defendant's confrontation clause claim, especially here, since, again, that is the reason for the evidentiary hearing held in the trial court.
The People also cite People v. Thompson (1998) 61 Cal.App.4th 1269 (Thompson). In Thompson, a witness planned to be on vacation out of state at the time of trial. The prosecutor sought a conditional examination and defense counsel objected to the procedure, requesting court findings on unavailability and due diligence. Penal Code section 1345 provides that a deposition may be read in evidence at trial if the court finds the witness is unavailable within the meaning of Evidence Code section 240. The court permitted the conditional examination and made no findings on unavailability/due diligence. At the conditional examination, defense counsel cross-examined the witness. At trial, over defense counsel's objection based on the lack of a finding of unavailability, the witness's conditional examination testimony was read. (Thompson, at pp. 1277-1278 & fn. 10.) Thompson found no error in admitting the witness's conditional examination testimony at trial, concluding that the witness's plan to be absent from the state was pragmatically the same as being unavailable. (Id. at p. 1280.)
Here, the People again rely on and cite a footnote from Thompson. In the footnote, citing Sanders, Thompson stated that the defendant's argument for the first time on appeal that the conditional examination deprived him of his confrontation right was "waived." (Thompson, supra, 61 Cal.App.4th at p. 1280, fn. 11.) Thompson is of no assistance to the People because we deem defendant's argument here to have been sufficiently raised in the trial court.
Defendant's contention that the trial court erroneously admitted Anthony S.'s preliminary hearing testimony in that the prosecutor failed to demonstrate due diligence and that his (defendant's) right to confront and cross-examine Anthony S. was violated by the court's declaration of Anthony S.'s unavailability was not forfeited.
On the merits, the trial court here appears to have relied upon section 240(a)(4) [witness absent and court unable to compel attendance by its process] in finding Anthony S. unavailable. But "unavailability in the constitutional sense nonetheless requires a determination that the prosecution satisfied its obligation of good faith in attempting to obtain [Anthony S.'s] presence." (Herrera, supra, 49 Cal.4th at p. 623.) The undisputed facts reflect that Anthony S. was in Ohio attending his brother's funeral and handling matters related to the death and that the prosecutor had made efforts to produce Anthony S. at trial by offering to fly him to California to testify and back to Ohio. The issue is whether the prosecutor made a good faith effort to produce Anthony S. at trial.
Defendant complains that there was no independent or corroborating evidence that Anthony S. was actually out of state, "really in Ohio." We reject this argument. The prosecution did not have to prove that Anthony S. was actually in Ohio; the prosecution "only had to prove that it had exercised reasonable or due diligence . . . or . . . had made a good faith effort to obtain the witness's presence at trial." (People v. Smith (2003) 30 Cal.4th 581, 610.)
The prosecutor represented to the court that Anthony S. had kept in contact with the officers from the beginning. When officers arrived at the place of the October 3, 2008 robbery, Anthony S. gave the officers his identification and his statement of what he saw. A few weeks later, the detective in charge of the investigation contacted Anthony S. and he "met up with her." The detective went to Anthony S.'s home and showed Anthony S. a photo lineup. Anthony S. testified at the preliminary hearing on November 6, 2008.
The district attorney investigator reported on January 28, 2009, that Anthony S. went to Lancaster, Ohio to attend his brother's funeral. The prosecutor noted that Anthony S. had been answering his cell phone. On January 30, 2009, the prosecutor had the detective in charge of the investigation contact Anthony S. and inquire whether he was still in Ohio. The detective spoke with Anthony S., learned that Anthony S. was still in Ohio, and advised that someone from the district attorney's office would contact Anthony S. to make arrangements for him to return to California to testify. When the witness coordinator attempted to contact Anthony S. to do just that, someone else answered the phone and advised that Anthony S. was still in Ohio and was learning about financial matters related to his brother's death. The person told the coordinator that Anthony S. would return the call in the afternoon. This was on Monday, February 2, the date the jury had been selected. Anthony S. did not return the call. Thereafter, the witness coordinator's numerous calls and voice mail messages went unanswered. Trial was set to reconvene on Wednesday, February 4. On February 4, the prosecutor notified the court and defense counsel what had transpired as far as producing Anthony S. at trial.
"[T]he timing and competence of the prosecution's efforts to locate the absent witness within the jurisdiction are important factors in measuring good faith and due diligence [citation]." (Herrera, supra, 49 Cal.4th at p. 630.) While "[w]aiting until the morning a trial begins to try to locate a witness after being out of touch for several months is generally not prudent or reasonable, and certainly is not an untiring effort to secure a witness's presence at trial" (People v. Avila (2005) 131 Cal.App.4th 163, 169), "'[t]he prosecution is not required "to keep 'periodic tabs' on every material witness in a criminal case" [and] is not required, absent knowledge of a "substantial risk that this important witness would flee," to "take adequate preventative measure" to stop the witness from disappearing. [Citation.]' [Citation.]" (People v. Martinez (2007) 154 Cal.App.4th 314, 328; see also People v. Diaz (2002) 95 Cal.App.4th 695, 706; People v. Benjamin (1970) 3 Cal.App.3d 687, 696, disapproved on another point in People v. Brigham (1979) 25 Cal.3d 283, 292, fns. 14, 15.)
Here, Anthony S. was a cooperative witness. The prosecutor represented that Anthony S. had been keeping in contact with the district attorney's office from the very beginning of the case. The prosecutor knew the whereabouts of Anthony S., in Ohio. The prosecutor's investigator and detective spoke with Anthony S. who was in Ohio. Anthony S.'s cooperation is an important fact to consider in evaluating the prosecution's due diligence. (People v. Benjamin, supra, 3 Cal.App.3d at p. 697.) The prosecutor could reasonably believe that Anthony S. would appear willingly and there was no need to subpoena him and, once Anthony S. left the area, the prosecutor could properly assume that Anthony S. would return from Ohio, testify at trial, and fly back to Ohio to finish matters related to his brother's death. By the time the People discovered that it was apparently not Anthony S.' intention to return, trial had already begun.
While more might have been done, under the circumstances, the prosecutor's efforts were reasonable. We conclude that the trial court properly found Anthony S. was unavailable as a witness and find no error in admitting his preliminary hearing testimony.
The judgment is affirmed.
BLEASE, Acting P. J. MAURO, J.
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