(Super. Ct. No. SF109924A)
The opinion of the court was delivered by: Hull,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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 ...