APPEAL from a judgment of the Superior Court of Los Angeles County, Richard R. Romero, Judge. (Los Angeles County Super. Ct. No. NA084316)
The opinion of the court was delivered by: Suzukawa, J.
CERTIFIED FOR PUBLICATION
Defendant Christopher P. Wilson appeals from the judgment entered following his conviction by jury of second degree robbery, false imprisonment by violence, and assault with a semiautomatic firearm, with findings that a principal was armed with a firearm, defendant used a firearm, and he committed the crimes with the intent to promote criminal conduct by gang members. (Pen. Code, §§ 211, 236, 245, subd. (b), 12022, subd. (a)(1), 186.22, subd. (b)(1)(C).) Defendant was sentenced to 22 years in prison. He contends the trial court erred by allowing the prosecution to introduce the victim's preliminary hearing testimony and photographs from defendant's cell phone and denying his motion for new trial.*fn1 We conclude defendant was denied a fair trial and reverse.*fn2
FACTUAL AND PROCEDURAL BACKGROUND
For reasons that will be set forth in detail below, the victim, Lewis Peoples, Jr., did not testify at trial. The prosecution was allowed to use his preliminary hearing testimony.
Lewis Peoples, Jr., ran an internet-based radio station from his home in Wilmington. He became acquainted with defendant and arranged for him to be interviewed on his station.
At approximately 5:30 p.m. on October 28, 2009, defendant arrived at Peoples's residence in a vehicle with three others. Defendant asked where a gas station was. Peoples told his mother that he was going to direct defendant to a nearby station. The party of five got into the car, with defendant in the front passenger seat and Peoples in the rear passenger seat behind defendant. The group went to a station and gas was put in the car.
The car left the station and did not immediately return to Peoples's home. Peoples protested, claiming that he had to go home to baby-sit. The others said they were going to take him somewhere. Eventually, they arrived in Long Beach. Defendant asked Peoples what he had in his pockets. Peoples replied it was none of his business. Defendant said, "You think I'm playing around?" Defendant produced a handgun and pointed it at Peoples. The driver asked, "Oh, are we pulling out guns?" and he also brought out a gun. Peoples gave defendant his cell phone and $2.
The car was driven to another location in Long Beach where defendant tried to sell a Gucci bag. There, defendant talked to some individuals, who he referred to as his "Goons." Later, the group stopped in a store parking lot. Defendant told the driver to let Peoples out of the car. Peoples went into the store, asked to use the phone to call the police, and was refused by a clerk. Peoples walked to his grandfather's store where he called 911.
That night, defendant called Peoples and claimed he also had been robbed. Peoples responded, "That's B.S." He had no further contact with defendant.
Peoples said he did not want to testify, but felt compelled because he had been subpoenaed.
King Patterson is Peoples's grandfather. At about 6:15 p.m. on October 28, Peoples arrived at Patterson's place of employment and asked to use Patterson's phone. Peoples called his mother and Patterson heard him say that he had been taken from Wilmington to Long Beach and robbed. Peoples appeared cold and scared. Patterson called the police. A tape of the 911 call was played for the jury.
Christie Patterson is Peoples's mother. In court, she was unable to say whether she saw someone present who was at her residence on October 28. She admitted that she was shown a photographic lineup by a detective and selected a picture of a person. On the statement form she wrote, "No. 4 is the guy that came to my house to do a[n] interview with my ...