P. v. De La Cruz

Filed 6/30/08 P. v. De La Cruz CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County, Shari K. Silver, Judge. Affirmed.

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *

Martin de la Cruz appeals from the judgment following his convictions for first degree robbery. Appellant appeals on the ground the trial court prejudicially erred by admitting a victims preliminary hearing testimony into evidence. Because we find the prosecution exercised due diligence to secure the witnesss presence, we affirm.

FACTS AND PROCEDURAL HISTORY

Rudy Rosario owned and lived at a home on Poole Avenue in Sun Valley. About 8:00 p.m. on March 20, 2006, Rosario was at home with his friends Luis Francisco Gonzalez, who rented a room from him, and Julio Santana. They were joined by two female friends of Rosario. Shortly after the women arrived, there was a knock at the door. Rosario went to the door, and two armed men came into the house. One man, later identified as codefendant Francisco Moreno, came in with a chromed handgun. Moreno had tattoos on his chest and a shaved head; he was wearing a tank top and a sweatshirt. The second man, later identified as appellant, followed and, while holding a small black handgun, told everyone to take out their wallets and everything [they] had. While appellant remained in the living room with the gun pointed at the occupants, Moreno went into the bedroom and started searching through the furniture. He emerged carrying a DVD player, movies and other items. Either Moreno or appellant took wallets and cell phones from the three men. Appellant and Moreno removed the batteries from the land line telephones and left with the two women. Before fleeing the scene, appellant told everyone, Dont move, or Im going to . . . shoot you. Gonzalez and his friends were afraid to call the police and decided to forget about this.

Early the following morning, based on information received, Los Angeles Police Department Officers Ruth Miramontes and Anthony Washington stopped at the Economy Inn motel in Sun Valley. The two officers checked information provided on motel registration cards with the Department of Motor Vehicles (DMV). One of the numbers, registered to room 203, came back as invalid. The officers went to room 203 to speak to its occupants. Officer Washington knocked on the door and announced they were police officers. Moreno opened the door and Officer Washington saw two females inside the room. All three occupants were asked to step out of the room. When asked if there was anyone else in the room, Moreno and his female companions answered no. Shortly afterwards, Officer Washington saw appellant pop up from the far side of the bed. All four occupants were detained and handcuffed after Officer Washington saw a handgun inside the room.

A search of appellants black Lincoln Navigator revealed a loaded revolver, a black bandana, baseball gloves, a black leather glove, three rounds of ammunition and appellants California identification card that was used to register for the motel room. The room was also searched and several items were recovered, including a handgun, an empty ammunition clip, a DVD player, two cell phones, money, a laptop computer, a check book in Rosarios name, credit cards, a health insurance card, store cards, a laser pointer and various pieces of paper.

On the same morning, Rosario received a telephone call from one of the women present during the robbery. She told Rosario that the police had the two perpetrators in custody and he should come to the Economy Inn to identify his property. Rosario and Gonzalez went to the motel and identified Moreno as one of the robbers. By that time, appellant had already been transported to the police station. Rosario identified some of the items recovered by the officers as items taken in the robbery, including his DVD player, cell phone, wallet, credit card and check book. He also identified the two guns the officers recovered as the ones used by appellant and Moreno during the robbery.

Appellant was taken to the police station and interviewed concerning the robbery. He waived his Miranda rights^[1]and denied knowing anything about a robbery.

Officer John Franco, the officer assigned to investigate the robbery, sent the recovered handguns to the scientific investigation unit for fingerprint analysis but no prints were found on them.

The district attorney filed an information charging appellant with three counts of first degree robbery alleging he personally used a firearm and had served a prior prison term.

At trial, appellant testified that he spent most of the day of the alleged incident in the Sun Valley area, driving to different junk yards looking for parts for his motorcycle. About 7:00 p.m., he went to the Emerson Inn, located on Sheldon and San Fernando Road, in response to a call from his friend, Theresa Castro. Appellant had been helping Castro pay for a room at the motel, and Castro told him she needed some money to continue the rental. At the motel, Castro introduced appellant to Moreno. Castro then stated she was hungry and wanted something to eat. Appellant was tired and did not want to drive anywhere, so he lent his Lincoln Navigator to Moreno to get some food. Moreno returned about 45 minutes later. He gave the car keys to appellant, and left. Appellant remained in the room with Theresa for 30 minutes, and then he left also. In the parking lot, Moreno approached appellant asking for a ride to somewhere close by. Appellant gave his keys to Moreno. Moreno drove both of them to the Economy Inn, about a three minute drive from the Emerson Inn.

According to appellant, when he and Moreno arrived at the Economy Inn, Moreno introduced appellant to two women, Lisa Banuelos and Shaina Murphy. Appellant already knew Banuelos, as she lived near appellants sister, and he had met Murphy a couple of times before. After they talked in the parking lot for some time, appellant registered for a room using his California identification card. Of the four, he was the only one with identification, and he contributed $30 because the others did not have enough money. The four of them went to the room where appellant went to sleep on the floor near the bed after placing his car keys on the table. The next thing appellant knew, it was the following morning and the police were at the room. Appellant denied having anything to do with the guns or the robbery and testified he did not know that any robbery had occurred.

Rosario testified at trial that he had identified appellant at the preliminary hearing as the second robber and, having observed appellant in court during trial, he had become more certain appellant was one of the perpetrators.^[2] Gonzalez was declared unavailable as a witness at the trial. His testimony at the preliminary hearing was read to the jury. Gonzalez identified appellant as the second robber at the preliminary hearing.

A jury found appellant guilty on all counts and found true the allegation that he had personally and intentionally used a firearm during the commission of the offenses. Appellant admitted that he had previously served a prison term. The court denied appellant probation and sentenced him to state prison for a total of 24 years four months.

Appellant timely appealed from the judgment.

DISCUSSION

Appellant contends his conviction must be reversed because the trial court committed prejudicial error in admitting victim Gonzalezs preliminary hearing testimony in violation of appellants Sixth Amendment rights. He argues the evidence was inadmissible because the prosecution failed to demonstrate due diligence in securing the witnesss presence at trial. Respondent argues the prosecution made reasonable efforts to secure the attendance of the witness at trial. Respondent further argues appellant failed to raise an objection at trial and, in any event, error in the admission of the evidence was harmless because Rosario also identified appellant and evidence of his guilt was overwhelming. We find no abuse of discretion in the trial courts admission of this evidence.

Immediately before trial, the prosecutor informed the court that one of the prosecutions witnesses, Gonzalez, who had testified at the preliminary hearing on June 30, 2006, could not be located for the trial. The prosecution asked the courts permission to read Gonzalezs preliminary hearing testimony to the jury. The court held an evidentiary hearing on the prosecutions efforts to locate Gonzalez.

Yaneysi Estevez, an investigator with the Los Angeles County District Attorneys office, testified on the efforts the prosecution made to locate Gonzalez. The district attorneys work log indicated investigator Doug Davis received the subpoena for Gonzalez on January 2, 2007. Attached to the subpoena was a copy of the police report containing Gonzalezs date of birth. Davis ran a check with the DMV and received no match. He went out to the location of the incident, but no one answered at the door. Davis spoke with some neighborhood children; they told him a new family had moved in a month or two previously. Davis also checked the Los Angeles County Sheriffs website to see if Gonzalez was in custody, but he received no match.

Estevez stated she personally contacted victim Rosario on January 5, 2007. Rosario told her that Gonzalez had rented a room from him but left when Rosario sold his home. Rosario believed that Gonzalez had left the country. He had no knowledge of where Gonzalez might be. Between January 10 and 11, 2007, Estevez checked Gonzalezs name through the criminal history reporting system, RAPS, wanted persons list, JDIC (Justice Data Interface Controller System) and the DMV. She also checked with the probation department, Los Angeles County-USC Medical Center, coroners office, Los Angeles Mission and Midnight Mission, but the searches were either negative or inconclusive because Gonzalez was a common name. She did an address warrant check, but that came back negative. Estevez returned to the crime address, and there was no answer at the door. She spoke to an adult neighbor who said he did not know Gonzalez.

Although cell phones taken during the robbery were recovered and returned to their owners, it was stipulated that Gonzalezs cell phone was not one of the cell phones booked into evidence.

After hearing the evidence, the court declared Gonzalez to be unavailable and allowed the district attorney to enter Gonzalezs preliminary hearing testimony into evidence at trial. The court indicated it found clear and convincing evidence of the investigators reasonable and due diligence.

Although a criminal defendant has a state and federal constitutional right to confront witnesses, this right is not absolute. (People v. Wilson (2005) 36 Cal.4th 309, 340.) The United States Supreme Court has stated that [t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine. (Crawford v. Washington (2004) 541 U.S. 36, 59.) This longstanding exception is codified in Evidence Code section 1291. (People v. Alcala (1992) 4 Cal.4th 742, 784-785.) Our Supreme Court has held that admitting former testimony in evidence does not violate a defendants confrontation right under the federal and state Constitutions when the requirements of section 1291 are met. (People v. Alcala, at pp. 784-785; People v. Carter (2005) 36 Cal.4th 1114, 1173-1174.)

Evidence Code section 1291, subdivision (a)(2) provides that former testimony is not made inadmissible as hearsay 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. Evidence Code section 240, subdivision (a)(5) provides that a declarant is unavailable as a witness if the 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 courts process.

Gonzalezs former testimony was offered against appellant, who was a party to the preliminary hearing. Appellants interest and motive in examining Gonzalez during the preliminary hearing therefore was similar, if not identical, to that in the trial. (See People v. Carter, supra, 36 Cal.4th at p. 1173.) However, appellant asserts that the prosecution failed to adequately establish that Gonzalez was unavailable as a witness.

The proponent of the evidence has the burden of establishing unavailability by competent evidence. (People v. Cummings (1993) 4 Cal.4th 1233, 1296.) When, as here, the facts are undisputed, the appellate court conducts an independent, de novo, review of the evidence to determine whether the proponent has met this burden. (Ibid.; People v. Smith (2003) 30 Cal.4th 581, 610; People v. Cromer (2001) 24 Cal.4th 889, 901.) To prove the witness is unavailable, the prosecution need only show it exercised reasonable or due diligence or made a good faith effort (i.e., due diligence) to obtain the witnesss presence at trial. (People v. Smith, supra, 30 Cal.4th at p. 610.) Although due diligence is incapable of a mechanical definition, it connotes efforts of a substantial character. In assessing whether due diligence has been exercised, the totality of the proponents efforts must be considered. (People v. Sanders (1995) 11 Cal.4th 475, 523.)

Here, the prosecution exercised due diligence to procure Gonzalezs attendance at trial. The prosecutor issued the subpoena for Gonzalez two weeks in advance of the trial date, a reasonable amount of time to serve a witness who had willingly appeared and testified during the preliminary hearing. Two different investigators personally went to Gonzalezs last known address on three separate occasions. They spoke with neighborhood children and an adult regarding the whereabouts of Gonzalez. One of the investigators interviewed Gonzalezs former landlord Rosario regarding potential leads on locating Gonzalez. Gonzalezs information was checked in at least six different state and local law enforcement and government databases, including twice in the DMV records, with negative results. Investigator Estevez also contacted the probation department, the coroners office, county hospital and downtown missions, with unsuccessful results. Viewing the totality of the efforts made to locate Gonzalez, we conclude the prosecution exercised due diligence in attempting to secure his presence at trial. (People v. Wilson, supra, 36 Cal.4th at p. 342; People v. Sanders, supra, 11 Cal.4th at p. 523.)

Appellant argues the prosecution should have made more vigorous efforts to reach Gonzalez, including calling his cell phone. However, it was stipulated no cell phone belonging to Gonzalez was booked into evidence. The prosecution thus did not have Gonzalezs cell phone number available to it. In any case, [t]hat additional efforts might have been made or other lines of inquiry pursued does not affect the conclusion that the prosecution exercised due diligence. (People v. Cummings, supra, 4 Cal.4th at p. 1298.) It is sufficient that the prosecution used reasonable efforts to locate the witness. (Ibid.) We so find here.

This case is unlike People v. Avila (2005) 131 Cal.App.4th 163 in which the defendants first trial ended in a mistrial. In the retrial, the trial court allowed the prosecutor to use a supposedly unavailable witnesss testimony from the prior trial. A detective testified he had waited until the morning of trial to attempt to serve the witness because he feared she would flee if given time to ponder the implications of testifying in a gang-related case. (Id. at p. 169.) The detective also contradictorily claimed he had not anticipated the witnesss moving from her apartment and had been confident of his ability to locate her on the shortest possible notice. (Id. at pp. 169-170.) We concluded the trial court erred in finding the prosecution exercised due diligence in trying to secure the witnesss appearance at the retrial and therefore erred in admitting her testimony from the prior trial. (Id. at p. 170.) We explained that [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 witnesss presence at trial. (Id. at p. 169.)

Here, the prosecutions effort started a reasonable period before the day of trial, two weeks earlier. (People v. Linder (1971) 5 Cal.3d 342, 345 [effort to subpoena began one day before trial]; People v. Smith (1971) 22 Cal.App.3d 25, 31-32 [subpoena issued one week before trial]; People v. Rodriguez (1971) 18 Cal.App.3d 793, 796-797 [prosecution attempted to serve subpoena on witness for six days before trial]; People v. Benjamin (1970) 3 Cal.App.3d 687 [attempts to locate witness started four days before trial], disapproved on other grounds by People v. Brigham (1979) 25 Cal.3d 283, 292, fn. 14.) This case did not have gang implications, and there was no reason to believe Gonzalez was reluctant to testify or had reason to fear testifying. He had testified without hesitation at the preliminary hearing. The prosecution had no reason to believe that Gonzalez would leave the jurisdiction after the preliminary hearing or would be unavailable at trial. The investigators made reasonable efforts to locate the witness once made aware he had moved from his prior address. In People v.Avila, the prosecution appeared to have made a tactical decision to gamble on being able to locate their witness at the last minute. Here, there is no indication the investigators inability to locate the witness was the result of such last-minute risk taking. It is not necessary for the prosecution to keep periodic tabs on every material witness in a criminal case . . . . (People v. Hovey (1988) 44 Cal.3d 543, 564; see also People v. Wilson, supra, 36 Cal.4th at p. 340.) Absent knowledge of a substantial risk a vital witness would flee, the prosecution need not take adequate preventive measures to stop such a witness from disappearing. (People v. Wilson, at p. 340.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

RUBIN, J.

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^[1]Miranda v. Arizona (1966) 384 U.S. 436.

^[2] Rosario testified both at the preliminary hearing and at trial that he had no doubt appellant was one of the men who robbed Rosario that night.