P. v .Joice

Filed 10/10/07 P. v .Joice CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Ronald V. Skyers, Judge. Affirmed with modifications.

Matthew D. Alger, 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, Senior Assistant Attorney General, Steven D. Matthews, Shawn McGahey Webb and Richard Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Bufford Joice was convicted, following a jury trial, of one count of felony evading a peace officer in violation of Vehicle Code section 2800.2,

subdivision (a), two counts of misdemeanor resisting arrest in violation of Penal Code section 69 and one count of misdemeanor hit and run driving in violation of Vehicle Code section 20002, subdivision (a). The court suspended imposition of sentence and placed appellant on probation for a period of three years, with the first year to be served in county jail. The court imposed and stayed a parole revocation fine of $200.

Appellant appeals from the judgment of conviction, contending the trial court erred in finding a witness was unavailable and permitting a videotape of that witness's testimony to be shown to the jury. He further contends the court erred in imposing a parole revocation fine. We order the fine stricken and affirm the judgment of conviction in all other respects.

Facts

On the evening of January 24, 2006, Los Angeles County Sheriff's Deputy Roland Burk was on patrol when he saw appellant driving a sport utility vehicle ("SUV") that had no license plates. The deputy turned on the sirens and red lights on his marked patrol car and made a traffic stop of the SUV. Deputy Burk asked appellant for his driver's license and the SUV's registration or dealer paperwork. Appellant was unable to produce his license or any paperwork for the SUV. Deputy Burk asked appellant to step out of the SUV. Appellant put the SUV into gear and drove away.

Deputy Burk followed, and a second sheriff's vehicle joined the pursuit. Appellant did not slow down. All the deputies discontinued their pursuit.

Appellant turned down Tamarind Street. Deputies Bolder and Garcia watched appellant lose control of the SUV on Tamarind and crash into a parked vehicle. Appellant got out of the SUV and fled. He was pursued by Deputies Bolder and Garcia. Deputy Gutierrez arrived at the scene and joined the pursuit. Deputies Bolder and Garcia reached and attempted to subdue appellant, but he resisted. Deputy Gutierrez provided assistance, but appellant still struggled.

Deputy Burk arrived, then Deputy Peacock. Deputy Peacock got his Taser and was eventually able to use it to subdue appellant. Appellant was then placed in handcuffs.

Procedural Facts

Deputy Burk was the only witness on the felony evading charge. The deputy was also an Army reservist. On April 24, 2006, the date originally set for trial, the prosecutor provided appellant with some newly discovered evidence about the struggle to subdue him, and also asked for a continuance to conduct a conditional examination of Deputy Burk, who was in Utah for military training. The prosecutor believed that Deputy Burk was about to receive orders to deploy to Iraq on May 3. Appellant agreed to a two-day continuance for the court to hear the prosecutor's motion for leave to conduct the conditional examination.

On April 26, the prosecutor presented an oral motion for the conditional examination. Deputy Burk was present in court. The prosecutor clarified that the deputy was in training in Utah and had been ordered to Utah and Arizona for more training, which was expected to last for four to six months. The court granted the motion for a conditional examination, but was unable to hold the examination that day. The prosecutor requested that it be held on Friday, April 28. Appellant objected that the 26th was the last day for trial. The court then offered to start the trial that day, the 26th, with Deputy Burk's testimony to be heard live on Friday the 28th.

Appellant decided that he would prefer a continuance to investigate the new evidence, and the parties agreed on a trial date of May 31. The conditional examination was set for May 1, and took place as scheduled.

On May 31, the date set for trial, the prosecutor informed the court that Deputy Burk was on active military duty and asked that the videotape of the conditional examination be admitted at trial. The court held a hearing on the request.

Deputy Henry Aguilar testified that he was the training and scheduling deputy for the Compton's Sheriff's station. Deputy Aguilar had a copy of one of Deputy Burk's orders. Those orders required him to be in Utah through May 28. Deputy Aguilar had spoken with Deputy Burk before May 28, and Deputy Burk stated that he expected further orders requiring his presence in Utah effective June 3, a Saturday. In between May 28 and June 3, Deputy Burk was "in transition." Deputy Aguilar understood this transitional time to be leave provided by the military for reservists to take care of personal business. Deputy Aguilar viewed Deputy Burk as being on military leave from the sheriff's department during the transition period. Deputy Aguilar indicated that travel time between Utah and Los Angeles was at least one day and maybe two.

Deputy Scott McCormick testified that he attempted to contact Deputy Burk on May 30, but was unsuccessful. The morning of the hearing, Deputy Burk called Deputy McCormick and stated that he was en route to Utah and would be on active military duty as soon as he got back to his unit, for six weeks of training. Deputy McCormick did not know what means of transportation Deputy Burk was using to get to Utah.

Discussion

1. Unavailable witness

Appellant contends Deputy Burk was available as a witness from May 29 to June 2, because his military orders did not cover that period and because Deputy Burk was in California during that period. He further contends that the prosecution should have served a subpoena on Burk when he returned to California after his training ended on May 28 and presented him as a witness on the morning of June 2, the first day that evidence was presented in this trial. He claims that the prosecution could have flown Burk to Utah after his testimony.

"Evidence of former 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." (Evid. Code, 1291, subd. (a)(2); see also Pen. Code, 686, subd. (3)(a).)

A declarant is an "unavailable witness" if he is absent from the hearing and "the court is unable to compel his or her attendance by its process" or "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, subds. (a)(4) & (a)(5).) These two means of proving unavailability are "closely related but slightly different." (People v. Smith (2003) 30 Cal.4th 581, 610.) A trial court's ruling admitting prior testimony on both grounds may be affirmed on either ground. (Ibid.)

Appellant concedes that when Burk was on active military duty in Utah, he was unavailable as a witness within the meaning of Evidence Code section 240. (People v. Thompson (1998) 61 Cal.App.4th 1269, 1280.)

We do not agree with appellant that Deputy Burk was available from May 29 to June 2, and so could have testified on June 2.[1]

Deputy Burk initially told Deputy Aguilar that his next set of orders would be effective June 3, and that he had a week between orders to take care of personal business. At some point, for reasons that are not clear in the record, Deputy Burk's effective active duty date changed. On May 31, Deputy Burk told Deputy McCormick that he was en route to Utah and that he would be on active military duty when he reached his unit. Burk's method of transportation was not known. Assuming that Burk was driving, if he left on the morning of May 31, he should have reached Utah by the end of the next day, June 1. At that point, he would have been on active duty and unavailable.

To the extent that appellant contends that the prosecutor was required to make efforts to secure the presence of Deputy Burk even though the efforts would have been futile, we do not agree. The prosecutor was required only to make reasonable efforts to locate Deputy Burk. When a witness's location renders him unavailable, the prosecutor is not required to do a futile act. (People v. Smith, supra, 30 Cal.4th at pp. 610-611.)

The record before us shows that when the conditional examination was done on May 1, the prosecutor believed that Deputy Burk would be on active military duty in Utah for the next six to eight weeks, well beyond the time of trial. Thus, it was reasonable to believe at that time that a subpoena would have been ineffective. (See People v. Thompson, supra, 61 Cal.App.4th at p. 1280.)

On about May 25, Deputy Burk apparently learned that his next set of orders would be effective June 3, creating a five day gap between his two sets of orders, and communicated this information to the Sheriff's Department. The Sheriff's Department considered him to be on military leave during this period. It appears that the prosecutor understood this to mean that the deputy was on military duty. She represented to the court immediately before the hearing on Deputy Burk's availability that he was on active duty. Thus, it was reasonable for her not to attempt to subpoena Deputy Burk. (See People v. Smith, supra, 30 Cal.4th at pp. 610-611 [prosecutor's due diligence is assessed in light of prosecutor's reasonable understanding of witness's location]; see also People v. Thompson, supra, 61 Cal.App.4th at p. 1280.)

Appellant also contends that the prosecutor should have requested that the military make Deputy Burk available for trial. Relying on Barber v. Page (1968) 390 U.S 719, appellant argues that the possibility of a refusal by the federal authorities does not excuse a failure to request that the witness be made available. (Id. at pp. 724-725.) Barber involves a witness who was in federal prison. There was a procedure for procuring the presence of federal prisoners as witnesses in state trials, and the policy of the federal prison system was to make such prisoners available. There is nothing in the record to show that the Army Reserve has a policy of making active duty reservists in training available as witnesses in trials held away from the training location.

2. Parole revocation fine

Appellant contends, and respondent agrees, that the trial court erred in imposing a parole revocation fine, and that the fine must be stricken. We agree as well.

A parole revocation fine must be imposed when the court imposes a sentence with a period of parole. (Pen. Code, 1202.45.)

Appellant's sentence does not include a period of parole. Imposition of sentence was suspended, and appellant was placed on probation for three years, the first year of which was to be served in county jail. A parole revocation fine is not authorized in such a case. (People v. Tye (2000) 83 Cal.App.4th 1398, 1400-1402; People v. Calabrese (2002) 101 Cal.App.4th 79, 86-87.)

Disposition

The parole revocation fine is ordered stricken. The judgment of conviction is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

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[1] To the extent that appellant contends that Burk could have testified on May 31, we do not agree. Jury selection was not complete until June 1.