P. v.
Filed 6/22/12 P. v. Merced CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and
Respondent,
v.
SALVADOR MERCED,
Defendant and
Appellant.
B233868
(Los Angeles County
Super. Ct. No. NA087708)
APPEAL
from a judgment of the Superior Court
of Los Angeles
County. Mark Kim,
Judge. Affirmed.
Lenore De Vita,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Stephanie A. Miyoshi and
Robert C. Schneider, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________
Salvador
Merced appeals from the judgment entered after he was convicted of two
aggravated assault counts, one for using force likely to produce great bodily
injury, and the other for using a firearm.
We reject his contention that the trial court erred by allowing into
evidence the preliminary hearing
testimony of the victim due to her unavailability as a witness. We also reject his contentions that he could
not be convicted of both assault counts because they arose from the same
incident, and that the trial court erred by allowing into evidence bullets
found in the back seat of his friend’s car.
Therefore, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
On
the night of January 4, 2011, Sonya Hernandez was beaten and pistol-whipped by
her then boyfriend, Salvador Merced.
Merced was eventually convicted of assault with force likely to produce
great bodily injury and assault with a firearm.
However, nearly all the evidence against Merced came from family members
or police officers who spoke to Hernandez right after the incident. Although Hernandez testified at the
preliminary hearing, she claimed to recall almost nothing about what
happened. Hernandez later went into
hiding, and as a result, her preliminary hearing testimony was read into
evidence at trial.
Hernandez’s
mother, Lauren Bollen, testified that Hernandez phoned her around 11:00
p.m. Her daughter was upset and crying,
and said Merced had beaten her. Bollen
drove to Hernandez’s house. When she got
there, she saw that Hernandez’s face was bloody. Bollen was about to drive Hernandez to the
hospital when a green car drove up and stopped nearby. Merced was in the back seat. The green car sped off, but Bollen followed
it into a dead-end alley. Merced pointed
what looked like a gun at her. She drove
off and took Hernandez to the hospital.
After
hearing about the assault, Hernandez’s sister, Stephanie Najera, drove to
Hernandez’s house about 90 minutes after the incident. A four-door Saturn was double-parked in front
of Hernandez’s house. Najera saw Merced
in the back seat of that car. He got out
and waved what looked like a gun. Najera
drove off and headed to the hospital.
Merced
was charged with four counts: (1) assault by means of force likely to produce
great bodily injury (Pen.
Code, § 245, subd. (a)(1)) against Hernandez; (2) assault with
a firearm (Pen. Code, § 245, subd. (a)(2)) against Hernandez;
(3) assault with a firearm against Bollen; and (4) brandishing a firearm (Pen. Code,
§ 417, subd. (a)(2)) as to Najera.
enhancements were also alleged.
Two
Los Angeles police officers – Esmeralda Ruiz and Gregory Halka – testified that
they spoke with Hernandez while she was in the hospital. According to Ruiz, Hernandez told her that
everyone was drinking at her house when Merced became angry at her. Hernandez said that Merced punched and kicked
her in the face, and then started beating her with a handgun he pulled from his
pocket. Hernandez said that Danny Vega,
who was also at her home, told Merced to stop.
Hernandez told Ruiz that Merced then left with Vega in a green car. Ruiz saw that Hernandez’s face was swollen
and cut, and that there were scratches on her neck, arm, and leg.
Halka
saw the same injuries, along with bruises on her chest and other areas. According to Halka, Hernandez told him that
Merced punched and kicked her, choked her, and then struck her several times
with a gun he pulled from his waistband.
The
emergency room doctor who treated Hernandez testified that she had a deep,
gaping laceration on her face, another laceration on her forehead, a broken
nose, broken teeth, and swelling and bruising around her face and neck that
were consistent with having been strangled.
She also had a concussion. Her
injuries were consistent with being struck by a metal object, although they
could have been caused by fists or a baseball bat.
Hernandez
testified at the preliminary hearing
that she was with Merced and two other people – Vega and Linsdey Fernandez –
when the incident occurred. She had been
drinking heavily. Hernandez said that
she and Merced were fighting with and yelling at each other. She recalled that Merced punched her, but
claimed to remember nothing else. She
did not recall if Merced kicked her, choked her, or pulled out a gun and struck
her with it. She remembered phoning her
mother to take her to the hospital, but remembered nothing “between that night
and the next day.”
Hernandez
did not know and did not remember whether she spoke to Officers Ruiz and Halka
while she was in the hospital. She
answered no when asked whether she told those officers the details of the
incident, including being punched, kicked, and beaten with a handgun. She also answered no when asked whether she
told Ruiz that Merced left with Vega in a green car.
Merced
testified that he was at Hernandez’s house with Vega and Fernandez, and all had
been drinking heavily. Hernandez called
him a cheater and began hitting him. He
grabbed her and threw her, then left with Vega and Fernandez. He did not own a gun, and denied having one
the night of the incident. He also
denied striking Hernandez at all.
According to Merced, Hernandez sent him a letter in April 2011 stating
that she lied at the preliminary hearing because the officers who interviewed
told her what to say and threatened her.
Hernandez visited Merced in jail and still had feelings for him.
The
jury convicted Merced of the two assault counts as to Hernandez, and acquitted
him of the assault and brandishing counts as to Bollen and Najera. He received a combined state prison sentence
of 19 years. His sentence for the
assault with force likely to produce great bodily injury count was stayed
pursuant to section 654.
On
appeal, Merced contends: (1) the trial court violated his constitutional
right to confront witnesses when it allowed the jury to hear Hernandez’s
preliminary hearing testimony because the prosecution did not use proper
diligence in attempting to secure her attendance at trial; (2) multiple convictions for assault with a
firearm and assault with force likely to produce great bodily injury were not
allowed because both arose from a single, continuous assault; and (3) the trial court erred by allowing in evidence
that two bullets were found in the back seat of a Saturn occupied by Merced’s
friends Fernandez and Vega hours after Hernandez was beaten.
DISCUSSION
1.
No Error
In Finding Hernandez Unavailable to Testify
A.
Applicable Law
A
criminal defendant has a constitutional right to confront and cross-examine the
witnesses against him. (U.S. Const., 6th
Amend.; Cal. Const., art. I, § 15.)
However, under California law, an absent witness’s testimony from an
earlier hearing may be admitted in evidence at a subsequent trial if the
witness was subject to cross-examination by the defendant during the earlier
hearing, and if the prosecution exercised reasonable or due diligence in
attempting to secure the witness’s attendance at the subsequent trial. (Evid. Code, §§ 240, subd. (a)(5)
[unavailability of witness], 1291 [prior testimony]; People v. Cromer (2001) 24 Cal.4th 889, 897-898 (
There is no
mechanical definition of the term “due diligence.” However, it implies perseverance, and
substantial and untiring efforts made in earnest. Factors to be considered include whether the
search was timely commenced, the importance of the witness’s testimony, and
whether leads were competently explored.
(Cromer, supra, 24 Cal.4th at p. 904.) If the facts concerning the prosecution’s
efforts to secure a witness’s presence at trial are in dispute, we defer to the
trial court’s factual findings. We then
independently review those facts against the requisite legal principles. (Id.
at pp. 900-901.)
B.
Facts Concerning Due Diligence
The facts
surrounding whether the prosecution used due diligence in trying to secure
Hernandez’s appearance at trial come from two sources: (1)
the timing of the trial date; and (2)
the testimony of the prosecution investigator assigned to locate
Hernandez and serve her with a subpoena.
The preliminary
hearing was February 17, 2011. Merced
was arraigned on March 3, 2011, where his trial was set for April 29, 2011, as
the 57th day of 60. On April 29, 2011,
the trial was continued to May 16, 2011, as 0 of 10. On May 16, 2011, the trial was continued to
May 23 as 7 of 10. On May 23, the
prosecution declared Hernandez unavailable, the due diligence hearing was held,
and jury selection began.
Ted Holst, a
senior investigator for the District Attorney’s office, testified that on
May 11, 2011, he was asked to serve Hernandez with a subpoena. He spent that day doing background work on
Hernandez so he could determine where he might best find her. He first tried to serve her on May 12 at her
house, but nobody was home. He left his
business card on her door. He kept phoning
her for 10 days. She answered once, but
hung up when he identified himself.
Holst left messages the other times.
Between May 12 and 18, he went to Hernandez’s home multiple times at
different times of day, starting as early as 7:00 a.m., and ending as late as
6:00 p.m.[3]
He also contacted
Hernandez’s mother and sister several times.
They told him that Hernandez was in hiding because she did not want to
testify and that they did not know where Hernandez was staying. He went to the sister’s house and knocked on
the door three times.
Holst determined
that Hernandez was unemployed. He twice
contacted the coroner’s office and several area hospitals. Holst also spoke with several of Hernandez’s
neighbors, but they either did not know her, or had not seen her for about a
week.
C.
The Prosecutor Used Due Diligence
Merced contends
the prosecution failed to show it exercised due diligence in its efforts to
ensure Hernandez appeared at trial because:
(1) Hernandez’s failure of
recollection at the preliminary hearing showed she posed a substantial risk of
avoiding service of a subpoena, and the prosecution failed to keep tabs on her
and waited too long to try to serve its subpoena; and (2) investigator Holst’s
efforts were insufficient. We disagree.
We will not
reverse just because the defendant can conceive of further steps the
prosecution could have taken, or because the prosecution left some avenues
unexplored. The law requires only
reasonable efforts, not prescient perfection.
(People v. Diaz (2002)
95 Cal.App.4th 695, 706 (Diaz).) Nor can the courts require the prosecution to
keep periodic tabs on every material witness in a criminal case. It is often unclear what effective and
reasonable controls the prosecution can use on a witness who plans to go into
hiding long before a trial date is set.
(Ibid.)
In
key eyewitness were made at the start of the trial. A police officer spoke to the witness’s
mother, who said she had no information.
The officer also went to the witness’s school, but got no leads. Patrol officers on all three shifts were
asked to look for her. The officer was
with the witness’s brother when the witness phoned. The brother said she knew the police were
looking for her and she was determined not to testify. The officer also checked with local hospitals
and the Department of Motor Vehicles, and also checked to see if the witness
had been arrested recently. Furthermore,
one of the investigating officers had to take the witness to the preliminary
hearing to get her to testify, and knew she was afraid to do so. He monitored her whereabouts, but decided not
to subpoena her until the day of trial in order to avoid scaring her off. The Diaz
court affirmed the trial court’s findings that the witness was unavailable, in
part because of her calculated efforts to avoid testifying, and in part because
reasonable efforts were made to subpoena her under the circumstances.
A comparison of
instructive. First, unlike in
its witness because it knew she might go into hiding, there is no evidence that
the prosecution in this case had reason to suspect Hernandez would not testify.
assertion to the contrary is based on Hernandez’s preliminary hearing
testimony, but her failure of recollection was neither a refusal to testify nor
a recantation of her statements to the police.
She confirmed that she and Merced had been fighting and that he had
punched her, but claimed she did not recall what happened after that. While this might suggest a decision on her
part to shield Merced, it does not by itself raise a substantial risk of flight
to avoid service of a subpoena.
Second, the
prosecution used efforts similar to those endorsed in Diaz: the investigator
staked out Hernandez’s house at different times of day for several days, made
repeated attempts to phone her, spoke with and went to the home of her family
members on several occasions, talked to the neighbors, and checked the
hospitals and jails. These efforts began
on May 11, when the trial was set for five days away as zero of ten, and continued
through May 18, by which time the trial date had been moved to May 23.
Finally, we take
into account that Hernandez was actively evading service of the subpoena, and
had told her family members that she refused to testify, and in that light we
hold that the prosecution used due diligence to secure her attendance at
trial. (Diaz, supra, 95 Cal.App.4th at pp. 706-707;
18 Cal.App.3d 793, 796-797 [attempts to subpoena witness began May 20,
with original trial date of March 27, and continued trial dates of May 8 and
May 19, held sufficient because witness had gone into hiding to avoid
testifying].)
2.
Multiple
Assault Convictions Were Proper
When Merced
committed and was tried for his crimes, section 245, subdivision (a)(1) applied
to any person who assaulted another “with a deadly weapon or instrument other
than a firearm or by any means of force likely to produce great bodily injury .
. . .” Section 245, subdivision (a)(2)
read as it does now, prohibiting an assault with a firearm.
force likely to produce great bodily injury (former § 245, subd. (a)(1))
and assault with a firearm. (§ 245,
subd. (a)(2).) The prosecution’s theory
was that Merced’s use of fists and feet constituted the first offense, while
his use of a handgun to bludgeon Hernandez constituted the second offense. Merced contends that his conviction of both
offenses was improper because regardless of the instrumentalities used, all the
blows he struck occurred during one continuous course of conduct. He is wrong.
Under section 954,
multiple convictions for different offenses occurring during an indivisible
course of conduct are permitted unless one offense is a lesser included offense
of the others. (People v. Reed (2006) 38 Cal.4th 1224, 1226.) Where multiple convictions are permitted,
multiple sentencing is barred under section 654, and sentence on all but the
most serious count must be stayed. (
two offenses of which he was convicted was a lesser included offense of the
other, and we therefore deem the point waived.
(People v. Carrillo (2008)
163 Cal.App.4th 1028, 1035.)
We alternatively
affirm on the merits. If a crime cannot
be committed without also necessarily committing a lesser offense, the latter
is a lesser included offense of the former.
(People v. Sloan (2007)
42 Cal.4th 110, 116.) In
1023, 1033, the court held that assault with a deadly weapon or instrument
other than a firearm under former section 245, subdivision (a)(1) could not be
a lesser included offense of assault with a firearm, because such an
interpretation would render the latter provision redundant.
We believe the
same reasoning applies here. Assault with
force likely to produce great bodily injury does not require proof that a
firearm was used, and assault with a firearm cannot be committed by the use of
some other instrumentality. An assault
with a firearm can also be committed without the likelihood of great bodily
injury when, for example, it is used as a blunt instrument. If an assault with force likely to produce
great bodily injury could be committed with a firearm, then subdivision (2)
would be redundant, an interpretation that should be avoided. It would also lead to absurd results. For instance, an attacker who is punching his
victim in a manner likely to produce great bodily injury might well meet
resistance and an effort to defend one’s self.
If the attacker then produced a handgun, the victim is likely to stop
resisting, making herself even more vulnerable.
We will not endorse such a result.
Accordingly, we hold that the multiple convictions were proper in this
case.
3.
Evidence
of the Two Bullets Was Properly Allowed
Officer Ruiz was allowed
to testify that at around 2:10 a.m. on January 5 she arrived at the scene of a
traffic stop, where Danny Vega and Lindsey Fernandez had been pulled over in an
aqua blue Saturn. The vehicle generally
matched the description of the vehicle in which Merced fled after the assault
on Hernandez. Fernandez was the
driver. In the backseat were two unspent
rounds of .22 caliber ammunition. Merced
was not in the car, and no gun was found there.
The evidence was offered as a rebuttal to Merced’s testimony that he did
not have a gun and did not use one on Hernandez. Merced objected to this evidence on relevance
grounds but the trial court allowed it as circumstantial evidence that a gun
had been used in the attack on Hernandez.
Merced contends
this evidence was not relevant because the gun he supposedly used was never
recovered, no gun was found in the car, he was not in the car at the time of
the traffic stop, and there was an insufficient connection between him and the
ammunition. We disagree.
Hernandez told the
police and her mother that Merced beat her with a gun. The mother and sister both saw Merced in the
back seat of a green sedan, carrying a gun.
Hernandez told the police that after Merced stopped his assault, he left
with Vega in a green car. Merced testified that he left with both Vega
and Fernandez. The fact that two bullets
were found in the backseat of an aqua colored Saturn occupied by Vega and
Fernandez just three hours after the assault is relevant to whether Merced had
a gun, as Hernandez claimed.
Even if the
evidence was not relevant, its admission was harmless. The case turned on whether the jury believed
the mother, sister, and the two investigating officers, and their stories were
backed up by the medical evidence showing the nature and extent of Hernandez’s
injuries. Even if evidence of the
bullets had been excluded, we conclude that a different result was not
reasonably probable. (Evid Code,
§ 353, subd. (b); People v. Harris
(2005) 37 Cal.4th 310, 336.) We
also conclude the evidence was harmless even under the more stringent federal
test, which requires a showing that the error was harmless beyond a reasonable
doubt.
By way of
supplemental briefing, Merced also contends that admission of the evidence
violated his constitutional due process rights.
However, the admission of relevant evidence does not violate a
defendant’s due process rights unless the evidence was so prejudicial that it
rendered the trial fundamentally unfair.
(People v. Partida (2005)
37 Cal.4th 428, 439.) As previously
discussed, we conclude that the evidence was relevant, and that its admission
was harmless under the harmless error standard applicable to errors under both
state law and the United States Constitution.
Merced also
contends that even if the bullet evidence was relevant, its prejudicial effect
outweighed its probative value under Evidence Code section 352. Merced concedes that no such objection was
made, but contends that this failure was excused because the trial court’s
ruling that the evidence was relevant rendered the objection futile. The cases he cites for this proposition are
inapposite and nothing in the record supports his contention. We therefore deem the issue waived. (Evid. Code, § 353, subd. (b).)
The judgment is
affirmed.
RUBIN,
J.
WE CONCUR:
BIGELOW,
P. J.
SORTINO,
J.*
[1] All
further undesignated section references are to the Penal Code.
[2] Although
Merced mentions the federal constitutional standard – a showing of a good faith
effort to have the witness appear at trial – he notes that the California
standard is consistent with that and limits his arguments to California law.
