P. v. Smith
Filed 2/6/13
P. v. Smith CA2/2
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opinion has not been certified for publication or ordered published for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 TWO
THE PEOPLE,
Plaintiff and
Respondent,
v.
BRYAN SMITH,
Defendant and
Appellant.
B238011
(Los Angeles County
Super. Ct. No. BA387223)
APPEAL from a judgment of
the Superior Court of
County. Monica Bachner,
Judge. Affirmed.
Kimberly Howland Meyer,
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, Mary Sanchez and Jonathan M. Krauss, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant
Bryan Smith (defendant) appeals from the judgment entered after a jury
convicted him of evading an officer in a
vehicle driven in willful or wanton disregard for the safety of persons or
property (Veh. Code, § 2800.2, subd. (a); count 1), misdemeanor
hit-and-run driving (Veh. Code, § 20002, subd. (a); count 2), and unlawful
driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count
3). Defendant contends the trial court
erred by admitting the preliminary hearing testimony of a witness concerning
count 3, based on that witness’s unavailability at the time of trial, and that
the trial court’s erroneous ruling violated defendant’s federal and state
We conclude that the trial
court did not err by admitting the prior testimony of an unavailable witness
and therefore affirm the judgment.
FACTUAL
BACKGROUND
Saif Alshagra (Alshagra) was driving
south in heavy traffic on the 101 freeway in his company’s marked security
vehicle at approximately 10:00 p.m. on July 29, 2011. As he approached the Sunset Boulevard
on-ramp, he saw a white Porsche with dealer license plates merge onto the
freeway. Alshagra heard a crash and as
he looked to his right he saw the Porsche hit another car and then continue on
without stopping. Alshagra heard another
crash and looked to see the Porsche hit a second car. Again, the Porsche did not stop. The Porsche next attempted to merge into
Alshagra’s lane, and hit Alshagra’s car in the process. The Porsche then merged onto the center
divider, where Alshagra saw it hit three more cars before driving away. Alshagra called 911 and continued to follow
the Porsche.
California Highway Patrol Officer
Brent Patrick Leatherman (Leatherman) was in a marked patrol car traveling south
on the 101 freeway when he responded to a 911 dispatch involving a white
Porsche. He located both the Porsche and
Alshagra’s vehicle and merged into the lane behind the Porsche. Alshagra followed behind Leatherman’s
vehicle.
Leatherman activated the siren and
lights on his patrol car and ordered defendant to pull over and exit the
freeway. Defendant did not stop, but
accelerated and swerved between cars to avoid Leatherman. Although traffic on the freeway was heavy,
and cars were traveling at a speed of approximately five miles per hour,
defendant straddled two lines and drove between the cars at 30 to 35 miles per
hour. While doing so, the Porsche
collided with another vehicle and continued without stopping. Defendant then accelerated to 70 miles per
hour and exited the freeway at Alvarado
Street.
Leatherman and Alshagra followed the
Porsche in a high speed chase as defendant weaved in and out of traffic on city
streets. At Glendale
Boulevard, defendant stopped behind another
car at a red light, and Alshagra blocked the Porsche by pulling in front. Alshagra then left his vehicle and took cover
in the bushes while Leatherman approached the Porsche with his gun drawn. Defendant was found sitting calmly in the
driver’s seat with his hands on the steering wheel. Leatherman subsequently learned that the
Porsche belonged to Paul Mittleman (Mittleman), that it had been reported
stolen the previous day, and that its license plates were hidden behind the
dealer plates.
Mittleman testified at the preliminary
hearing that sometime before July 30,
2011, he took his Porsche to an auto body shop because the car
had been damaged and needed repairs. He
did not know defendant and had not given defendant permission to drive the car.
Mittleman could not be located as
the October 27, 2011 trial date
approached. On October 27, 2011, the trial
court held a hearing to determine whether the prosecution had exercised reasonable diligence in attempting
to compel Mittleman’s appearance at trial.
Ken Ward (Ward), a senior investigator for the Los Angeles County
District Attorney’s office, and Shirley Benjamin (Benjamin), a witness
assistance coordinator for the Los Angeles County District Attorney’s Office,
both testified regarding their efforts to locate Mittleman.
On or about September 29, 2011, Benjamin
attempted to serve Mittleman with a trial subpoena by mail at 432 Vista
Street, the address listed for Mittleman
on the witness list for trial. The
subpoena was returned because there was no such address. On October 4, Benjamin followed up by calling
Mittleman’s listed cell phone number and leaving him a message. The next day, a man who identified himself as
Mittleman returned Benjamin’s call and told her that he had moved to Germany, had not
received the subpoena, and would not be available to appear in court. Mittleman said Leatherman had told him that
he would not have to be present in court.
When Benjamin asked for Mittleman’s address in Germany, Mittleman
would not provide it, stating that he did not yet have a permanent address but
that he could be reached by cell phone.
On October 25, 2011, Ward’s supervisor asked
him to contact Benjamin, who was having difficulty locating Mittleman. After speaking with Benjamin, Ward searched a
database of California driver’s
licenses and learned that Mittleman’s address was 732 Vista
Street, and not 432 Vista
Street, as listed on the subpoena. Using Mittleman’s name, license number, and
social security number, Ward searched two additional databases for information,
and both indicated that Mittleman lived at 732 Vista
Street.
Ward drove to 732 Vista
Street, where he met Ms. Allen-Barr, who
told him she had recently purchased the property from Mittleman. According to Allen-Barr, Mittleman had relocated
to Germany, but she
did not know his precise whereabouts there.
Ward then contacted the Customs and
Protection Unit of the Department of Homeland Security at the Los
Angeles International Airport and spoke
with Agent Shawn Keyhoe. Ward requested
verification that Mittleman had left the country. Keyhoe asked that Ward send his request in an
email, but noted that the request “would have to go up through the chain of
command.†Ward knew from past experience
that obtaining a response to such a request could take months. He nevertheless sent an email request
concerning Mittleman’s whereabouts abroad.
He did not receive a response.
Ward also made a follow-up telephone call to Keyhoe’s office, but no one
was in the office to answer the call.
Ward next called the cell phone
number listed for Mittleman. No one
answered, but an outgoing voicemail message identified Mittleman as the owner
of the phone. Ward left a message for Mittleman
but did not receive a return call.
The prosecutor filed a declaration
regarding internet research he had undertaken to locate Mittleman. The prosecutor also gave an oral account of
his efforts at the due diligence hearing.
According to the prosecutor, several websites, including
sportinglife.com, hypebeast.com, brandmagazine.com, and huhmagazine.com.uk,
contained references to a Paul Mittleman moving from a job at Stussy to work
for Adidas in Germany. A Facebook page
indicated that Mittleman was an Adidas employee who lived in Herzogenaurach,
Germany. A September 29 post on that
Facebook page stated “Berlin bound,†and several other posts indicated that
Mittleman was in Germany.
The trial court found that the
hearsay evidence offered by the prosecutor concerning Mittleman’s whereabouts
was admissible to show the prosecution’s diligence in attempting to locate
Mittleman, even though such evidence was not admissible to show that Mittleman
was actually in Germany. The trial court
further found that Mittleman was absent from the hearing and that the
prosecutor had exercised reasonable diligence but had been unable to procure
Mittleman’s attendance through the court process.
Alshagra and Leatherman testified at
the trial about their pursuit of defendant, and Mittleman’s preliminary hearing
testimony was read into evidence. The
jury convicted defendant of all three of the charged Vehicle Code
violations. The trial court sentenced
defendant to a total term of two years eight months in state prison for count
1, a concurrent six-month term for count 2, and a consecutive term of eight
months for count 3. Defendant
timely appealed.
DISCUSSION
law and standard of review
A criminal defendant has the right,
under both the federal and California constitutions, to confront the
prosecution’s witnesses. (
620.) A defendant’s constitutional right
of confrontation, while important, is not absolute. It is subject to an exception allowing the
admission of a witness’s prior recorded testimony if the witness is unavailable
and the defendant had a prior opportunity to cross-examine the witness. (People
v. Cogswell (2010) 48 Cal.4th 467, 477 (Cogswell).) That exception is codified in Evidence Code
section 1291, which provides, in pertinent part as follows:
“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).)
A declarant is “unavailable as a
witness†if absent from the hearing and the proponent of the declarant’s prior
testimony has exercised reasonable diligence but has been unable to procure the
declarant’s attendance by the court’s process.
(Evid. Code, § 240, subd. (a)(5).)
“Reasonable diligence, often called ‘due diligence’ in case law,
‘“connotes persevering application, untiring efforts in earnest, efforts of a
substantial character.â€â€™
[Citation.]†(
476-477, quoting People v. Cromer (2001)
24 Cal.4th 889, 904.) Relevant factors
include whether the search for the witness was timely begun and whether leads
were competently explored. (
341 (Wilson).) A trial court’s due diligence determination
is reviewed de novo. (
diligence
Defendant contends the prosecution’s
unsuccessful attempt to serve Mittleman by mail with a subpoena and its belated
follow-up efforts to locate and procure Mittleman’s attendance were per se
unreasonable. The record does not support
this contention.
Prosecutorial investigator Benjamin
attempted to serve Mittleman with a trial subpoena by mail more than a month
before the trial was set to begin. Less
than a week later, when the subpoena was returned as undeliverable, she immediately
contacted Mittleman by telephone and learned that Mittleman had relocated to
Germany. She asked Mittleman for his
address in Germany, which Mittleman declined to provide.
Investigator Ward learned of
Benjamin’s difficulty in locating Mittleman two days before the due diligence
hearing. He conducted several database
searches, learned that the address listed for Mittleman on the witness list was
incorrect, and located the correct address in Los Angeles. Ward then drove to that address and spoke to
the current resident, who confirmed that Mittleman had moved to Germany. Ward next contacted the Department of
Homeland Security in an effort to determine Mittleman’s whereabouts. Finally, Ward called Mittleman’s cell phone
and left a message, although he did not receive a return call before the
hearing.
The prosecutor also undertook
efforts to locate Mittleman. He searched
several internet websites and found references to a Paul Mittleman having moved
from Los Angeles to Germany sometime on or after September 29, 2011.
The foregoing efforts demonstrate
reasonable diligence on the part of the prosecution. The attempt to serve Mittleman with a trial
subpoena by mail more than a month before the scheduled trial date was neither
untimely nor unreasonable. Nothing in
the record indicates that the prosecution knew or had reason to know of
Mittleman’s intent to relocate to Germany.
“The prosecution is not required ‘to keep “periodic tabs†on every
material witness in a criminal case . . .’†(Wilson, supra, 35 Cal.4th at p. 342), or to take preventative
measures to stop the witness from disappearing absent knowledge of a
substantial risk that the witness would flee.
(Ibid.) The record shows timely, reasonable, and
diligent efforts by the prosecution in its efforts to locate Mittleman and
procure his attendance at trial.
Defendant next argues that the
prosecution should have pursued other means of compelling Mittleman’s
attendance, such as the issuance of a federal subpoena, or enlisting the help
of German authorities pursuant to the international Treaty on Mutual Legal
Assistance in Criminal Matters between Germany and the United States. That the prosecution did not pursue these
additional measures does not compel a finding that it failed to exercise reasonable
diligence in this case. (
1233, 1298.) Defendant cites
1425 (Sandoval) as authority for his
position that pursuing these additional means of compelling a foreign witness’s
attendance at trial is a constitutionally mandated element of the prosecution’s
burden of demonstrating reasonable diligence.
The court’s holding in Sandoval is
not so broad, and the facts of that case are distinguishable. The trial court in Sandoval found a witness to be unavailable simply because he was a
Mexican citizen who had been deported to Mexico. (Id. at
p. 1443.) Although prosecutorial
investigators had located the witness, who had expressed his willingness to
testify if he were given $100 to obtain a visa to enter the United States legally,
the prosecution did nothing more to secure the witness’s attendance at
trial. (Id. at p. 1442.) Given those
circumstances, the appellate court in Sandoval
concluded that admission of the witness’s preliminary hearing testimony
violated the defendant’s constitutional right of confrontation.
The circumstances in the instant
case are substantially different from those in Sandoval. The investigators
here did not know Mittleman’s address or his precise location in Germany. Mittleman did not express any willingness to
testify at trial and he would not provide an address where he could be reached
in Germany. The trial court’s finding of
unavailability was based not on Mittleman’s presence in Germany, but on his
absence despite the prosecution’s efforts to procure his presence at
trial. Given these differences,
the trial court’s ruling.
error
Even assuming the trial court’s
admission of Mittleman’s prior testimony was erroneous, that error was harmless
beyond a reasonable doubt. (
18, 24.) To sustain a conviction under
Vehicle Code section 10851, subdivision (a), the prosecution bore the burden of
showing “by direct or circumstantial evidence†that defendant did not have
Mittleman’s consent to drive the Porsche.
(Veh. Code, § 10851, subd. (a); People
v. Clifton (1985) 171 Cal.App.3d 195, 199.)
There was ample evidence, apart from Mittleman’s preliminary hearing
testimony, that defendant did not have Mittleman’s permission to drive the
car. Officer Leatherman testified
without objection that Mittleman was the owner of the Porsche and that the car
had been reported stolen the day before defendant was apprehended while driving
it. Leatherman also testified that the
vehicle’s license plates were concealed beneath dealer plates that had been
placed on top of the actual license plates.
Both Leatherman and Alshagra testified that defendant took extreme and
dangerous measures to avoid being apprehended, driving erratically and at high
speeds in heavy traffic after being ordered to stop and pull over. Defendant’s possession of a stolen vehicle
and his efforts to evade the police were more than sufficient to support his
conviction under Vehicle Code section 10851, subdivision (a). (People
v. Clifton, supra, at pp. 199-200.)
There is no reasonable doubt that a rational jury would have found
defendant guilty of violating Vehicle Code section 10851, subdivision(a), even
in the absence of Mittleman’s testimony.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________,
J.
CHAVEZ
We concur:
___________________________,
P. J.
BOREN
___________________________,
J.
ASHMANN-GERST
