P. v. Smith
Filed 3/19/13 P. v. Smith CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
KWANASIA
SMITH,
Defendant and Appellant.
A133592
(San
Francisco County
Super. Ct. No. 215336)
INTRODUCTION
A
jury found Kwanasia Smith guilty of second
degree robbery. (Pen. Code,
§ 211.) The court sentenced her to
three years probation with the condition that she serve one year in either
county jail or a drug treatment program.
On appeal, Smith argues that the judgment must be reversed because the trial
court (1) violated her constitutional right to confrontation by admitting
victim of the robbery; and (2) denied her request for a pinpoint instruction
regarding the force element of the robbery charge. We reject these contentions and affirm the
judgment.
STATEMENT OF FACTS
The
incident that gave rise to the charge against Smith occurred near San
Francisco’s Union Square
at around 6:00 p.m. on March 11, 2011.
foreign exchange student who returned to Japan
before this case went to trial. An
edited transcript of Aida’s preliminary hearing testimony, which she gave with
the assistance of an interpreter, was admitted into evidence at Smith’s trial.
Aida
testified that she was listening to music on her iPhone when someone grabbed
her arm from behind and then reached into her jacket to take her iPhone. Aida turned around and saw her assailant who
she identified at the preliminary hearing as Smith. Aida screamed for Smith to stop and tried to
pull away but Smith “used her force†and her “tremendous strength†to take the
phone away from Aida. Aida testified
that she used all her strength to resist but that Smith was very strong and
Aida “ended up falling to the ground.â€
Under direct examination, Aida testified that Smith pushed her to the
ground. During cross-examination, Aida
stated that she lost her balance and fell while she was trying to resist
Smith. On redirect, Aida testified that
what “caused†her to fall to the ground was “both the fact that I tried to run
away from [Smith] as well as [Smith] was trying to take it from me with
tremendous force.â€
Aida
testified that, after she fell down, Smith took the phone from her pocket. When asked whether her phone could have
fallen out of her pocket when she fell down, Aida responded that was
“impossible.†Under cross-examination,
defense counsel asked Aida whether she remembered telling the police that,
after she fell to the ground, the phone fell out of her pocket onto the
sidewalk. Aida responded, “It’s probably
the problem of English. I don’t recall
saying anything like that.â€
Two
witnesses, David Palmer and Liza Murawski, testified at trial about the
physical altercation between Smith and Aida.
Both witnesses identified Smith as the aggressor. Palmer described the victim as an Asian girl
and Murawski described her as a petite Asian woman. Smith’s defense counsel stipulated that the
victim was Aida. Murawski testified that
Smith initiated the physical struggle by approaching Aida from behind with her
arms extended, and that Aida screamed as Smith “fumbled†to steal her
phone. When Smith ran away, Murawski
went to assist Aida who had fallen to the ground. Several people took off after Smith and
tackled her. One of them retrieved the
phone, and gave it to Murawski who returned it to Aida. Palmer testified that he saw Smith make
contact with Aida by either punching or pushing her, and then Aida fell to the
ground and Smith ran away. Palmer and
several other people chased after Smith who tossed the phone as she tried but
failed to get away.
San
Francisco Police Officer Eric Tapang testified at trial that he was called to
the crime scene to provide back up. When
Tapang arrived at the scene, Aida was “[c]rying, shaken, hysterical.†Tapang described Aida as an Asian female in
her early 20’s, who was approximately five feet tall and weighed maybe 100
pounds and no more than 110 pounds.
A
post-arrest interview of Smith was transcribed and admitted into evidence at
trial. After Smith waived her
took Aida’s cell phone. However Smith
said that she “didn’t have to touch her,†and denied that she put her hand in
Aida’s pocket. Smith said that she just
grabbed the cord which was hanging out of Aida’s pocket and then ran.
DISCUSSION
A. Aida’s Preliminary Hearing Testimony
Smith
contends that the trial court violated her constitutional right to
confrontation by admitting Aida’s preliminary hearing testimony into evidence
at trial.
Aida
testified at the preliminary hearing on April 22. On May 6, Assistant District Attorney Victor
Hwang asked Aida if she would be willing to testify at Smith’s trial in
approximately two months. Aida responded
that she was in the United States on a student visa, that she would be
returning to Japan in the near future, and that she had no interest in
testifying in this case. Hwang’s notes
from that conversation reflect that Aida indicated she was “[n]ot interested or
willing to come back for trial.â€
However, Aida agreed that Hwang could give her contact information to an
outside agency that could advise her about her rights, give her immigration
assistance and advise her about obtaining an alternate visa. After his conversation with Aida, Hwang gave
Aida’s contact information to a Japanese-speaking immigration paralegal at
Asian Pacific Islander Legal Outreach. A
few days later, the paralegal reported that Aida said she was not willing to
make a return trip for the trial.
On
May 10, Hwang sent a subpoena to Aida at her last known United States address,
but it was returned with a notice that Aida no longer lived there and that her
domestic telephone number was disconnected.
On August 16, Hwang attempted to contact Aida by sending an e-mail to
the address she previously provided, but the message bounced back as
invalid. Hwang also sent a message to
Aida through “Facebook,†asking if she would return for trial, but she did not
respond. On August 17, Hwang arranged
for an inspector to find Aida and determine whether she would testify. The investigator reported back that Aida had
returned to Japan and that she was not willing to return to the United States
for Smith’s trial.
On
August 31, the People’s trial counsel, Assistant District Attorney John Ullom,
contacted the Justice Department’s Office of International Affairs to inquire
about serving a subpoena on a Japanese national in Japan. The representative told Ullom that he believed
an invitation could be extended but that a Japanese national on Japanese soil
could not be compelled to testify in the United States. The Justice Department representative then
arranged a conference with the First Secretary and Legal Attaché at the Japanese
Embassy in Washington D.C. The First
Secretary told Ullom that it was not possible to compel a Japanese national on
Japanese soil to appear at a criminal trial in the United States via a
subpoena. An invitation could be
extended but appearance could not be compelled and a United States subpoena
would not have any force of law in Japan.
On
September 1, the trial court conducted an evidentiary
hearing to determine whether Aida was an unavailable witness and if her
preliminary hearing testimony was admissible at trial. The prosecution’s efforts to produce Aida
were established by declarations and testimony.
In addition, the court received written documentation regarding the
Mutual Legal Assistance Treaty (MLAT) between the United States and Japan which
confirmed that the MLAT does not provide the state or federal government with
subpoena power to compel a Japanese national residing in Japan to appear at a
criminal trial in the United States. At
the conclusion of the hearing, the trial court found that Aida was unavailable,
that the People had exercised due diligence in attempting to locate and produce
her as a witness, and that Aida’s preliminary hearing testimony was admissible
at trial.
“The
confrontation clauses of both the federal and state Constitutions guarantee a
criminal defendant the right to confront the prosecution’s witnesses. [Citations.]
That right is not absolute, however.
An exception exists when a witness is unavailable and, at a previous
court proceeding against the same defendant, has given testimony that was
subject to cross-examination.†(
892.)
“A
witness who is absent from a trial is not ‘unavailable’ in the constitutional
sense unless the prosecution has made a ‘good faith effort’ to obtain the
witness’s presence at the trial.
[Citation.] The United States
Supreme Court has described the good faith requirement this way: ‘The law does not require the doing of a futile
act. Thus, if no possibility of procuring the witness exists (as, for example,
the witness’ intervening death), “good faith†demands nothing of the
prosecution. But if there is a
possibility, albeit remote, that affirmative measures might produce the declarant,
the obligation of good faith may
demand their effectuation. “The lengths
to which the prosecution must go to produce a witness . . . is a
question of reasonableness. [Citation.]
The ultimate question is whether the witness is unavailable despite good-faith
efforts undertaken prior to trial to locate and present that
witness.†’ [Citation]†(People
v. Herrera (2010) 49 Cal.4th 613, 622-623 (Herrera).)
California
law imposes a similar requirement of “reasonable diligence†to establish
witness unavailability. (Evid. Code,
§ 240; Herrera, supra, 49
Cal.4th at p. 622.)
title="">[2] “The term ‘[r]easonable diligence, often
called “due diligence†in case law, “ ‘connotes persevering application,
untiring efforts in good earnest, efforts of a substantial character.’ †’ [Citation.]
Considerations relevant to the due diligence inquiry ‘include the
timeliness of the search, the importance of the proffered testimony, and whether
leads of the witness’s possible location were competently explored.’ [Citations.]
In this regard, ‘California law and federal constitutional requirements
are the same . . . .’
[Citation.]†(
“[T]o
establish unavailability, the prosecution must show that its efforts to locate
and produce a witness for trial were reasonable under the circumstances
presented. [Citations.] We review the trial court’s resolution of
disputed factual issues under the deferential substantial evidence standard
[citation], and independently review whether the facts demonstrate
prosecutorial good faith and due diligence [citation].†(Herrera,
supra, 49 Cal.4th at p. 623.)
Smith
contends that the prosecution’s “attempts to procure their victim’s presence at
trial†were insufficient to satisfy the “due diligence†requirement. We disagree.
Assistant District Attorney Hwang requested that Aida testify at trial
during a telephone conversation shortly after the preliminary hearing. He also attempted to serve a subpoena at
Aida’s last known address, sent her an e-mail at the address she previously
provided and left a message on her Facebook page. Hwang also facilitated contact between Aida
and a paralegal from the Asian Pacific Islander Legal Outreach who reported
that Aida was not willing to appear and testify at Smith’s trial. Finally, Hwang employed an inspector to
locate Aida in Japan and request again that she return for the trial. Throughout this process Aida never waivered
in her position that she would not return from Japan to testify at Smith’s
trial. Nevertheless, Assistant District
Attorney Ullom explored the possibility of compelling Aida’s attendance through
conversations with representatives of the United States Justice Department and
the Japanese Government. Both officials
expressly confirmed to Ullom that Aida could not be compelled to return to the
United States to testify at Smith’s trial.
On
appeal, Smith characterizes the prosecution’s efforts as “minimal†because
there is no evidence that Aida was offered financial assistance to fund a return
trip, or given a substantive explanation of the importance of her live
testimony at trial. However, evidence of
the three direct communications with Aida as well as Hwang’s other efforts to
communicate with her through e-mail and Facebook support the trial court’s
express finding that Aida had made an unequivocal decision that she was not
willing to return to the United States because she was pursuing her studies in
Japan and her cell phone had been returned to her.
Smith
also argues that the prosecution’s efforts were not sufficient because they
failed to issue a formal invitation to Aida pursuant to the MLAT. “[W]hen a criminal trial is at issue,
unavailability in the constitutional sense does not invariably turn on the
inability of the state court to compel the out-of-state witness’s attendance
through its own process, but also takes into consideration the existence of
agreements or established procedures for securing a witness’s presence that
depend on the voluntary assistance of another government. [Citation.]
Where such options exist, the extent to which the prosecution had the
opportunity to utilize them and endeavored to do so is relevant in determining
whether the obligations to act in good faith and with due diligence have been
met. [Citations.]†(Herrera,
supra, 49 Cal.4th at p. 628.) The
evidence in this record supports the conclusion that the prosecution did make a
reasonable effort to utilize the MLAT.
As discussed above, the prosecutor explored his options under that
treaty and discovered that Aida could not be compelled to return. Further, although an invitation could be
issued, by that point in the proceeding, Aida had made clear three different
times that she was not willing to return to the United States voluntarily. These circumstances support the trial court’s
finding that issuing an invitation under the MLAT would have been a futile
act.
Finally,
we find that any error regarding the admission of this preliminary hearing
testimony was harmless. The parties
agree that the harmless beyond a reasonable doubt test applies. (See Delaware
v. Van Arsdall (1986) 475 U.S. 673, 684.)
Smith’s theory is that Aida’s “contradictory†preliminary hearing
testimony was the only evidence supporting the force element of the theft
charge and, therefore, Aida’s physical presence at trial was essential to a
fair resolution of this issue by the jury.
Robbery
is defined as the “taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by
means of force or fear.†(Pen. Code,
§ 211.) “Where the element of
force or fear is absent, a taking from the person is only theft; although by
virtue of Penal Code section 487 it constitutes grand theft regardless of the
value of the property.†(
134, 139 (Morales).)
In
the present case, Aida’s testimony was not the only evidence that Smith took
Aida’s phone by force or fear.
phone from Aida. Two eyewitnesses
testified at trial that they observed Smith exert physical force on Aida. That testimony, along with the descriptions
of Aida’s reactions to Smith’s use of force that were provided by the witnesses
and the police officer who responded to the crime scene, constitute substantial
evidence that the phone was taken by force or fear.
Furthermore,
Aida’s testimony was not contradictory.
According to Smith, Aida contradicted herself by initially claiming that
Smith pushed her down but then admitting during cross-examination that she
slipped and fell trying to run away from Smith.
Smith overlooks that Aida also testified that she had some trouble
communicating in English and that she explained on redirect that she fell while
trying to get away from Smith who was using “tremendous force†to try to take
the phone from her.
Indeed,
by attempting to manufacture conflicts in Aida’s preliminary hearing testimony,
Smith confirms that her trial counsel had a full and fair opportunity to
cross-examine Aida at the preliminary hearing.
In the end, this was not a close case; the elements of the robbery
charge were established by strong evidence.
Although Aida’s testimony was important, it was corroborated by other
evidence at trial. Under all these
circumstances, any error regarding the admission of the preliminary hearing
testimony was harmless beyond a reasonable doubt.
B. The Pinpoint Instruction
The
jury was instructed on the elements of robbery with CALCRIM No. 1600, which states: “To prove that the defendant is guilty of
this crime, the People must prove that:
[¶] 1. The defendant took property that was not her own;
[¶] 2. The property was taken from another person’s possession and immediate
presence; [¶] 3. The property was taken against that person’s will; [¶] 4. The defendant used force or fear
to take the property or to prevent the person from resisting; AND [¶] 5.
When the defendant used force or fear to take the property, she intended to
deprive the owner of it permanently.†[¶] The
defendant’s intent to take the property must have been formed before or during
the time she used force or fear. If the
defendant did not form this required intent until after using the force or
fear, then she did not commit robbery. [¶] A person takes something when
he or she gains possession of it and moves it some distance. The distance moved may be short. [¶] The property taken can be of any
value, however slight. [¶] Fear, as used here, means fear of injury to the
person himself or herself. [¶] Property is within a person’s immediate
presence if it is sufficiently within his or her physical control that he or
she could keep possession of it if not prevented by force or fear. [¶] An
act is done against a person’s will if that person does not consent to the
act. In order to consent, a person must
act freely and voluntarily and know the nature of the act.â€
Before
the jury was instructed, Smith’s trial counsel argued that CALCRIM No. 1600
would not provide the jury with sufficient “guidance on what force is necessary
to constitute a robbery rather than a grand theft, or larceny by
theft . . . .†Thus,
Smith requested that the court modify the instruction. Smith’s proffered version of CALCRIM No. 1600
italicized some of the standard language in the instruction and also added the
following statement: “The force required
for robbery must be more than just that quantum of force which is necessary to
accomplish the mere seizing of the property.â€
We
do not have a complete record of the discussion between the court and counsel
regarding this proposed modification.
However, the record does reflect that the trial court was reluctant to
modify the model language in the CALCRIM instruction, and that it advised counsel
that any supplemental pinpoint instruction would need to be a complete and
accurate statement of the law. The court
also asked counsel to confer about the matter and Smith’s trial counsel agreed
to discuss the matter with the prosecutor.
In
the end, the jury received the standard CALCRIM instruction we have quoted
above and a special pinpoint
instruction regarding the force element of the robbery charge which
stated: “The force required for robbery
must be more than the incidental touching necessary to take the property. For purposes of the crime of robbery, the
degree of force is immaterial.â€
Smith
contends that she was entitled to have the jury receive her proposed pinpoint
instruction because it addressed the primary legal issue in this case, i.e.,
the distinction between the force that constitutes a theft from a person and
the force required for a robbery.
“A
defendant is entitled to a pinpoint instruction, upon request, only when
appropriate. [Citation.] ‘Such instructions relate particular facts to
a legal issue in the case or “pinpoint†the crux of a defendant’s case, such as
mistaken identification or alibi. [Citation.]’ †(People
v. Gutierrez (2009) 45 Cal.4th 789, 824.)
However, even when requested, the “trial court need not give a pinpoint
instruction if it is argumentative [citation], merely duplicates other
instructions [citation], or is not supported by substantial evidence
[citation].†(People v. Bolden (2002) 29 Cal.4th 515, 558.) Furthermore, the trial court “may modify any
proposed instruction so long as the modifications are themselves correct and
pertinent to the issues.
[Citations.]†(
On
this record, it is not clear that Smith actually objected to the pinpoint
instruction that the trial court gave.
Indeed, Smith may have agreed to or even proposed some or part of that
language. What is clear is that the
language Smith initially proposed is duplicative of the pinpoint instruction
that the jury received. Thus, the trial
court did not err by rejecting Smith’s proposed instruction since it addressed
precisely the same issue covered by the pinpoint instruction that the trial
court gave.
In
her opening brief on appeal, Smith contends that the pinpoint instruction that
the trial court used was inappropriate because it was narrowly tailored to
address a pickpocket case whereas her proposed instruction was a “more general
and an appropriate statement of the law that would have guided the jury on
distinguishing a robbery from a theft based upon the amount of force
used . . . .†To
support this theory, Smith relies on People
v. Garcia (1996) 45 Cal.App.4th 1242 (Garcia).
In
Garcia, the defendant was convicted of second degree robbery based on
evidence that he entered a market, approached a cashier who was standing in
front of an open cash register, and “lightly pushed his left shoulder against
the cashier’s right shoulder, ‘like a tap.’ †(Garcia,
supra, 45 Cal.App.4th at p. 1244.)
The cashier felt the push or tap on her
the register because she was afraid the defendant might be armed. The defendant then took money from the
register and escaped. (
sponte instruct the jury on the lesser offense of theft. (Ibid.) The defendant’s theory was that the jury
could have found that his tap on the cashier’s shoulder was not sufficient
force to constitute a robbery. He reasoned
that “the force required for robbery is more than an incidental touching. A pickpocket touches the victim in extracting
a wallet from his pocket, but this does not make the pickpocket a robber.†(Id.
at p. 1246.)
The
Garcia court rejected the defendant’s
theory for the following reason: “The
force required for robbery is more than ‘just the quantum of force which is
necessary to accomplish the mere seizing of the property.’ [Citation.]
In the present case, however, the touching was more than incidental and
was not merely the force necessary to seize the money. The defendant did not simply brush against
the cashier as he grabbed for the money.
He intentionally pushed against her to move her out of the way so he
could reach into the register.†(
cashier went beyond the ‘quantum of force which [was] necessary’ to grab the
money out of the cash register.†(
The court also found that, although the tap may have been a rather
“polite†use of force, “for purposes of the crime of robbery, the degree of
force is immaterial. [Citation.]†(Ibid.)
In
her opening brief, Smith mischaracterizes Garcia,
supra, 45 Cal.App.4th 1242, as a
pickpocket case. Although she admits her
error in her reply brief, Smith reiterates that she was entitled to a jury
instruction regarding the “quantum of force†necessary to accomplish a robbery
as opposed to a theft. However,
substantive distinction between that concept and the “incidental touchingâ€
language used in the pinpoint instruction that the jury received. Garcia
also establishes that the trial court’s pinpoint instruction was a more
complete and therefore more accurate statement of the law than Smith’s proposed
language, because the court’s instruction also told the jury that, although it
needed to find that the type of force used was something other than incidental
touching, the “degree of force†was immaterial.
(Garcia, supra, 45 Cal.App.4th
1246.)
Smith
also relies on People v. Church
(1897) 116 Cal. 300 (Church) and
These cases address the trial
court’s sua sponte duty to instruct on the lesser included offense of theft, an
issue not relevant to this appeal because the jury in this case was instructed
on that lesser charge. Beyond that,
that Smith prefers. Apparently,
139, is the source of that language.
However, we find nothing in that case to support Smith’s contention that
this language means anything different than that the “force required for
robbery must be more than the incidental touching necessary to take the
property.†Since the court’s pinpoint
instruction covered that issue, Smith’s proposed language was redundant and the
court was not required to give it.
DISPOSITION
The
judgment is affirmed.
_________________________
Haerle,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
we state otherwise, all date references are to the 2011 calendar year.
Evidence Code section 240, subdivision (a)(4) (section 240(a)(4)) states that a
witness is unavailable when he or she is “[a]bsent from the hearing and the
court is unable to compel his or her attendance by its process.†Although this particular subdivision does not
contain an express “reasonable diligence†requirement, our supreme court has
held that even under section 240(a)(4), “unavailability in the constitutional
sense nonetheless requires a determination that the prosecution satisfied its
obligation of good faith†in attempting to obtain the presence of the
unavailable witness. (
