P. v. Chhom

 

 

 

 

 

 

 

 

 

Filed 9/23/13  P. v. Chhom CA2/7

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SEVEN

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   SOPHON CHHOM,               Defendant and Appellant.

B242707         (Los Angeles County       Super. Ct. No. GA083225)

 

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Darrell S. Mavis, Judge.  Affirmed.

            Roberta
Simon, 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, Senior Assistant Attorney General, Victoria B. Wilson and
Brendan Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.

 

_____________________

>

INTRODUCTION

 

            Defendant
Sophon Chhom appeals from the judgment entered after a jury found him guilty of
the attempted murder of Marcelio
Rodriguez, Jr., (Pen. Code,href="#_ftn1"
name="_ftnref1" title="">^>[1] §§ 187, subd. (a), 664; count 1),
assault by machine gun or assault weapon (§ 245, subd. (a)(3); count 2), and href="http://www.fearnotlaw.com/">assault with a semiautomatic firearm (§
245, subd. (b); count 3).href="#_ftn2"
name="_ftnref2" title="">^>[2]

            On count 1,
the jury found true the allegations that the attempted murder was willful,
deliberate, and premeditated (§ 664, subd. (a)) and that during the
commission of the offense Chhom personally used a firearm (§ 12022.53,
subd. (b)) and personally and intentionally discharged a firearm
(§ 12022.53, subd. (c)).  The jury
also found true the allegations that Chhom personally and intentionally
discharged a firearm causing great bodily injury or death (§ 12022.53,
subd. (d))href="#_ftn3" name="_ftnref3" title="">^>[3]  and personally inflicted great bodily injury
(§ 12022.7, subd. (a)), causing Rodriguez to become comatose
(§ 12022.7, subd. (b)).  As to
counts 2 and 3 the jury found true the allegations that Chhom personally used
an assault weapon (§ 12022.5, subd. (b)), personally and intentionally
used a firearm (§ 12022.5), and personally inflicted great bodily injury
(§ 12022.7, subd. (a)) that caused Rodriguez to become comatose
(§ 12022.7, subd. (b)).  The trial
court sentenced Chhom to state prison for life with the possibility of parole,
plus 25 years to life.

            Chhom
appeals, challenging the sufficiency of the evidence supporting the jury’s
determination that his attempted murder of Rodriguez was willful, premeditated,
and deliberate.  Chhom also argues that
the trial court erred by ruling that Rodriguez’s preliminary hearing testimony
was admissible at trial because Rodriguez was unavailable.  We affirm the judgment.

 

FACTUAL BACKGROUND

 

            On May 9,
2011 Chhom lived in a mobile home park in Monterey Park.  Rodriguez, also known as Junior, and Steven
Lackey also lived in the park.  The three
men knew each other.  Chhom’s neighbors
described him as “happy-go-lucky,” “polite and nice,” “quiet,” and
“friendly.”  He kept to himself, spending
most of his time alone and with his dogs.

            On the
morning of May 9 Lackey was lying in his bed watching television when he heard
Rodriguez shout, “What are you going to do, kill me?”  Lackey got out of bed to see what was
happening and heard a gunshot.  When he
arrived at his window he saw Chhom standing outside his door, holding a black
gun and looking down.  Lackey described
the gun as “gruesome looking” and as “some sort of automatic weapon.”  Lackey heard two more gunshots, after which
Chhom “walked away.”href="#_ftn4"
name="_ftnref4" title="">^>[4]  Lackey could not see the person on the
ground, but he assumed it was Rodriguez “because of the words and the sound of
his voice.”

            Once he
felt it was safe to go outside, Lackey opened his front door and saw Rodriguez
on the ground.  Lackey yelled for his
father to call 911 and get some towels and then tried to help Rodriguez, who
was “in bad shape.”  According to Lackey,
Rodriguez had been shot in the face and there was blood everywhere.  Rodriguez “was gurgling, trying to breathe.”href="#_ftn5" name="_ftnref5" title="">^>[5]  After the police contained Chhom in the back
of the mobile home park, the paramedics picked up Rodriguez who was “in a dire
situation” and transported him to the hospital.

            Monterey
Park Police Captain Eugene Harris arrived at the mobile home park and moved
Chhom into his patrol car in order to take him to the police station.  While seated in the front seat of Captain
Harris’ car, a woman asked Chhom through an open window, “You didn’t do it, did
you?”  Chhom responded, “I had to do
it.  I had to do it.”

            Detective
Joann Frescas from the Monterey Park Police Department obtained a warrant to
search Chhom’s trailer.  Executing the
warrant, officers found a .32 caliber semiautomatic handgun and a loaded TEC-9
nine-millimeter handgun.href="#_ftn6"
name="_ftnref6" title="">^>[6]  Lackey and Gudino later identified this TEC-9
as the weapon Chhom was carrying.

            Back at the
Monterey Park Police Department, Detective Frescas conducted a videotaped
interview of Chhom.  Chhom said that he
had moved to the United States from Cambodia in 1979 and had lived alone in the
trailer park since 1985.  During the
interview, Chhom spoke about the family he left behind and his war experiences
in Cambodia during the time of the Khmer Rouge and the Killing Fields.  He said “they tried to kill me, I tried to
kill them.”

            Chhom
stated that Rodriguez had knocked on his door that morning and asked to use his
cell phone.  Chhom told Rodriguez that he
was sorry but could not let him use his phone. 
Chhom closed his door and Rodriguez walked away upset.  Rodriguez returned shortly thereafter, kicked
Chhom’s door, said “fuck you,” walked to Lackey’s trailer, and then sat down
and smoked.

            Chhom said
Rodriguez’s kicking on his door “made me feel stronger.”  He further stated:  “My enemy, something go wrong, my thought go
stronger, go fight. . . . [Y]ou make trouble with me means that
you make war with me.”  Chhom considered
Rodriguez’s act of kicking his door and saying “fuck you” as a threat.  Chhom thought Rodriguez had a gun because he
came over to kick on Chhom’s door.  Chhom
said he had never argued with Rodriguez before “but this time, maybe he’s too
much drug, maybe too much dope in his head. 
I don’t know.  Maybe he’s crazy,
you know, and I cannot accept that.”href="#_ftn7" name="_ftnref7" title="">>^[7]  Chhom added: 
“I think maybe the guy bring gun to shoot me and I’m going to go shoot
him first, man.  I know how to
kill.”  Chhom stated that Rodriguez was
“a lot like, gang something label tattoo, all other thing, man.  I don’t like it.”

            Chhom
retrieved his semiautomatic TEC-9, which he kept under the pillow on his bed,
and walked over to Rodriguez.  When
Rodriguez saw the gun, he said, “you want to shoot me?”  Chhom told him “you cannot do that to me,”
and shot Rodriquez three times.  After
the first shot, Rodriguez fell to the ground. 
Chhom then shot him two more times because he did not “want him alive”
and wanted to kill him.  Chhom returned
to his trailer where he put his gun on the table and removed the ammunition.

            When
Detective Frescas asked Chhom if he wanted to scare Rodriguez, Chhom said,  “I cannot take my gun to scare someone and go
to jail for nothing.”  When the detective
asked Chhom whether he was “going there to shoot him and kill him,” Chhom
replied, “Yeah, of course.  I’m going to
kill, I’m going to kill, okay?”

            Deputy
Sheriff Edmund Anderson, a firearms identification expert, inspected and
test-fired the TEC-9 recovered from Chhom’s trailer.  The deputy described the weapon as a
semiautomatic pistol that qualified as an assault weapon under California
law.  Deputy Anderson confirmed that the
TEC-9 was operable and that the casings recovered from the crime scene had been
fired from it.

            At trial,
the court found that Rodriguez was unavailable and allowed the jury to hear his
testimony from the preliminary hearing.  Rodriguez testified at that
hearing that after the shooting he was in a coma for four days.  He described his injuries and the severe
medical problems he experienced as a result of the shots to his face, neck, and
chest.  At the time of the shooting on
May 9, 2011, Rodriguez weighed 185 pounds. 
At the time of the preliminary hearing on February 22, 2012, Rodriguez weighed only 89
pounds.  He had difficulty walking, he
was in constant pain as a result of nerve damage, he could only eat through a
G-tube in his stomach,
and his jaw had been wired since May or June 2011.

            Rodriguez
was unable to identify Chhom or anyone else as his shooter.  Although he remembered having to use a phone
on the day of the shooting, he did not remember seeing Chhom, asking to borrow
Chhom’s phone, or kicking Chhom’s door. 
He only remembered seeing a gun and a silhouette.

 

>DISCUSSION

 

            A.        Substantial
Evidence Supports the Jury’s Determination that the Attempted

                        Murder Was Willful, Deliberate,
and Premeditated

            Chhom does
not challenge the sufficiency of the evidence supporting the jury’s finding
that he attempted to murder Rodriguez. 
He challenges only the jury’s finding that the attempted murder was
willful, deliberate, and premeditated. 
There is, however, ample evidence to support the jury’s finding.

 

1.                 
Applicable Law and Standard of Review

            “‘Attempted
murder requires the specific intent to kill and the commission of a direct but
ineffectual act toward accomplishing the intended killing.  [Citation.] 
Attempted murder requires express malice, that is, the assailant either
desires the victim’s death, or knows to a substantial certainty that the
victim’s death will occur.’”  (>People v. Houston (2012) 54 Cal.4th 1186, 1217; accord, >People v. McCloud (2012) 211 Cal.App.4th
788, 796, 803.)

            “We do not distinguish between
attempted murder and completed first degree murder for purposes of determining
whether there is sufficient evidence of premeditation and deliberation.”  (People
v. Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8, disapproved on another
ground in People v. Mesa (2012) 54
Cal.4th 191, 199.)  “An
[attempted] killing is premeditated and deliberate if it occurred as the result
of reflection rather than unconsidered name="SDU_313">or
rash impulse.  [Citations.]  However, the requisite reflection need not
span a specific or extended period of time. 
Thoughts may follow each other with great rapidity, and cold, calculated
judgment may be arrived at quickly. 
[Citations.]”  (>People v. Nelson (2011) 51 Cal.4th 198,
213; accord, >People v. Watkins (2012) 55 Cal.4th 999,
1026; People v. Mendoza (2011) 52
Cal.4th 1056, 1069; see People v.
Thompson (2010) 49 Cal.4th 79, 114 [“‘“[p]remeditation and deliberation can
occur in a brief interval”’”]; People v.
Gonzalez (2012) 210 Cal.App.4th 875, 886 [“process of deliberation and
premeditation does not require any extended period of time”].)  “‘“Deliberation” refers to careful weighing
of considerations in forming a course of action; “premeditation” means thought
over in advance.’”  (People v. Solomon (2010) 49 Cal.4th 792, 812.)

            There are “‘“‘three categories of
evidence relevant to resolving the issue of premeditation and
deliberation:’”’”  (1) prior planning
activity, (2) motive, and (3) manner of killing.  (People
v. Houston, supra, 54 Cal.4th at
p. 1216; People v. Anderson (1968) 70
Cal.2d 15, 26-27; People v. Mejia
(2012) 211 Cal.App.4th 586, 605.)  These
categories “‘“are not exclusive, nor are they invariably determinative.”’”  (Houston,
supra, at p. 1216, quoting >People v. Lee (2011) 51 Cal.4th 620,
636; see People v. Gonzalez (2012) 54
Cal.4th 643, 663.)  They are “‘“‘“simply
intended to guide an appellate court’s assessment whether the evidence supports
an inference that the killing occurred as the result of preexisting reflection
rather than unconsidered or rash impulse.”’”’” 
(Houston, supra, at p. 1216; accord, People
v. Streeter (2012) 54 Cal.4th 205, 242.) 
The court may also consider other evidence that supports a finding of
premeditation and deliberation.  (See >People v. Prince (2007) 40 Cal.4th 1179,
1253; People v. Gonzalez, >supra, 210 Cal.App.4th at p. 887.)  “It also is not necessary that any of these
categories of evidence be accorded a particular weight [citation], and it is
not essential that there be evidence of each category to sustain a
conviction.”  (Gonzalez, supra, 210
Cal.App.4th at p. 887.)

            “In
determining the sufficiency of the evidence
proving premeditation and deliberation, we name="SR;16476">review the entire record name="SDU_278">in
the light most favorable to the People to determine whether it contains name="SR;16493">evidence that is reasonable, credible, and of solid value,
from which a rational trier of fact could find [premeditation and deliberation]
beyond a reasonable doubt. 
[Citation.]”  (>People v. Marks (2003) 31 Cal.4th 197,
230; see People v. Davis (2013) 57
Cal.4th 353, 357.)  We may only reverse
for insufficient evidence if it appears that under no hypothesis whatever is
there sufficient substantial evidence to support the jury’s finding.  (People
v. Zamudio (2008) 43 Cal.4th 327, 357; People
v. Mecano (2013) 214 Cal.App.4th 1061, 1068.)

 

                        2.         Analysis

            The record
contains substantial evidence of premeditation and deliberation.  Chhom viewed Rodriguez’s conduct in kicking
his door and saying “fuck you” as a threat. 
He believed that if “you make trouble with me means that you make war
with me” and that no one should “mess with Cambodia.”  It was with this mindset that Chhom retrieved
his TEC-9 semiautomatic pistol from under his pillow and set out to implement
his plan to shoot and kill Rodriguez.

            The manner
of the attempted murder also demonstrates premeditation and deliberation.  When Rodriguez saw that Chhom had a gun,
Rodriguez did not put up any struggle. 
He merely asked Chhom if he was going to shoot him.  Chhom then shot Rodriguez once at close
range.  While Rodriguez was on the
ground, Chhom shot him two more times and then calmly walked back to his
trailer.  Each of the rounds that Chhom
fired hit Rodriguez in the upper portion of his body, inflicting serious
injuries to his face, neck, chest and shoulders.  Chhom’s method of shooting was sufficiently
“‘particular and exacting’” to justify an inference that Chhom was acting in
accordance with a preconceived design.  (>People v. Caro (1988) 46 Cal.3d 1035,
1050; see People v. Mendoza, >supra, 52 Cal.4th at p. 1071 [“manner of
killing reflected stealth and precision”]; People
v. Halvorsen (2007) 42 Cal.4th 379, 422 [defendant shot victims in the head
or neck from within a few feet]; People
v. Marks, supra, 31 Cal.4th at p.
230 [shooting manifested all three factors relevant to the premeditation and
deliberation equation].)  Therefore, the
record contains substantial evidence from which a reasonable jury could
conclude beyond a reasonable doubt that Chhom’s attempted murder of Rodriguez
was willful, premeditated, and deliberate. 
(People v. Watkins, >supra, 55 Cal.4th at p. 1026.)

 

            B.        The
Trial Court Did Not Err by Admitting Rodriguez’s Preliminary

                        Hearing Testimony
Because of His Unavailability

            Chhom
argues that Rodriguez was not unavailable as a witness for Sixth Amendment
purposes and that the admission of his preliminary hearing testimony violated
Chhom’s constitutional right to
confrontation.  We conclude that the
trial court properly ruled that Rodriguez was unavailable and that his prior
testimony was admissible.

 

                        1.         Applicable Law and Standard of Review

            A
criminal defendant is constitutionally guaranteed the right to confront adverse
witnesses.  (U.S. Const., 6th and 14th
Amends.; Cal. Const., art. I, § 15; People
v. Fuiava (2012) 53 Cal.4th 622, 674; People
v. Carter (2005) 36 Cal.4th 1114, 1172; People
v. McCoy (2013) 215 Cal.App.4th 1510, 1527.)  This right “is not absolute, however, and may
‘in appropriate cases’ bow to other legitimate interests in the criminal trial
process.”  (Carter, supra, at p.
1172; accord, People v Hollinquest
(2010) 190 Cal.App.4th 1534, 1546.)  “An
exception to the confrontation requirement exists where the witness is
unavailable, has given testimony at a previous judicial proceeding against the
same defendant, and was subject to cross-examination by that defendant.”  (Carter, supra, at p.
1172; accord, >Fuiava, supra, at p. 674; People v.
Thomas (2011) 51 Cal.4th 449, 499.) 
Under this exception, “‘the preliminary hearing testimony of an
unavailable witness may be admitted at trial without violating a defendant’s
confrontation right.’”  (>People v. Roldan (2012) 205 Cal.App.4th
969, 979, quoting People v. Herrera
(2010) 49 Cal.4th 613, 621.) “[T]he prosecution has the burden of proof when it
comes to establishing the unavailability of its witnesses.”  (Roldan,
supra, at p. 984.)

            Under
federal law, an absent witness is unavailable in the constitutional sense if
the prosecution has made a good faith effort to secure the witness’ presence at
the trial.  (People v. Fuiava, supra,
53 Cal.4th at p. 675; People v. Herrera,
supra, 49 Cal.4th at p. 622; >People v. Roldan, supra, 205 Cal.App.4th at p. 979.) 
California law allows use of a witness’ prior testimony “only when the
unavailability of the witness and the reliability of the testimony are
established.”  (People v. Carter, supra,
36 Cal.4th at p. 1172; see Evid. Code, § 1291, subd. (a)(2).)  A witness is unavailable if the witness 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 court’s process.” 
(Evid. Code, § 240, subd. (a)(5).) 
“Reasonable diligence, often called ‘due diligence’ in case law,
‘“connotes persevering application, untiring efforts in good earnest, efforts
of a substantial character.”’”  (>People v. Cogswell (2010) 48 Cal.4th
467, 477, see Herrera, >supra, at p. 622.)  “‘Relevant considerations include “‘whether
the search was timely begun’” [citation], the importance of the witness’s
testimony [citation], and whether leads were competently explored
[citation].’  [Citation.]”  (Fuiava,
supra, at p. 675; accord, >Herrera, supra, at p. 622.)  “In this
regard, ‘California law and federal constitutional requirements are the
same . . . .’”  (>Herrera, supra, at p. 622, accord, Roldan,
supra, at p. 979.)href="#_ftn8" name="_ftnref8" title="">^[8]

            “We
review de novo the issue of whether the prosecution, in using the preliminary
hearing testimony of [the witness], satisfied the due diligence requirement in
attempting to produce him at trial, so as to justify an exception to
defendant’s constitutionally guaranteed right of confrontation at trial.”  (People
v. Martinez (2007) 154 Cal.App.4th 314, 323-324, citing >People v. Smith (2003) 30 Cal.4th 581,
610 and People v. Cromer (2001) 24
Cal.4th 889, 901.)  In so doing, “we
‘defer to the trial court’s determination of the historical facts of what the
prosecution did to locate an absent witness,’ [after which] we ‘independently
review whether those efforts amount to reasonable diligence sufficient to
sustain a finding of unavailability.’”  (>People v. Thomas, supra, 51 Cal.4th at p. 503, quoting People v. Bunyard (2009) 45 Cal.4th 836, 851; accord, >Smith, supra, at p. 610; People v.
Avila (2005) 131 Cal.App.4th 163, 169.)

 

                        2.         Analysis

            The
People’s efforts to secure Rodriguez’s testimony at Chhom’s trial commenced on
June 6, 2012, three weeks before trial began. 
The People were unsuccessful because Rodriguez had moved.  On June 12, however, an investigator located
Rodriguez and served him with a subpoena, although it was the wrong type of
subpoena.  On June 14 the investigator
served Rodriguez with a proper out-of-county subpoena and told him to contact
the district attorney’s office, which would make his travel arrangements.  The subpoena directed Rodriguez to appear in
court on June 18, 2012.  When Rodriguez
failed to contact the district attorney’s office, Deputy District Attorney Jose
Gonzalez asked the trial court to issue and hold a bench warrant.

            On June 20,
2012 Gonzalez spoke with Rodriguez who was cooperative and agreed to testify at
trial.  Gonzalez advised Rodriguez that a
witness coordinator would contact him and make the necessary travel
arrangements.  The witness coordinator
attempted to contact Rodriguez the next day but was unable to reach him until
June 25, at which time Rodriguez was upset. 
At the request of the coordinator, Gonzalez called Rodriguez and spoke
with him for an hour or an hour and a half. 
Rodriguez was “very upset” and said he did not want to come to Los
Angeles.  Gonzalez, who knew that the court had already issued
and held a bench warrant on June 18, warned Rodriguez that the court would
issue a warrant for his arrest if he did not comply.  Gonzalez told Rodriguez that he would prefer
to fly Rodriguez down to Los Angeles and put him up in a hotel than to have him
arrested.  At the end of the conversation
Rodriguez agreed to appear.  Gonzalez
assured Rodriguez that he would also pay for a caretaker to accompany him.  Rodriguez stated that he did not have a
caretaker but would ask his sister to accompany him.  Rodriguez said he would call back, but never
did.  Attempts to contact Rodriguez on
June 26 were unsuccessful.

            On
June 27, 2012 trial commenced.  Gonzalez
informed the trial court that Rodriguez had become uncooperative and asked the
court to lift the hold on the bench warrant “so that we can proceed with trying
to bring him to Los Angeles County.” 
Gonzalez asked “that bail be set at, certainly, a high enough amount
where he would not be cited out.  Because
if that would happen, I don’t know if we’re going to be getting him.  So I want him to be able to be brought
forth.”  The court issued “[t]he bench
warrant that was previously held” and set bail at $50,000.  Gonzalez advised the court that Rodriguez was
“very physically disabled” and questioned whether the investigators “have the
tools to transport someone who is disabled.” 
Gonzalez also noted that Rodriguez might need medical clearance before
law enforcement officials could transport him.

            On
July 2, 2012, after the People’s last witness had testified, Gonzalez advised
the trial court that he had not had any further contact with Rodriguez and that
given his fragile medical state, law enforcement was unwilling to transport him
and assume liability for doing so. 
Gonzalez asked the trial court to declare Rodriguez unavailable and to
admit his preliminary hearing testimony into evidence.  Counsel for Chhom objected, asserting Chhom’s
constitutional right to confront his adverse witnesses.

            The
trial court held a due diligence hearing at which Detective Frescas testified
that she had called Rodriguez’s sister Christine in Fresno on June 27 and asked
whether she and her brother were going to appear in court.  Christine told Detective Frescas that her
brother was adamant about not coming to court because he was physically unable
and did not want to appear.  Detective
Frescas asked Christine if she were 100 percent sure.  Christine said yes and that Rodriguez would
not be available.  The detective conveyed
this information to the district attorney’s office.

            Mark
Felix, an investigator from the district attorney’s office in Pasadena,
testified that he located Rodriguez in Fresno with the assistance of Shelley
Sweeten, an investigator from Fresno. 
Sweeten, who met with Rodriguez, informed Felix that Rodriguez appeared
“very ill,” was very thin, and appeared to weigh less than 100 pounds.  Rodriguez told Sweeten that he was on a
feeding tube and had difficulty walking. 
According to Felix, it initially appeared as if Rodriguez would
cooperate, but he changed his mind.  When
Felix spoke to Rodriguez and his sister, they made it clear that Rodriguez was
not physically well enough to travel from Fresno to Los Angeles.

            Gonzalez
told Felix that on June 27, 2012 the court had issued a bench warrant and set
bail at $50,000.  In an effort to secure
Rodriguez’s appearance at trial, Felix contacted his supervisor to find out
whether he could take Rodriquez into custody and, given Rodriguez’s medical
condition, whether it would be feasible to transport him.  Felix also
contacted the sheriff’s department, which apprised him that, in order to bring
Rodriguez to Los Angeles, Rodriguez “would have to be in custody,” there would
have to be “medical clearance from Fresno,” and “there would have to be an
order of the court specifically directing them to transport” Rodriguez from
Fresno to Los Angeles.  Felix learned,
however, that the district attorney’s office was not medically equipped to
provide for custodial transportation from Fresno to Los Angeles.

            In
light of Felix’s testimony, Gonzalez asked the court to issue an order
authorizing law enforcement to take Rodriguez into custody to evaluate whether
he was medically fit for transportation to Los Angeles.  Gonzalez argued this was necessary in order
to ascertain Rodriguez’s true physical condition because Rodriguez was not
responding or answering his phone. 
Gonzalez stressed “he’s not necessarily being cooperative” and it
therefore “goes beyond just the medical issue. 
It’s just he doesn’t want to be here, and he wants to completely
disregard this court’s order.”

            The
trial court was unsure whether Rodriguez was uncooperative or physically unable
to appear.  The court was not willing “to
sign an order compelling them to do something that would be against medical
recommendation.”  The prosecutor argued,
“we can’t get that medical recommendation if he’s not arrested and taken to a
facility” and “that if he’s not responding, then he’s just not willing to
participate, and he’s blatantly disregarding the court order.”  The prosecutor again asked the court to issue
an order to take Rodriguez into custody and to a medical facility to determine
whether he was fit to travel.  The trial
court declined to make such an order, stating, “I don’t want to sign an order
that would jeopardize somebody’s welfare.”

            The
prosecution then called Joyce Berry, the witness assistant in the district
attorney’s Pasadena office who worked with Gonzalez, to testify further on the
issue of due diligence.  Berry recounted
that she first made contact with Rodriguez on June 25, identified herself, and
told Rodriguez that he was needed in court. 
Rodriguez said he needed a caregiver to accompany him.  Berry asked Rodriguez if he had any family
members who could come to court with him, and Rodriguez said he would ask one
of his sisters and then get back to Berry. 
Rodriguez told Berry that he had health and money issues.

            After
learning that Rodriguez’s sister Christine would accompany Rodriguez, Berry
made the travel arrangements. 
Specifically, she arranged for Rodriguez and Christine to fly from
Fresno to Los Angeles on June 28 and to stay at the Sheraton Hotel in
Pasadena.  When Berry called Rodriguez on
June 26 to let him know about the travel arrangements, Rodriguez said he was
resting and asked Berry to call him later. 
Berry was never able to reach him later on June 26 or June 27, despite
her numerous attempts.  Berry was able to
reach Christine, who stated that she was aware of the situation and would be
traveling with Rodriguez.  Christine
explained that she could not speak with Berry at that time because Rodriguez
was receiving medical treatment. 
Christine wrote down Berry’s contact information and said she would call
her later.

            Christine
did not call back.  At 12:15 p.m. Berry
again called Christine, who said that she had not spoken with her brother.  Berry told Christine that the court was
prepared to issue a warrant for her brother’s arrest, but the district attorney
did not want that to become necessary. 
Berry asked Christine to talk to her brother and let him know he was
needed in court.  Christine said she
would call Berry back by 1:30 p.m., which she did not do.  At 3:30 p.m. Berry again called Christine,
who said her brother was not feeling well and was not going to appear in
court.  Christine said that Rodriguez did
not care if he was arrested.

            Rodriguez’s
father, Marcelino Rodriguez, Sr., also testified.  He had seen his son 15 days earlier in Fresno
for Father’s Day.  Rodriguez Sr. said his
son weighed 75 pounds, was in a wheelchair, had a feeding tube in his stomach,
and was unable to walk unassisted.  Rodriguez
Sr. did not think his son could travel on a plane, but might be able to travel
to Los Angeles by car.

            At
the conclusion of the hearing the trial court found that Rodriguez’s medical
condition did not prevent him from coming to court, but that Rodriguez was
nevertheless unavailable.  In analyzing
whether the People had demonstrated that they had exercised reasonable
diligence within the meaning of Evidence Code section 240, subdivision (a)(5),
the court relied on People v. Cogswell,
supra, 48 Cal.4th 467, in which the
Supreme Court held that the prosecution did not have to arrest the victim of a
crime and bring him into court in order to establish due diligence.href="#_ftn9" name="_ftnref9" title="">^>[9]  The trial court ruled that Rodriguez was
unavailable under Cogswell and
therefore admitted Rodriguez’s preliminary hearing testimony.

            Having independently
reviewed the evidence of the People’s efforts to bring Rodriguez to the trial, we
conclude that the People satisfied their burden of proving that they exercised
due diligence in attempting to secure Rodriguez’s presence and testimony at
trial.  Five different individuals
(Gonzalez, Frescas, Felix, Berry, and Sweeten) made contact with Rodriguez or
Christine in an effort to make sure Rodriguez came to court.  Rodriguez hampered these efforts by often not
answering his phone and not returning phone calls, vacillating between
cooperation and lack of cooperation, and ultimately refusing to come to court.

            The People
timely served Rodriguez with a subpoena directing him to appear on June 18, and
immediately asked the court to issue and hold a bench warrant when Rodriguez failed
to make contact by that date.  On the
first day of trial, when it became clear that Rodriguez would not come to court
voluntarily, Gonzalez asked the trial court to release the hold on the warrant
and to set bail in a substantial amount. 
The People sought an order to have Rodriguez arrested so that he could
be evaluated to determine whether he could travel to Los Angeles, but the trial
court was unwilling make such an order without more information about
Rodriguez’s health.  The trial court
ultimately determined that such an order was unnecessary under >People v. Cogswell, supra, 48 Cal.4th 467, and declared Rodriguez unavailable.

            We
agree with the trial court that under Cogswell
the People did not need to arrest Rodriguez in order for the trial court to
find that the People had acted with reasonable diligence.  Given Rodriguez’s fragile medical condition,
to have arrested Rodriguez would have been a drastic measure with potentially
adverse health consequences for Rodriguez. 
(See People v. Cogswell, >supra, 48 Cal.4th at pp. 477-478.)  The People did virtually all they could, and
their efforts were more than reasonable under the circumstances.

            In light of the People’s good faith
efforts and reasonable diligence in attempting to secure Rodriguez’s presence
at trial, we conclude that the People satisfied the requirements of
Evidence Code section 1291 and that Rodriguez was unavailable. 
Therefore, the admission of his preliminary hearing testimony did
not violate Chhom’s constitutional right
of confrontation.

 

DISPOSITION

 

            The
judgment is affirmed.

 

 

                                                                                    SEGAL,
J.href="#_ftn10" name="_ftnref10" title="">^*

 

 

We concur:

 

 

 

                        PERLUSS,
P. J.

 

 

 

                        WOODS,
J.