Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. NA080730, Charles D. Sheldon, Judge.
Gene David Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Kamala Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi, Beverly K. Falk, and Stacy B. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
COFFEE, J.
Nicholas MacKay appeals from conviction by jury for one count of theft (Pen. Code, § 484e, subd. (d)), two counts of identity theft (§ 530.5, subd. (a)), and one count of theft from an elder (§ 368, subd. (d)) arising from use of his grandparents' credit cards. Appellant admitted he had suffered a prior felony conviction. The court sentenced appellant to six years in state prison for violation of Penal Code section 368, subdivision (d) and stayed imposition of the remaining sentences pursuant to section 654.
Appellant also contends, and respondent concedes, that the abstract of judgment should be corrected because it does not reflect that the court stayed the sentences for the remaining counts pursuant to Penal Code section 654. Because we reverse the judgment, the issue is moot.
Appellant contends that the trial court violated his constitutional right to confront witnesses against him by admitting his grandparents' preliminary hearing testimony when they were not present at trial. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was raised by his grandparents, Richard and Nancy Mackay (also "the Mackays"). Just before appellant turned 21, the Mackays took a world cruise between January and April of 2008. While they were away, appellant charged about $14,000 to their Citibank business credit card. In May, after the Mackays returned, appellant became an additional cardholder on the Citibank account.
In May and June, appellant also charged about $4,000 to Richard's Discover card. In May, the primary address for the Discover account changed to appellant's.
When the Mackays returned from their cruise in April, appellant acknowledged that he had made the charges on the Citibank account, according to Richard's preliminary hearing testimony. Appellant made several payments while they were away. Richard tried to "straighten it out" with Citibank, but he was told they would not take the charges off of the Mackays' account unless they filed a police report. In July 2008, Richard reported the matter to the Long Beach police. In July, the Mackays also completed affidavits for Citibank and Discover in which they stated that they had not authorized appellant's transactions.
Appellant was initially charged with crimes based only on unauthorized use of the Citibank account. A preliminary hearing was conducted on October 29, 2008, in which Richard and Nancy Mackay testified about the Citibank charges. (People v. Mackay (Super. Ct. Los Angeles County, 2008, No. NA079342.)
Richard testified at the preliminary hearing that he did not give appellant permission to use the Citibank business credit card. Nancy was asked if appellant had permission to use the Citibank business card and responded, "No, not exactly that one." She explained that the card was for business only and that they tried to keep it separate for tax reasons. She said appellant did have permission to use their other credit cards, in particular for a trip, for concert tickets to celebrate his 21st birthday, for personal expenses, and for an "emergency or whatever." She said appellant told her that he put the Citibank card in his name and that he was paying it off. According to Nancy, Citibank said they had to make a police report in order not to be held financially responsible. She told Citibank that appellant was taking care of it. She said that she never spoke to the police; only Richard spoke to the police.
Investigating officers testified at the preliminary hearing that Nancy did speak to them and that she told them appellant should not have had her credit cards and no one had permission to use them.
After the preliminary hearing, the case was dismissed and re-filed to add a new charge based on unauthorized use of the Discover card. Appellant was also charged with theft of a friend's ATM card, charges of which he was ultimately acquitted.
A new preliminary hearing was conducted on January 22, 2009, but the Mackays were not called to testify. They had, by then, told the prosecutor that they objected to the prosecution and would not testify against appellant. Nancy said to the prosecutor, "Do you have a quota to want to prosecute my children?" Richard said, "we will not testify against our children." Richard had told the prosecutor that they would be going on another long cruise in January 2009.
Trial was set for April 2. The prosecutor served Richard and Nancy with trial subpoenas.
Three days before trial, on March 30, Richard called the prosecutor and said that he and Nancy intended to disobey the subpoenas. The prosecutor told Richard, "It's your duty to respond to a subpoena, " and he said, "Do what you have to do. I'm not coming to court. I'm leaving for a cruise." Richard did not tell the prosecutor when or where they would be going. The prosecutor later testified that she did not believe they were going on a cruise because they had already been on one that year.
Richard also called the trial judge on March 30. He told the judge that he and Nancy would not be appearing in court. The judge spoke with Richard, but did not immediately disclose this conversation to the parties.
On March 31, the prosecutor had her witness coordinator contact the Mackays, "and they both told my witness coordinator that they're not going to show up." She made no other effort to prevent their absence.
On the morning of April 1, during pretrial hearings, the prosecutor told the court about Richard's call. "Mr. Mackay called, and said he has no intention of showing up and responding to the subpoena. He acknowledged -- and I actually do have personal proof of service -- and he said he knows that he is supposed to be in court on April 2nd, and he's not coming." The prosecutor asked to "put it over" until the next day to "see if they will change their mind and that they're going to show up." The trial court did not mention its own conversation with the witness. It stated it would wait to see whether they appeared the following day. It instructed the prosecutor to be sure she had conducted "due diligence, " to establish that "they're really not coming or not available and you tried to find them."
Defense counsel argued that "[i]t's not due diligence to wait until tomorrow with that knowledge." The court responded, "we have been doing this for 26 years from this bench, sir. They're entitled to put their case together. [¶]... We'll just have to wait and see what happens tomorrow."
At another point, the court stated, "Don't know. People can say, 'I don't want to come in, ' and then the officers find them and they bring them into court and they're in jail until they testify. All sorts of things happen in cases. We really don't know. [¶]... [¶] People call and lie about whether they're on a world cruise. I don't know. I'm the judge. It's up to the [district attorney] to present whatever evidence she is able to present. I'm just here to make rulings."
The prosecutor told the court that her case would be stronger if the Mackays did not appear. "Because they have continuously, since the day... they called the police and gave the strong statements that they had [given] no permission and they want to go forward with all of that. [¶] They have continuously been on a downslide as to the strength of their statement...." She said that at the preliminary hearing, "they were adamant that we -- this is [a] vindictive prosecution and so forth. [¶] So in my belief, if they actually come and take the stand, they're going to say '[e]verybody had permission, ' and all of that. So if they don't show up our case is stronger."
The Mackays actually left on their cruise on April 1. The prosecutor made no effort to secure or locate the Mackays that day, except to have someone drive by their house, where it appeared that no one was home. The prosecutor later explained, "we have not made any effort because we don't have a warrant for their arrest. So if we see them on the street, we just waive bye, bye."
On April 2, the Mackays did not appear for trial. The prosecutor sought to introduce their preliminary hearing testimony. Defense counsel argued that the prosecution had not been diligent in securing their presence, because it had advance notice that the witnesses would disobey the subpoenas but took no action to prevent them from doing so. He argued that, in gang cases, reluctant material witnesses are sometimes put in custody to prevent them from becoming unavailable. The court asked whether the prosecutor had inquired about "what cruise they're on so you can check if they're on the passenger list." She responded, "I did not ask." The court said, "Something to think about looking into... I don't know. It's not my job." The court issued body attachments for both witnesses.
Between April 4 and April 7, the prosecution unsuccessfully attempted to serve the attachments by visiting the Mackays' house and by speaking to a neighbor. No other efforts were made. Officers did not try to contact cruise lines or family members and did not try to track the Mackays through their credit card use. The Mackays' mail was being picked up, but officers did not attempt to find out by whom.
Over defense objection, the court allowed the prosecution to read Richard's and Nancy's preliminary hearing testimony to the jury. The court determined that the Mackays were unavailable and that the prosecutor had exercised reasonable diligence. It found, "It was not a fraud. It was not just going through the motions. That they made a diligent effort." The court also found the prosecutor was not "doing gamesmanship."
Lack of consent was the only contested issue at trial. The court admitted, over defense objection, the preliminary hearing testimony of officers that Nancy said appellant should not have had her credit cards. Over defense objection, the court permitted bank representatives to read aloud the notes of other bank employees concerning conversations with the Mackays about authority to use the cards. The court also admitted, over defense objection, the affidavits prepared by Richard and Nancy in which they stated that the Citibank and Discover transactions were not authorized.
During deliberations, the jury requested read-back of the preliminary hearing testimony of Richard and Nancy. The request was granted.
On April 15, while the jury was deliberating, Richard and Nancy entered the courtroom. They had come directly from their cruise ship. The court asked counsel, "The question is what should the court do? I had heard indirectly that they claim to have been on a cruise during the time when this trial was going on.... [¶] [¶]... Do you want them to tell me why they weren't here?"
Richard was sworn as a witness regarding contempt. He said to the court, "I called the district attorney, and I called you and talked to you personally and said we were booked on a cruise." The court interrupted and admonished Richard for the call, saying it was "so out of line" and that the court "didn't know what to do." Richard testified that they had paid for the April cruise in January, and that they had told a judge in the prior case that they would be away for cruises from January 13 through 28 and again from April 1 through 15. According to Richard, the prior judge had said that anything that came up would have to be done between those dates and they should not be penalized. The court decided not to take any action for the failure to appear and recalled the bench warrants.
The court said, "By the way, I want to interrupt you. That is so out of line. I didn't know what to do. I took your phone call -- I want to make a record here. [¶] Remember, I said, 'Sir, I can't tell you anything more, ' in effect. 'You were subpoenaed and you should show up.' And I said, 'I don't want to have any more conversation.' [¶] Do you agree?" Richard responded, "Yes. [¶]... [¶] Something to that order."
The jury returned a verdict of guilty on the four counts that arose from use of the Mackays' credit cards.
The jury acquitted appellant of two other counts that were based on possession of a friend's ATM card, and it acquitted his co-defendant fiancé of all charges.
DISCUSSION
Admissibility of Former Testimony of Complaining Witnesses
Appellant contends that his confrontation rights were violated because the prosecution's efforts to secure the Mackays presence for trial were not sufficiently diligent to support a court finding that they were unavailable. We agree. The prosecutor made no effort to prevent the Mackays absence after learning, two days before their departure, that they intended to disobey the subpoena. Reasonable efforts to retain them as material witnesses would not have been futile.
A defendant has a constitutional right to confront trial witnesses against him (U.S. Const., 6th Amend.; Cal.Const., art. I § 15), but the right is not absolute. (People v. Valencia (2008) 43 Cal.4th 268, 291.) Use of a witnesses' former testimony at trial is constitutionally permissible if the witness is unavailable for trial and the defendant had a prior opportunity to cross-examine. (Ibid.) In California, these requirements are codified in the Evidence Code at sections 1291 and 240. (People v. Herrera (2010) 49 Cal.4th 613, 621, 622.) Unavailability is essential to admissibility. A witness is "unavailable" if the prosecution made a good faith effort to obtain their presence at trial, but was unable to do so. (Crawford v. Washington (2004) 541 U.S. 36, 54-55; People v. Smith (2003) 30 Cal.4th 581, 609; Herrera, at p. 622; Barber v. Page (1968) 390 U.S. 719, 722, 724-725.)
We review the trial court's factual findings regarding unavailability under the substantial evidence standard. (People v. Herrera, supra, 49 Cal.4th at p. 628.) We independently review whether the facts demonstrate due diligence sufficient to justify an exception to the defendant's right to confrontation. (People v. Cromer (2001) 24 Cal.4th 889, 901.) We will defer to the trial court's factual findings that the prosecutor did not engage in fraud or gamesmanship, but we review de novo the trial court's conclusion that the prosecutor acted with due diligence.
The prosecution had the burden of demonstrating that it "exercised reasonable diligence but [was] unable to procure [the witnesses'] attendance by the court's process." (Evid. Code, § 240, subd. (a)(5).) "Reasonable" diligence is determined under all of the circumstances as they appeared at the time. (People v. Herrera, supra, 49 Cal.4th at p. 623; People v. Louis (1986) 42 Cal.3d 969, 991.) Factors to be considered when determining diligence include the "timeliness of the search, the importance of the proffered testimony, and whether leads of the witness's possible location were competently explored." (People v. Wilson (2005) 36 Cal.4th 309, 341; People v. Cromer, supra, 24 Cal.4th at p. 904.)
A prosecutor offering former testimony has a twofold duty of diligence: (1) the duty to make an absent witness present, and (2) the "[l]ess obvious" but "no less important" duty to "'use reasonable means to prevent a present witness from becoming absent.'" (People v. Louis, supra, 42 Cal.3d at p. 991.) In order to prevent absence, "a material witness may be incarcerated, subject to certain conditions, to assure his attendance at a hearing or trial." (Id. at p. 993, fn. 8, citing Pen. Code, §§ 879, 881 & 882.)
The prosecution contends that it exercised reasonable diligence when it served the witnesses with trial subpoenas, and that it was entitled to wait and see whether they obeyed, notwithstanding notice of their intent to disobey. Service of a trial subpoena will generally constitute "exercise of due diligence" if there is no reason to believe that the witness will disobey the subpoena. (People v. Perez (1989) 207 Cal.App.3d 431, 437 [in which mail service of subpoena on witness met burden of exercising due diligence where witness acknowledged receipt and promised to appear, but then went on vacation].) There is no duty to take measures to prevent absence where the witness has been served with a trial subpoena and there is no reason to believe they are a flight risk. (People v. Bunyard (2009) 45 Cal.4th 836, 852-854 [in which witness maintained weekly contact]; People v. Wise (1994) 25 Cal.App.4th 339, 344 [in which the record did "not indicate any reason for the prosecution to believe [the citizen-victim] would disappear"].)
But here, the prosecution had reason to believe that Richard and Nancy were flight risks. They told the prosecutor that they were leaving. Where a witness is a known flight risk, reasonable diligence may require the prosecutor to prevent their absence either by keeping them under surveillance or by invoking the material witness provisions of the Penal Code. (People v. Louis, supra, 42 Cal.3d at p. 991.) In Louis, a death penalty case, the prosecution did not exercise due diligence to prevent a crucial and impeachable witness from becoming unavailable. After the preliminary hearing, the prosecution had agreed that the witness could be released on his own recognizance, knowing that there was "a very real possibility that the man would boogie." (Id. at p. 992.) It did so to obtain his cooperative testimony in another case. The California Supreme Court noted that the prosecutor could have obtained the address where the witness planned to stay and "could then have arranged that he be kept under surveillance during that period of time." (Ibid.) It could also have invoked the material witness provisions of Penal Code sections 879, 881 and 882. (Louis, at p. 993.) The court concluded that the failure to take these measures suggested indifference to the presence of the witnesses on the part of the prosecutor. Under these circumstances, admission of his former testimony was reversible error.
Respondent argues that Louis is inapposite because the Mackays were otherwise law-abiding citizens and the prosecutor said she did not believe that they were going on a cruise. But the Mackays unequivocally notified the prosecutor of their intent to disobey the subpoenas and go on a cruise. Moreover, the prosecutor said she was making no effort to prevent their departure before trial and that her case would be stronger without them. Under these circumstances, diligence required the prosecution to put the witnesses under surveillance, to invoke the material witness provisions, or to make other reasonable efforts to prevent their absence.
Because the prosecution did not exercise reasonable diligence to procure the Mackays' attendance by the court's process, admission of the preliminary hearing testimony of the Mackays violated appellant's constitutional right to confront witnesses against him. Where a defendant's right to confrontation is violated, we apply the test for reversible error set forth in Chapman v. California (1967) 386 U.S. 18, allowing the judgment to stand only if the violation is harmless beyond a reasonable doubt. (People v. Louis, supra, 42 Cal.3d 969, 993.) We must determine whether there is a reasonable possibility that the evidence might have contributed to the conviction. (Chapman, at p. 23.) The burden is on the beneficiary of the error to prove there was no injury. (Id. at p. 24)
Richard and Nancy's preliminary hearing testimony was crucial to prove lack of consent. Lack of consent was an essential element of each crime of which appellant was convicted. (Pen. Code, §§ 484e, subd. (d), 530.5, subd. (a)), 368, subd. (d).) Richard and Nancy each stated in their preliminary hearing testimony that appellant did not have permission to use the Citibank card. The only other evidence of lack of consent was Richard and Nancy's out of court statements to law enforcement and bank officials which, as we determine below, were largely inadmissible. The remaining fact that the Mackays were on a cruise during some of the transactions did not necessarily undermine the defense theory that appellant had their permission to use their cards while they were away. Because there is a reasonable possibility that the evidence contributed to the conviction, we must reverse.
Respondent points to other evidence of lack of consent to demonstrate that the error was harmless beyond a reasonable doubt. We first consider statements Nancy made to law enforcement officers.
The trial court admitted the preliminary hearing testimony of Detective Holdredge that Nancy told her appellant did not have permission to use certain credit cards. The court also allowed Detective Holdredge and Officer Lovo to testify at trial that Nancy told them appellant should not have had the cards and that she wanted to prosecute. The defense timely objected to this evidence on hearsay grounds.
These out of court statements were admitted to prove the truth of the matter asserted: that appellant did not have Nancy's permission to use the cards. They were therefore inadmissible hearsay unless they fell within an exception to the hearsay rule.
Respondent contends that the statements were admissible to impeach Nancy's preliminary hearing testimony that she never spoke to the police and that appellant had permission to use some of her cards. (Evid. Code, § 1235.) This argument fails because Nancy's preliminary hearing testimony was itself inadmissible, as discussed above. Alternatively, respondent contends that the statements were admissible under Evidence Code section 1294, which allows evidence of prior inconsistent statements of an unavailable witness in certain circumstances. But Nancy was not unavailable.
The testimony was inadmissible hearsay and its admission was erroneous. We therefore reject the contention that this evidence rendered admission of the Mackays' preliminary hearing testimony harmless beyond a reasonable doubt.
We next consider statements that Richard and Nancy made to bank employees. The trial court admitted affidavits from Citibank's and Discover's files in which Richard and Nancy attested to fraud. The trial court also allowed a bank employee to read aloud notes that had been made by another bank employee regarding telephone conversations with Richard and Nancy. The defense timely objected on hearsay grounds and, to the extent the evidence was offered to impeach Richard's and Nancy's preliminary hearing testimony, on the grounds that they had not previously been confronted with the evidence. (Evid. Code, § 770.) The objections were meritorious.
These statements were admitted to prove the truth of the matter asserted: that the Mackeys considered appellant's use of their card to be fraudulent and without their permission. The statements were therefore inadmissible unless they fell within an exception to the hearsay rule.
At trial, the court admitted the statements on, "whatever theory it is admissible on, " and allowed the testimony "for whatever the jury takes it." The statements were not admissible to impeach the preliminary hearing testimony under Evidence Code section 1235 because the witnesses were not confronted with any Discover Card evidence at the preliminary hearing (Evid. Code, § 770) and, more fundamentally, because their preliminary hearing testimony was not admissible.
Respondent contends that the statements were independently admissible as business records pursuant to Evidence Code section 1271. We disagree. The Mackays' affidavits were not prepared in the regular course of business. (Id., at subd. (a).) Neither Nancy nor Richard was a bank employee. The witnesses from Citibank and Discover testified that the affidavits are sent out blank and are completed and returned by the card member. The telephone notes may have been prepared in the ordinary course of business, but that foundation was never laid. The testifying witness was a stranger to the conversations and did not testify to the mode of preparation of the notes. Even if a proper foundation for these notes had been laid, their admission would not eliminate the reasonable possibility that the preliminary hearing testimony contributed to appellant's conviction.
DISPOSITION
The judgment is reversed.
We concur: GILBERT, P.J., PERREN, J.