Opinion
NOT TO BE PUBLISHED
Superior Court No. VA090186 County of Los Angeles, Philip H. Hickock, Judge
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Appellant Armando Manuel Martinez was convicted by jury of first degree murder (Pen. Code, § 189/187, subd. (a); count 1) and deliberate and premeditated attempted murder (§§ 664/187, subd. (a); count 2). The jury found true the allegations as to both counts that appellant personally used a firearm (§ 12022.53, subd. (b)); personally and intentionally discharged a firearm (id. at subd. (c)); and personally and intentionally discharged a firearm which proximately caused great bodily injury or death (id. at subd. (d)). As to count 2, the jury found true the allegation that appellant personally inflicted great bodily injury (§ 12022.7, subd. (a)).
All further statutory references are to the Penal Code unless otherwise stated.
The trial court denied a defense motion to reduce the offense from murder to manslaughter. A new trial motion was also denied. The trial court imposed a sentence of 25 years to life on count 1, plus 25 years to life for the firearm enhancement. On count 2, the court sentenced appellant to life with the possibility of parole, plus 25 years to life for the firearm enhancement. It imposed and stayed the great bodily injury enhancement. Appellant argues that the court erred by admitting the preliminary hearing testimony of a prosecution witness at trial. We affirm.
FACTS
Appellant and Irma Martinez had been married for 15 years and were in the process of getting a divorce. Irma began a romantic relationship with Eric Hernandez. In June 2005, Irma left appellant and moved in with her father. Appellant could not tolerate being in the family home without Irma and moved in with a friend.
On July 16, 2005, at approximately 10:30 p.m., Hernandez was visiting Irma at her father's house at 9371 Walnut Avenue in Pico Rivera. They were talking in the driveway. Irma saw appellant walk up the driveway and said, "'Armando is coming.'" Hernandez said, "'Well, let him come.'" Appellant approached and asked Irma, "'What is that bastard doing here?'"
Appellant threatened to kill Hernandez, then pulled a gun from his waistband and shot Hernandez in the right shoulder. Appellant aimed the gun again at Hernandez, and Irma said, "'Armando, no.'" Appellant fired at Irma and killed her with a single gunshot to the head. His gun jammed and he fled. Hernandez was the sole witness to the shooting.
The foregoing facts were elicited primarily from his preliminary hearing testimony.
At approximately 11:00 p.m., appellant called his adult daughter, Irene, and said, "'I did it. I took care of your mom and the little guy.'" Irene was busy and told appellant she would call him back. Appellant said, "'I love you,'" something he ordinarily did not say to her. After appellant hung up, Irene thought about the conversation and called him back. She asked him whether he had killed her mother. Appellant told her, "'I took care of your mother and the little guy. I'm going to go take care of myself now. I love you. Take care of your sisters[.]'"
Appellant hung up and Irene tried to call him back, but he did not answer. She went to her grandfather's house and found that her mother was dead. Irene called her brother, Alexander. She told him to call appellant and that something was wrong. Alexander called appellant, who told him that Irma and someone else were "down."
At approximately 11:21 p.m., Los Angeles County Sheriff's deputies responded to an assault with a deadly weapon call at 9371 Walnut Avenue. One deputy went into the backyard and found Irma on the ground. Paramedics arrived and attempted to treat her. Hernandez was taken to the hospital and treated for a gunshot wound to his right shoulder. Two shell casings and two live .45 caliber rounds were found at the scene. No fingerprints were found on the bullets or casings.
Detectives Steven Katz and Richard Tomlin were the investigators on the case. At 1:00 a.m., Tomlin arrived at the crime scene and did a walk-through. A criminal broadcast was sent out via the sheriff's radio indicating that appellant was wanted for a homicide. Katz directed the sheriff's deputies to contact the United States border crossing location to flag appellant's vehicle, should he try to leave the country.
On the morning following the offense, Katz spoke to Alexander, who signed an affidavit, which read, "My father was staying at my home during the first part of the separation from my mother. While visiting my home[,] approximately one month before the shooting of my mother and her boyfriend, my father asked me if I [knew] where he could get a gun. I understood he wanted a gun to shoot my mother. I told him it was my mother he was talking about, and I told him no."
Appellant had previously threatened to kill Irma. In 1999, he had pointed a gun at her and said she could not leave him. He told her that, if she tried, it was legal for him to take her to Tijuana and kill her and nobody would find him. One or two months prior to the shooting, appellant asked Alexander where he could get a gun. During this time, Irma had applied for a restraining order and a hearing had been set for July 21, 2005.
Appellant was arrested in Mexico. On May 19, 2006, he was taken into custody in the United States.
DISCUSSION
Due Diligence Hearing
After Hernandez was released from the hospital, following the shooting, detective Katz found him living in a field in Pico Rivera. Katz informed Hernandez that he would be needed to testify as a witness at the preliminary hearing. Hernandez indicated that he had been attacked and believed it might have been motivated by the shooting. Katz housed Hernandez at a hotel for his protection and to ensure his appearance at the preliminary hearing.
Hernandez was arrested for a drug violation in August 2006, prior to the August 31 preliminary hearing. It is unclear from the record whether Hernandez was in custody at the time of the hearing. On September 7, Hernandez was convicted of a misdemeanor offense and taken into local custody. He was transferred to federal custody by the Immigration and Naturalization Service (INS).
Before Hernandez left local custody, Katz learned that the INS had put an immigration hold on him. Katz visited Hernandez at the federal facility and spoke to two agents responsible for housing and told them that Hernandez was a key prosecution witness and was needed for trial. The agents told Katz that they could not delay the deportation process because it was already underway.
Katz gave Hernandez his business card and told Hernandez to contact him if he obtained any information that he was going to be deported. Katz did not attempt to get a court order or have a warrant issued to declare Hernandez a material witness. In late 2006, Hernandez was deported to Mexico. The record is unclear as to the month he was deported. The federal detention agents gave Katz an address for Hernandez in Mexico, which turned out to be false.
A due diligence hearing was scheduled. Prior to the hearing, the district attorney's investigator conducted an extensive local search for Hernandez, in case he had returned to Los Angeles after his deportation. They did not locate him. At the hearing, the defense argued that the prosecutor should have moved in state court to place a hold on Hernandez as a material witness or made a request in federal court or with the INS to keep him in California until after he testified.
The trial court indicated that Hernandez was arrested in August 2006 on drug charges and deported in September. The court concluded that the prosecution had attempted to put an "informal hold" on Hernandez by talking to the INS agents, then learning that there was nothing they could do to halt the deportation process. The trial court found that the prosecution exercised due diligence in attempting to secure Hernandez's presence and that he was unavailable as a witness. Accordingly, it admitted into evidence his testimony from the preliminary hearing.
Appellant contends that the preliminary hearing testimony of Hernandez should have been excluded because the prosecution did not make diligent efforts to secure his presence at trial. He argues that, had the jury heard Hernandez's live testimony, it might have rejected the theory that he acted with deliberation and malice and found instead that he acted in the heat of passion. As a result, it would have convicted him of a lesser offense. Appellant's argument is without merit.
Evidence Code section 1291, subdivision (a)(2), establishes a hearsay exception for prior sworn testimony when the declarant is unavailable to testify. A witness is unavailable when he or she 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." (Id. at § 240, subd. (a)(5).)
The confrontation clause requires that the prosecution "show it made a reasonable, good faith effort to obtain the attendance of the witness at trial." (People v. Sandoval (2001) 87 Cal.App.4th 1425, 1428.) We independently review the trial court's determination of due diligence. (People v. Cromer (2001) 24 Cal.4th 889, 901.) The determination of due diligence is dependent on the facts of the individual case and includes such factors as the proponent's efforts to secure the attendance of the witness, the likelihood that the witness would willingly appear, whether the search for the missing witness was timely begun, and whether the witness would have been produced with reasonable diligence. (People v. Sanders (1995) 11 Cal.4th 475, 523.)
In People v. Sandoval, the prosecution knew the address of a witness who lived in Mexico and was willing to return to the United States to testify if he could do so legally. Despite the witness's cooperation, the prosecution refused to provide $100 to allow the witness to travel to the consulate in Mexico City and obtain a visa. The court concluded that reasonable efforts had not been made to secure the witness's attendance. (People v. Sandoval, supra, 87 Cal.App.4th at p. 1432.)
In the case before us, the prosecution was not required to procure a witness from a foreign country. Hernandez was on United States soil and in federal custody. Katz was aware that Hernandez was going to be deported. Yet, other than speaking to two investigators and giving Hernandez his business card, he made no effort to obtain permission from the INS to allow Hernandez to testify at trial. No evidence was presented that Katz took any steps to delay the deportation. Katz failed to exercise due diligence, thus, the admission of Hernandez's preliminary hearing testimony violated appellant's constitutional right of confrontation. (People v. Sandoval, supra, 87 Cal.App.4th at pp. 1443-1444.)
Harmless Error
In the face of the highly incriminating evidence against appellant, any error in admitting Hernandez's preliminary hearing testimony was harmless beyond a reasonable doubt. (Lilly v. Virginia (1999) 527 U.S. 116, 139-140 [applying standard of Chapman v. California (1967) 386 U.S. 18, 24, to confrontation clause violation that arose from admission of hearsay evidence].) The evidence against appellant was overwhelming. He had previously threatened to kill Irma and held a gun on her. After the shooting, he told Irene that he "'took care of [her] mother and the little guy.'" He told Alexander that Irma and someone else were "down." Alexander signed an affidavit stating that appellant told him that he wanted to obtain a gun in order to kill Irma. Any error was harmless. Reversal is not required.
The judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.