Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA070679. Rafael A. Ongkeko, Judge. Affirmed.
Linn Davis for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II, Joseph P. Lee and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, Acting P. J.
Defendant and appellant Mark Anthony Pacheco appeals from a judgment of conviction following a jury trial. He challenges only his conviction on count 3, possession of ammunition in violation of Penal Code section 12316, subdivision (b)(1). He contends that the trial court prejudicially erred in admitting an officer’s preliminary hearing testimony after concluding the officer was unavailable, arguing that the prosecution failed to establish it exercised due diligence in attempting to secure his attendance at trial. We find no merit to this contention and affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant’s mother, Cynthia Pacheco, and Daniel Ortiz had lived together for approximately 17 years. In August 2007, they lived at 421 East Live Oak in apartment No. 114. Though appellant had lived with his mother and Ortiz for several years, he did not reside with them in August 2007. On August 17, 2007, Pacheco and Ortiz left their apartment at approximately 6:45 p.m.
That same evening, Donna Driscoll was in apartment No. 211 in the same complex when she heard a noise and looked outside. She saw a person’s leg kicking toward the door of apartment No. 114 below her, and immediately called the manager of the apartment complex, Ronald Wayne Hansen. While Hansen was on his way back to the complex that evening, his wife also called him, telling him that she had seen appellant in the complex and that he looked angry. Hansen was concerned because appellant had kicked in his mother’s apartment door once before.
When Hansen arrived at the complex, he observed that a wooden gate providing entry to the complex had been broken down. When he arrived at apartment No. 114, he saw that there was a hole in the door and that the door was wide open with appellant sitting in the apartment’s living room, eating and drinking. When Hansen asked appellant why he had kicked in the door, appellant merely asked Hansen what was going on. After the two spoke for a while, appellant picked up a gun that had been on the couch next to him, pointed it at Hansen and told Hansen he could either shoot him or let him go. Though Hansen was afraid, he did not believe that appellant was going to shoot him. The two spoke for a few more minutes until Hansen left the apartment and called the police. During the two years in which Hansen had known appellant, he noticed that appellant had become increasingly angry and his behavior had become increasingly odd.
Ortiz received a call from police officers the same evening while on his way home. A few months earlier, in February 2007, Ortiz had secured a restraining order against appellant after appellant had punched him and said he was going to kill him. Later, in July 2007, appellant tried to enter his mother and Ortiz’s apartment and kicked in the door when his mother would not let him in. Ortiz, too, had noticed a negative change in appellant’s behavior over time.
Responding to a radio call that a man who was possibly armed with a handgun had broken into an apartment, City of San Gabriel Police Officers Dane Woolwine and Robert Barada arrived at apartment No. 114 at approximately 7:50 p.m. They observed appellant inside the apartment in the process of changing a compact disc. Officer Barada directed appellant to put his hands in the air. Appellant complied and immediately looked over to the couch a few feet away, where Officer Barada saw a nine-millimeter semiautomatic gun. Officers collected both the gun and four rounds of ammunition inside the magazine.
Cynthia Pacheco testified on appellant’s behalf that she had permitted appellant to be at her apartment when she was at home, notwithstanding the restraining order. Each day during the week preceding August 17, 2008, she took food to appellant at a nearby hotel where he was staying. She, too, had noticed appellant’s behavior change; for several months he had been telling her that the television and billboards were talking to him, and the week before the incident he was alternately sad and angry.
A three-count information filed by the Los Angeles County District Attorney charged appellant with first degree residential burglary in violation of section 459 (count 1), assault with a semiautomatic weapon in violation of section 245, subdivision (b) (count 2) and possession of ammunition in violation of section 12316, subdivision (b)(1) (count 3). As to counts 1 and 2, the information alleged that appellant personally used a firearm (§§ 667.5, 1203.06 & 12022.5). It also alleged that appellant had suffered a prior serious felony or violent felony or juvenile adjudication (§§ 667, subds. (a)(1) & (b)-(i), 1170.12, subd. (a)). Appellant pleaded not guilty and denied the special allegations.
The trial court bifurcated trial on the prior convictions, and appellant admitted the truth of a prior 1990 burglary conviction as to count 3. A jury trial commenced on March 26, 2008. On April 2, 2008, the jury returned a verdict of guilty on counts 2 and 3, and found true the special allegation that appellant personally used a firearm in connection with count 2. The jury was unable to reach a verdict as to count 1 and the trial court ultimately dismissed that count.
At sentencing, the trial court found true a 1993 prior conviction and denied appellant’s request to strike the prior pursuant to section 1385. The trial court sentenced appellant to state prison for a total term of 21 years, comprised of the midterm of 12 years on count 2, plus 9 years for the prior convictions. Appellant received a concurrent sentence of the midterm of two years on count 3. Appellant was ordered to pay specified fines and fees and was credited with 325 days in custody.
This appeal followed.
DISCUSSION
Appellant challenges only his conviction on count 3 for possession of ammunition. Officer Barada’s preliminary hearing testimony constituted the evidence supporting that count. Appellant contends that the trial court erred in finding that the prosecution exercised due diligence in endeavoring to secure Officer Barada’s attendance at trial and in consequently finding that Officer Barada was unavailable. Where, as here, the facts are undisputed, we review de novo the trial court’s determination of unavailability. (People v. Smith (2003) 30 Cal.4th 581, 610; People v. Cromer (2001) 24 Cal.4th 889, 900–901 (Cromer).) Finding no error, we affirm the trial court’s ruling.
I. Facts Relating to Officer Barada’s Unavailability.
At the December 26, 2007 preliminary hearing, Officer Barada testified that when he arrested appellant, he also collected a semiautomatic handgun which was on the couch near appellant and which contained four rounds of ammunition inside the magazine. The defense had no questions for Officer Barada on cross-examination.
On March 26, 2007, after testimony was completed on the first day of trial, the prosecution indicated that it had not been successful in reaching Officer Barada and submitted to the court clerk the subpoena’s proof of service. The subpoena had been served on February 12, 2008, directing Officer Barada to be on call for a trial date of March 14, 2008, which was the zero of 10 date for trial. The prosecution further indicated that it had just learned the previous day that Officer Barada and his wife were expecting a baby, and for that reason he had put in a family leave request with his department for the two-week period commencing on March 24, 2008. In view of the leave request, and noting that the defense had waived the opportunity to cross-examine Officer Barada at the preliminary hearing, the prosecution requested that the officer be declared unavailable and that his preliminary hearing testimony be read to the jury.
Appellant objected, asserting that the prosecution did not show due diligence in attempting to secure Officer Barada’s attendance at trial by failing to contact Officer Barada at any time between March 14 and March 26, 2008. At that point, the trial court deferred ruling on the matter.
The next day, March 27, 2008, appellant was not present at trial due to a medical issue. Officer Barada, however, was present in court and available to testify until 10:00 a.m. Defense counsel declined to waive appellant’s appearance for Officer Barada’s testimony. The officer indicated that his wife was checking into the hospital that morning for a C-section that would occur either that day or the next. Immediately thereafter, Officer Barada would be taking care of his other children, a three-year old and a 20-month old, at a home outside the county while his home was being remodeled. Relatives who would otherwise be available to take care of his children were leaving the state after the birth of the officer’s third child.
Over defense objection, the prosecution renewed its request that Officer Barada be declared unavailable. The court declined to make that determination, instead putting the trial over for good cause and ordering Officer Barada to remain under subpoena and to return to court on Tuesday, April 1, 2008. Immediately before that ruling, the court asked Officer Barada what he would do in the event of such a ruling, and Officer Barada responded: “I don’t know if I can make it, your honor, so I can’t say I can be here. I don’t know. So if I can’t get anybody to watch the kids, help take care of my wife, then I can’t make it.” After ordering Officer Barada to remain under subpoena, the trial court commented: “Whether you are here or not, that is certainly your decision, but for the record you are ordered back.”
When trial resumed on April 1, 2008, appellant appeared but Officer Barada did not. Officer Barada had not contacted either the court or the prosecution, and the prosecution could not find his cell phone number to contact him. It requested that Officer Barada be declared unavailable pursuant to Evidence Code section 240, subdivision (a)(5), on the ground that it exercised reasonable diligence but had been unable to secure his attendance at trial through court processes. The defense renewed its objection, arguing that the prosecution failed to exercise due diligence by not contacting Officer Barada between the March 27, 2008 hearing and that morning.
Expressly confining its ruling to the specific circumstances presented by Officer Barada’s situation, the trial court determined that Officer Barada was unavailable within the meaning of Evidence Code section 240: “[Officer Barada’s] unavailability is extreme in the sense that he cannot... leave his family alone, if indeed he is the only adult to take care of his family. He, as a peace officer I’m sure, had weighed the pros and cons. I can just infer that because he was here the morning that his wife was to be admitted.... He was here at 9:00, before that, dressed, ready to testify, and he would have had his—you know, we would have been able to get his testimony, except for the other circumstance of Mr. Pacheco being medically unavailable. So, he did try. The fact that as a peace officer he’s required to follow a duly served subpoena and certainly a court order now on top of the subpoena, I’m sure he weighed those pros and cons and felt that he had to err on the side of his family and his personal reasons. The People have exercised, I will find, reasonable diligence herein throughout the—the process that started with, and I’ll find, with having the witness appear on Thursday. I don’t quite agree that they exercised the fully reasonable diligence before that, but bringing the witness here on Thursday, ready to testify, I think starts over with respect to what the People arguably could have done. They did bring him here, and he was ready to go, except for Mr. Pacheco’s unavailability. So, we’re now in a different situation. Weighing all the circumstances here, and the fact that, you know, the officer is in Riverside County with three young children, one of whom is a newly born infant, and one—and an adult wife who’s had major surgery and is the only caregiver, he needs to be there. So, I will find under Evidence Code section 240(a)(4) and (5) that Mr. [Barada] is unavailable and will find good cause then to have his prior testimony read, subject to any objections that would occur and instructions to the jury that I—I’d be certainly willing to consider that, any admonition to the jury regarding his unavailability.”
In accordance with the trial court’s ruling, Officer Barada’s preliminary hearing testimony was read to the jury.
II. The Trial Court Properly Determined that Officer Barada was Unavailable.
“The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution’s witnesses. [Citations.]” (Cromer, supra, 24 Cal.4th at p. 892.) But the right to confrontation is not absolute. (Ibid.) Testimony given in a preliminary hearing against the defendant may be used at trial if the witness is unavailable at trial. (Evid. Code, § 1291.) Evidence Code section 240 defines certain occasions when a witness may be deemed unavailable, such as when the declarant is “[a]bsent from the hearing and the court is unable to compel his or her attendance by its process,” or when the declarant 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, subds. (a)(4) & (5); see also People v. Wilson (2005) 36 Cal.4th 309, 340; People v. Sanders (1995) 11 Cal.4th 475, 522–523.) The proponent of the evidence has the burden of establishing unavailability by competent evidence. (People v. Cummings (1993) 4 Cal.4th 1233, 1296; People v. Diaz (2002) 95 Cal.App.4th 695, 706.)
In pertinent part, Evidence Code section 1291, subdivision (a) provides: “Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶]... [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.”
To determine whether a party has exercised reasonable or due diligence to locate and to produce a witness at trial, courts consider the totality of the efforts undertaken, including the character of the proponent’s efforts; whether the search was timely begun; the importance of the witness’s testimony; whether leads were competently explored; whether the proponent reasonably believed prior to trial that the witness would appear willingly and therefore did not subpoena the witness when he or she was available; and whether the witness would have been produced if reasonable diligence had been exercised. (Cromer, supra, 24 Cal.4th at p. 904; People v. Sanders, supra, 11 Cal.4th at p. 523.) The fact that the proponent of the evidence could have taken some further or additional step does not render his or her efforts unreasonable; reasonable diligence is all that is required. (People v. Wilson, supra, 36 Cal.4th at p. 342; People v. Diaz, supra, 95 Cal.App.4th at p. 706.)
We conclude that the prosecution here met its burden to establish it exercised reasonable diligence in attempting to secure Officer Barada’s attendance at trial. As the trial court recognized, the prosecution did, in fact, secure Officer Barada’s attendance, even though his family leave period had already commenced. Officer Barada appeared in court, prepared to testify, but was prohibited from doing so because appellant was absent from court that day. At that point, the trial court ordered Officer Barada to remain under subpoena and to return to court on the next trial date, five days away. The totality of these efforts established reasonable diligence in that the prosecution conducted substantial, good faith efforts to search to ensure Officer Barada’s attendance at trial; actually brought him to trial; and utilized the court processes to endeavor to ensure his return to court a few days later. That Officer Barada elected to disobey the subpoena does not reflect any lack of diligence on the part of the prosecution. As explained in Gaines v. Municipal Court (1980) 101 Cal.App.3d556, 561, “counsel who prosecute or defend a criminal cause are not required to anticipate a police witness’ disobedience of a subpoena.” Thus, “[i]f a police officer disregards a subpoena issued on behalf of either the prosecution or the defense, he defaults as a witness and not as an agent of counsel.” (Ibid.)
Appellant relies on Cromer, supra, 24 Cal.4th 889, in asserting that the prosecution did not exercise reasonable diligence. Cromer is readily distinguishable. There, the prosecution was on notice of a witness’s disappearance less than two weeks after the preliminary hearing in June 1997 and over two months before the original trial date in September 1997. Although a subpoena was issued for the witness to attend trial in early September, the prosecution made no effort to serve it on the witness. (Id. at p. 903.) Nor did the prosecution make any effort to serve a subsequently issued subpoena for the witness to appear on the rescheduled trial date in December 1997. Even though the prosecution knew as early as June 1997 that the witness had disappeared from the neighborhood where she had lived, the only effort made to locate her was in December 1997, when investigators made a few visits to her former residence. (Ibid.) Trial was put over again, and on January 20, 1998, after the case had been called for trial, the prosecution finally learned the witness was living with her mother in San Bernardino. (Ibid.) Despite the imminence of trial, the prosecution waited two full days to follow up on this information and obtain the relevant address. (Id. at pp. 903–904.) After jury selection had begun, an investigator went to the mother’s residence, where he learned the mother would return the next day. Though the mother was the person most likely to know the witness’s whereabouts, the investigator neither returned to the residence nor undertook any other efforts to contact the mother. (Id. at p. 904.) On the basis of this chronology, the court concluded that “serious efforts to locate [the witness] were unreasonably delayed, and investigation of promising information was unreasonably curtailed.” (Ibid.)
The evident lack of diligence in Cromer contrasts with the prosecution’s behavior in this case. Unlike the failure of the Cromer prosecution to make any attempt to serve the witness with a subpoena until shortly before trial had begun and long after learning she had changed her address, the prosecution in this case served a subpoena on Officer Barada one month before trial began, diligently pursued his attendance at trial notwithstanding the officer’s family situation at the time and procured his attendance at trial. In contrast to Cromer, the prosecution here undertook timely, serious and successful efforts to obtain Officer Barada’s presence at trial. These circumstances likewise distinguish this matter from People v. Avila (2005) 131 Cal.App.4th 163, 169, where the prosecution waited until the morning trial began to attempt to locate a witness after being out of touch for several months.
Though appellant complains that a lack of diligence was shown by the prosecution’s subsequent failure to follow up with Officer Barada between March 27 and April 1, 2008, he does not suggest what the prosecution could have done at that point beyond reminding the officer that his attendance was required pursuant to a subpoena and a court order. We cannot conclude that the prosecution’s failure to contact Officer Barada following the trial court’s order establishes a lack of diligence. (See People v. Cummings, supra, 4 Cal.4th at p. 1298 [“That additional efforts might have been made or other lines of inquiry pursued does not affect” a finding of due diligence]; People v. Diaz, supra, 95 Cal.App.4th at p. 706 [“‘Where the record reveals,... that sustained and substantial good faith efforts were undertaken, the defendant’s ability to suggest additional steps (usually, as here, with the benefit of hindsight) does not automatically render the prosecution’s efforts “unreasonable.” [Citations.] The law requires only reasonable efforts, not prescient perfection’”].)
Finally, we reject appellant’s assertion that Officer Barada should not have been deemed unavailable because the trial court intimated that he need not comply with the subpoena. After ordering Officer Barada to return, the trial court stated: “Whether you are here or not, that is certainly your decision, but for the record you are ordered back.” We do not construe the trial court’s comment as an invitation to disregard its order. In any event, just as it is not the prosecution’s burden to ensure delivery of a subpoena to a peace officer, the prosecution similarly cannot be expected to verify an officer’s compliance with a subpoena. (See Jensen v. Superior Court (2008) 160 Cal.App.4th 266, 273 [“Service of the subpoena is the responsibility of the attorney, and once service was effected, counsel is ‘not required to employ any additional mode of process, either formal or informal’ to ensure the witness’s availability or attendance”].)
In sum, we conclude that the trial court properly found that the prosecution exercised due diligence and that Officer Barada was an unavailable witness pursuant to Evidence Code section 240, subdivision (a). Accordingly, the trial court properly admitted his preliminary hearing testimony pursuant to Evidence Code section 1291.
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.