Opinion
C063451 No. CRF090380
10-20-2010
THE PEOPLE, Plaintiff and Respondent, v. TRENT WAYNE SWISHER, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury convicted defendant Trent Swisher of evading a police officer with reckless driving (Veh. Code, § 2800.2, subd. (a); count 1) and driving with a revoked license (Veh. Code, § 14601.1, subd. (a); count 2), a misdemeanor. The trial court found true the allegations that defendant had previously been convicted of a serious felony (mayhem) and that he had served six separate prior prison terms following felony convictions. The trial court sentenced defendant to six years in prison on count 1, plus four years for the enhancements, for a total prison term of 10 years.
Defendant argues the trial court erred in finding that the arresting officer was unavailable as a witness, thus permitting his preliminary hearing testimony to be read to the jury, and in denying defendant the right to move for a new trial based upon ineffective assistance of counsel.
We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 22, 2009, shortly before midnight, officer Ryan Piercy was on patrol in a marked vehicle in Woodland, California. He observed a white Nissan being driven by defendant. Cayce Webster was a passenger in the vehicle. As Piercy turned to follow the Nissan, it accelerated through a stop sign without stopping. Piercy activated his red lights and turned on the siren. The Nissan ran a red light at approximately 70 to 75 miles per hour. The Nissan continued on with Piercy in pursuit at approximately 90 miles per hour. The speed limit was 25 miles per hour in the residential areas, and no more than 35 miles per hour in the other areas. Defendant ran another stop sign and three more red lights. Defendant finally stopped in front of his mothers house and got out of the Nissan.
The entire incident lasted nine minutes and covered approximately four miles. It was captured on the police cars video. The video was played for the jury.
Defendants DMV record was admitted into evidence showing that his drivers license was in a revoked status on the date of the incident.
DISCUSSION
I
Unavailable Witness
Officer Piercy testified at defendants preliminary examination on April 28, 2009. At that time, he was still employed by the Woodland Police Department. A trial date was not set until July 20, 2009, and by that time, Piercy was no longer employed by the department. A subpoena was issued for Piercy on August 17, 2009. Trial commenced on September 8, 2009.
The prosecution was unable to locate Piercy to serve the subpoena, and after an evidentiary hearing on the issue of the prosecutions reasonable diligence in trying to locate Piercy, the trial court determined Piercy was unavailable as a witness within the meaning of Evidence Code section 240, and allowed a redacted version of Piercys preliminary hearing testimony to be read to the jury.
At the evidentiary hearing the prosecution presented evidence that an investigator went to an address obtained from the Woodland Police Department "several times" in an attempt to locate Piercy. When the investigator finally made contact with someone at the address, he was informed by the current resident that Piercy no longer lived there.
The investigator then checked DMV records and several online public databases for information on Piercy. The investigator located one Shasta County address, which he thought might be Piercys familys residence. He called the number listed for that address and left a message, but got no return call.
The investigator checked with the Employment Development Department to try and track Piercy through an employer, but found no more recent employer than the City of Woodland Police Department.
Another investigator obtained Piercys last cell phone number from the Woodland Police Department and left a message on that number. That investigator went to another address in Sacramento on Friday, September 4th (the Friday before the Tuesday trial date), and was informed by the resident that Piercy previously had lived there with his girlfriend, Jennifer, and that the resident worked with Jennifer and would see Jennifer that night. On Saturday, the resident informed the investigator that Jennifer had not come to work the night before.
The investigator spoke to the manager at Jennifers place of work and obtained Jennifers last name. He checked her DMV records, to no avail. He also had the manager send Jennifer an e-mail asking her to get in touch. He also tried leaving another message with Piercy.
The prosecutor testified that he was aware that Piercy was no longer employed at the department, but nevertheless believed he would be amenable to service. He was not aware of any difficulties in serving Piercy in any other matters.
Evidence Code section 1291 provides in pertinent part that evidence of former testimony is not inadmissible hearsay if the declarant is unavailable as a witness. Evidence Code section 240 in turn provides, in pertinent part, that a declarant is unavailable as a witness if the party seeking to introduce the statement has exercised "reasonable diligence," but has been unable to procure the witnesss attendance in the proceeding. When the requirements of Evidence Code section 1291 are met, a defendants constitutional right of confrontation is not violated by the admission of former testimony. (People v. Friend (2009) 47 Cal.4th 1, 67.)
Defendant argues the prosecution was not reasonably diligent in procuring Piercys presence, primarily because no effort was made to locate Piercy until three weeks prior to trial, but also because the prosecutions investigators did not check utility records or City of Woodland pay records, and did not do sufficient follow-up.
We independently review the trial courts determination that the prosecutions efforts constituted due diligence. (People v. Cromer (2001) 24 Cal.4th 889, 901.) Due diligence depends on the facts of each individual case. (People v. Sanders (1995) 11 Cal.4th 475, 523.) A court must consider the totality of the proponents efforts to procure the witnesss presence, including the character of the efforts taken, the timeliness of the efforts, and the proponents reasonable belief that the witness would willingly appear. (Ibid.)
The prosecutions failure to subpoena Piercy until three weeks prior to trial does not negate a finding of due diligence under the facts of this case. Although defendants trial counsel made much of the fact that the preliminary hearing was conducted some five months prior to trial, no trial date was set until July 20, 2009, only about seven weeks before the start of trial, and about four weeks before the subpoena issued. Also, as the prosecutor indicated, he did not realize Piercy would be difficult to locate, and in fact assumed he would respond to service because police officers typically are responsive to service. Under these facts, we deem a three-week period for service to be timely. Other cases have found such a search timely on shorter notice. (People v. Saucedo (1995) 33 Cal.App.4th 1230, 1236, overruled on another point in People v. Cromer, supra, 24 Cal.4th at p. 901 [eight days before trial]; People v. Smith (1971) 22 Cal.App.3d 25, 31 [one week before trial]; People v. Rodriguez (1971) 18 Cal.App.3d 793, 796-797 [six days before trial]; People v. Benjamin (1970) 3 Cal.App.3d 687, 697, disapproved on another point in People v. Brigham (1979) 25 Cal.3d 283, 292 [four days before trial].)
We also reject defendants brief argument that more could have been done to locate Piercy. Due diligence "^connotes persevering application, untiring efforts in good earnest, efforts of a substantial character." (People v. Cromer, supra, 24 Cal.4th. at p. 904.) The fact that additional efforts could have been made does not defeat the determination of due diligence. (People v. Diaz (2002) 95 Cal.App.4th 695, 706.)
The law requires reasonable efforts to locate the witness, not perfection. (Ibid.) The efforts made by the prosecutions investigators in this case were of a substantial character, and were reasonable under the circumstances of the case.
II
New Trial Motion
After the jury verdict, defense counsel informed the trial court that defendant requested a new trial based upon ineffective assistance of counsel. The trial court refused to hear a new trial motion: (1) because there was no motion before it, (2) because ineffective assistance of counsel is not a statutory ground for new trial pursuant to Penal Code section 1181, and (3) because based on the other two reasons there was no basis to appoint a new counsel.
People v. Simon (1989) 208 Cal.App.3d 841, 847, held that a motion for new trial may be made orally. People v. Fosselman (1983) 33 Cal.3d 572, 582, held that if the trial court is able to determine the effectiveness issue on a motion for new trial, it should do so. Thus, it was error for the court to refuse to consider the new trial motion on the grounds given. We nevertheless conclude defendant was not prejudiced by trial counsels omission.
Defendants claim is that counsel should have argued as to the misdemeanor charge in count 2, driving with a revoked license, that the evidence did not prove the revocation was in effect, or that he knew the revocation was in effect.
Of course, we have no idea whether this was in fact the basis for defendants claim of ineffective assistance. Notably, defendant made a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118) immediately preceding his request to move for a new trial, and never mentioned his counsels failure to argue either that he had a valid license or was unaware his license was still revoked.
To establish ineffective assistance of counsel, defendant bears the burden of showing: (1) that counsels performance was deficient, and (2) that absent the error it is reasonably probable the verdict would have been more favorable to him. (People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053.) We conclude defendant has not met his burden of showing either deficient performance or reasonable probability of a more favorable verdict because the evidence defendant had no valid license was conclusive.
Defendants license was revoked in conjunction with his prior conviction for violation of Vehicle Code section 20001, subdivision (a), failure to stop at the scene of an injury accident. Vehicle Code section 13350, subdivisions (a)(1) and (c) provide that a violation of section 20001 shall result in a license revocation, which shall not be reinstated until the expiration of one year and until the defendant gives proof of financial responsibility as defined in Vehicle Code section 16430.
Revocation of a license means a persons driving privilege is terminated and the person must obtain a new license after the period of revocation in order to have driving privileges reinstated. (Veh. Code, § 13101.) This indicates that driving privileges are not automatically reinstated, but that the driver must actively apply for a new license. Such action includes submitting proof of financial responsibility.
Exhibit 2 included DMV form DL414, dated May 1, 2009. The form indicated defendants license was revoked effective January 19, 2006. The "thru date" or termination date for the revocation was blank. The Order of Revocation indicated defendants license was revoked "for at least one (1) year and until you provide this department with proof of financial responsibility!.]" The DL414 form further indicated defendant was issued an identification card on November 5, 2008, and that proof of financial responsibility was required.
The only reasonable inference from the information provided on the DL414 form is that any action to reissue a license through the date the form was generated (May 1, 2009) would have appeared on the form. Consistent with this inference is the fact that defendants identification card issue on November 5, 2008, appears on the form. The fact that no entry indicated defendant had been issued a new license, and that proof of financial responsibility by way of a SR22 form was still required, conclusively proved that defendant had no valid license at the time of the offense.
There was also conclusive evidence defendant had been informed of the status of his drivers license. The evidence presented indicated defendant was notified that his license was revoked, that it was revoked for at least one year, and that until January 19, 2010, proof of financial responsibility would be required to obtain a new license.
Given the evidence of defendants guilt on count 2, defense counsel was not ineffective for failing to argue insufficient proof to the jury. Conversely, even if defense counsel had made such an argument, it is not reasonably probable the verdict would have been different given the state of the evidence.
DISPOSITION
The judgment is affirmed.
BLEASE, J.
We concur:
Retired Presiding Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
HULL, J.