Opinion
NOT TO BE PUBLISHED
Sup.Ct.No. 06CR10072
MORRISON, J.
Following his conviction for three felonies and two misdemeanors, defendant Michael Ray Archer contends he was denied a fair trial because he was absent during critical stages of the trial proceedings. On this point, we disagree and affirm. Defendant also contends the sentence on his prior prison term should be vacated as it arose from the same conviction which provided the basis for the prior serious felony enhancements. The People properly conceded this point. Accordingly, we strike the sentence on the prior prison term enhancement.
FACTUAL AND PROCEDURAL HISTORY
Defendant was charged with second degree robbery (Pen. Code, § 211), criminal threats (§ 422), transportation of heroin (Health & Saf. Code, § 11352, subd. (a)), being under the influence of controlled substances (Health & Saf. Code, § 11550, subd. (a)) and being in possession of narcotics paraphernalia. (Health & Saf. Code, § 11364.) It was alleged defendant had personally used a dangerous weapon in the robbery and in making the criminal threats. It was further alleged defendant had four prior felony convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i); 667, subd. (a)(1)), and had served four prior prison terms. (§ 667.5.)
Further undesignated statutory references are to the Penal Code.
On March 11, 2006, defendant and his acquaintance, Frank Biglow, went to Jackson Rancharia Casino in Biglow’s SUV. Biglow met Andrew Oksen there.
At some point, Oksen left the casino and went back to his car to smoke, drink and nap. When Oksen awoke, he saw Biglow and asked him for a couple of cigarettes. About 20 minutes later, Biglow told Oksen he and a friend wanted to go into Jackson.
Biglow drove the threesome into Jackson in Oksen’s car while defendant rode in the backseat. Oksen and defendant did not get along. Nonetheless, the trio stopped a number of times and smoked methamphetamine. Throughout the ride, Biglow and defendant repeatedly displayed their knives.
When they returned to the casino, Biglow got out of the car and defendant remained and moved behind Oksen. He stuck something sharp against Oksen’s neck and threatened to slash his throat if he did not give defendant his money. Oksen was afraid and gave defendant his money and car keys. Defendant got out of the car and tossed the keys away.
As defendant headed towards Biglow’s car, Oksen retrieved a snow shovel from the trunk of his car and chased defendant. Defendant got into Biglow’s car and Oksen started hitting the car with the shovel. Oksen saw a tribal officer and called out to him that defendant had robbed him.
Tribal Police Department Sergeant Kelly Wardlaw responded to Oksen’s call for help. He ordered Oksen to drop the shovel and then ordered defendant to stop Biglow’s car. Eventually Wardlaw ordered defendant out of the car at gunpoint. As Biglow approached the area, Oksen pointed him out has having been involved in the robbery, as well.
More officers arrived and Wardlaw patted down Biglow and found two knives. Biglow’s car was also searched, revealing money, a knife, hypodermic needles and heroin. Biglow admitted he was high from using heroin and methamphetamine that night. Ultimately, Biglow was convicted of felony possession of drugs. Oksen’s car was also searched, revealing a glass methamphetamine pipe.
Among the motions in limine filed by the People was a request to have the prior testimony of Biglow admitted at trial pursuant to Evidence Code section 1291. Specifically, the People sought to use Biglow’s testimony from the preliminary hearing.
To establish they had exercised due diligence in attempting to bring Biglow to court, the People called Amador County District Attorney’s Office Investigator Larry Waller.
Between April 24, 2006, and June 7, 2006, Waller made a number of efforts to contact and locate Biglow. On April 24, 2006, Biglow was scheduled to appear at a hearing in Amador County. Waller went to that court to wait for Biglow and serve a subpoena on him, but Biglow did not appear in court. He had been informed he could reach Biglow at his parent’s home, and called there four or five times. Waller went to that residence more than twice. On three occasions, he spoke with Biglow’s parents and asked how to contact him. They did not know how to get in contact with him and said Biglow was no longer welcome in their home.
Waller checked to see if Biglow was in custody in other counties, and did not find him in custody. He checked both local jails and state prisons. He twice confirmed there was an active warrant for Biglow. He ran DMV, CII and rap sheets for all the counties in Northern California on Biglow to get possible locations for Biglow. He got about three alternate addresses and a number through a Lexis-Nexis report. He got a phone number for each address and checked each number. He did not go to each address because of their distance out of the county. He contacted at least four sheriff’s offices in other counties and asked to be immediately advised if Biglow was arrested. He was not successful in either speaking to Biglow or serving the subpoena.
Based on this showing, the court found the People had made a diligent effort to locate Biglow and serve him with the subpoena. Accordingly, the court ruled the People would be permitted to read Biglow’s testimony from the preliminary hearing at trial.
Defendant was convicted on all counts and the personal use allegations were found true. The prior conviction allegations were also found true. Defendant was sentenced to consecutive 25-years-to-life counts on the robbery and transportation of heroin convictions. The 25-years-to-life sentence on the criminal threat conviction was stayed pursuant to section 654. He received two consecutive one-year sentences on the personal use enhancements, with one stayed under section 654. He was also sentenced to a consecutive aggregate term of 22 years on the prior convictions and prior prison term allegations. This term was comprised of five years for each of the four prior serious felonies, plus one year for the prior prison term enhancement.
DISCUSSION
I.
Defendant contends the hearing on whether Biglow’s preliminary hearing testimony could be used at trial, and specifically on whether the People had exercised due diligence in their efforts to procure him for trial was a critical stage of the trial proceedings. Accordingly, he argues the judgment should be reversed because of his absence from the hearings on that point. We disagree.
Defendant does not challenge the finding that Biglow was unavailable for trial or the admission of his preliminary hearing testimony under Evidence Code section 1291.
Under the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment, a defendant has the right “to be present at any stage of the criminal proceedings ‘that is critical to its outcome if his presence would contribute to the fairness of the procedure.’ [Citation.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1356-1357, italics added.) However, a “defendant is not entitled to be personally present either in chambers or at bench discussions that occur outside of the jury’s presence on questions of law or other matters as to which the defendant’s presence does not bear a ‘“‘reasonably substantial relation to the fullness of his opportunity to defend against the charge.’”’ [Citations.]” (Id. at p. 1357.)
“[A] defendant may ordinarily be excluded from conferences on questions of law, even if those questions are critical to the outcome of the case, because the defendant’s presence would not contribute to the fairness of the proceedings.” (People v. Perry (2006) 38 Cal.4th 302, 312 (Perry).) “Stated in another way, ‘[W]hen the presence of the defendant will be useful, or of benefit to him and his counsel, the lack of his presence becomes a denial of due process of law.’ [Citation.] (People v. Jackson (1980) 28 Cal.3d 264, 309-310.) The burden is on defendant to demonstrate that his absence prejudiced his case. (Ibid.)
The admissibility of Biglow’s preliminary hearing testimony was discussed on two occasions. Defendant was not present in court on either of these occasions. At both hearings, defense counsel was asked if defendant’s presence was necessary and he indicated it was not.
The People do not argue this constitutes a forfeiture of the claim. If the proceeding truly was a “critical stage,” it is unlikely counsel’s waiver of defendant’s appearance could forfeit the claim, as such a waiver would have to be personally made by defendant. However, the fact that counsel did not think defendant’s presence was necessary suggests defendant’s presence at these hearings would not have been useful to defendant or his counsel.
During the first hearing, defense counsel argued his opportunity for cross-examination at the preliminary hearing had been limited under Proposition 115 and complained the jury would not be able to assess Biglow’s demeanor while testifying, which would impinge on their ability to effectively judge his credibility. Counsel also indicated the defense might be interested in putting Biglow on as their witness on direct, and had made some efforts to contact Biglow themselves.
Defense counsel alleged Biglow was “high as a kite” during his preliminary hearing testimony.
It does not appear that counsel was seeking to use these arguments as a basis for claiming the preliminary hearing testimony could not be used at trial. Counsel asked for no ruling on the issue of whether testimony taken in a post-Proposition 115 preliminary hearing met the requirements of Evidence Code section 1291. Even if he had asked for such a ruling, the contention that Proposition 115 so changed the nature of preliminary hearings that testimony offered at such a hearing no longer satisfied Evidence Code section 1291 has been rejected. (People v. Lepe (1997) 57 Cal.App.4th 977, 982-984, overruled on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) Defendant offers no argument as to what benefit his presence at this hearing could have conferred, and we fail to see any.
During the second hearing, to satisfy the due diligence requirement of Evidence Code section 1291, the People put their investigator on the stand to testify as to the efforts he had made in procuring Biglow’s appearance at trial. Despite defendant’s claim that he “could have had independent knowledge in regard to being able to locate [] Biglow[,]” we do not believe his presence at this hearing would have contributed to the fairness of the hearing.
The question of whether the People have exercised due diligence is a mixed question of law and fact. (People v. Louis (1986) 42 Cal.3d 969, 987, disapproved on other grounds in People v. Mickey (1991) 54 Cal.3d 612, 672, fn. 9; see also People v. Cromer (2001) 24 Cal.4th 889, 899.) The first portion of the inquiry is directed at determining the historical facts. (Cromer, supra, 24 Cal.4th at p. 900.) The second part of the inquiry involves the court applying an objective, constitutional based legal test to those historical facts. (Ibid.) This second inquiry is a question of law. (Id. at p. 902.) Where, as here, the facts are not disputed, the determination of whether the People have met their burden of due diligence is predominantly a legal question. (Ibid.)
Defendant does not claim the investigator did not actually make the efforts he claimed. Nor does he suggest there were any facts on which to challenge the efforts made by the investigator. Thus, there is nothing to suggest defendant’s presence would have contributed anything to the factual inquiry of what efforts the investigator had made to locate Biglow.
Because the hearing was on a predominantly legal issue, held outside of the jury’s presence, defendant was not entitled to be present. His presence would not have contributed to the fairness of the proceeding, and would not have been useful or beneficial to him or counsel. (See Perry, supra, 38 Cal.4th at p. 312; Jackson, supra, 28 Cal.3d at pp. 309-310.)
Defendant’s claim that he “might well have had important information to contribute on the subject because he and [] Biglow had known one another in Lodi” does not aid him. First, even if he knew where Biglow was, that knowledge had no bearing on whether the People were reasonably diligent in their search for Biglow. Second, that he “might” have had some information is entirely too speculative to demonstrate that his presence at the hearing bore a reasonably substantial relation to his ability to defend the charges against him. (People v. Ochoa (2001) 26 Cal.4th 398, 434; People v. Waidla (2000) 22 Cal.4th 690, 742.)
The defendant does not have a guaranteed privilege of presence at a hearing “‘when his presence would be useless, or the benefit but a shadow[.]’” (Kentucky v. Stincer (1987) 482 U.S. 730, 745 [96 L.Ed.2d 631, 647].) In this case, defendant’s presence at the hearings would not have contributed anything to the fairness of the proceedings. Accordingly, he has not demonstrated he suffered prejudice from his absence.
II.
Defendant next contends his sentence on the prior prison term (§ 667.5, subd. (b)) must be vacated as it was based on the same conviction which served to support the prior serious felony enhancements. (§ 667, subd. (a).) The People properly concede this point. (People v. Jones (1993) 5 Cal.4th 1142, 1153; People v. Smith (1995) 33 Cal.App.4th 1586, 1600.) We shall modify the judgment by striking the enhancement.
DISPOSITION
The prior prison term enhancement as to the transportation of heroin conviction (count 3) is stricken. The trial court is directed to prepare an amended abstract of judgment which reflects this modification, and to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: RAYE , Acting P.J., BUTZ , J.