Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR178666
Jones, P.J.
Lawrence Cox appeals his convictions by jury verdict of robbery (Pen. Code., § 211), burglary (§ 459), criminal threats (§ 422), false imprisonment (§ 236), assault with a firearm (§ 245, subd. (a)(2)), and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)). The jury also found true the special allegations that he personally inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)(1)). He contends the court prejudicially erred in admitting the victim’s preliminary hearing testimony. He also asserts prosecutorial misconduct.
All further section references are to the Penal Code.
BACKGROUND
At approximately 1:00 a.m., May 11, 2005, Vallejo Police Officers Gilbert Lucero, Robert Harmer, Ronald Braxton, and Robert Herndon responded to a dispatch of a disturbance in a condominium complex at 341 Stinson Street. The dispatch reported sounds of banging, like a body being beaten, coming from an upstairs unit and that a person wearing a ski mask was standing next to a parked car in front of the building. As Officer Harmer approached the rear of the building, he heard loud banging from the back of the building and saw a person wearing dark clothes running away from the building. He then heard a crashing noise and saw appellant falling from the second story of the building. Appellant landed on his feet near some bushes approximately 30 feet from Harmer. He turned from Harmer and ran away, ignoring Harmer’s direction to stop. Harmer radioed the officers in front of the building that appellant was coming toward the front of the building. Harmer retrieved a gun magazine from a bush near the spot where appellant landed.
Officer Lucero saw appellant running toward him. As appellant was jumping the back fence, Lucero ordered him to lie on the ground. Appellant complied, and Lucero arrested him. Fresh blood stains were on his shirt.
Lucero went to the upper story of the building. He encountered Charles Williams standing outside the open front door of an apartment. Williams’s head was bleeding and he was holding a bloody rag. Looking through the open door Lucero saw blood on the floor of the apartment. Williams told Lucero he had been pistol-whipped by two people and stabbed on the head and face with a fork, that his assailants tied him up, laid him face down on the floor, took his wallet and money, and fled through his balcony and out the rear of the building. Lucero noticed a ski mask next to the front door of the apartment, blood in several places in the living room, and black plastic ties.
Corporal Herndon searched appellant. He seized one wallet containing appellant’s identification and, from appellant’s front pants pocket, seized another wallet that contained identification for Williams.
As Officer Braxton turned into Stinson Street from Bodega Road he saw a four-door Chevrolet truck approximately 20 yards from 341 Stinson Street. He did not reach 341 Stinson Street because he received a call from Officer Lucero that a subject was running toward Quiet Harbor Drive, which runs roughly parallel one street to the east of Stinson Street. Braxton went to Quiet Harbor Drive, where he saw and detained Mandingo Cummings. Cummings was medium-to-tall, heavyset and had a swollen lip and bloody nose. As Braxton was detaining Cummings, he saw the same Chevrolet truck he had seen two minutes earlier on Stinson Street. It was moving slowly and was the only vehicle in the area. Braxton radioed other officers to detain the truck.
Officer Steven Kent detained the Chevrolet truck in response to Braxton’s radio call. Inside the truck he saw a nine-millimeter magazine clip containing cartridges. Antoine Young was the driver of the truck.
After Officer Braxton processed Mandingo Cummings, he went to the detained truck. He seized a cell phone from the driver’s door compartment, a pair of binoculars from the console in the backseat, and several black plastic ties, 20 to 24 inches long, from the floorboard behind the driver’s seat.
During their investigation of the building grounds immediately after appellant’s arrest, the police retrieved a pair of black gloves and a pair of bolt cutters near a fence on the side of the building. They retrieved a pistol magazine containing six nine-millimeter bullets near the spot where appellant was detained. They retrieved a nine-millimeter High Point handgun and two black caps with cut out eye holes from a dirt trail running alongside the fence. The gun did not contain a magazine. From Williams’s apartment they retrieved two black zip ties from the living room floor, a black beanie with two holes cut out for eyes at the entryway to the apartment, a fork with blood on it, and a folding knife.
Two days later, searching with a metal detector, the police retrieved a cell phone and a .45 caliber Ruger handgun in the brush along the path at the rear of the building. The gun contained a magazine with bullets. DNA tests showed that the blood stains from the two guns and from the beanie found inside the apartment matched Williams’s blood. DNA tests also showed that the saliva on one of the beanies found on the dirt path matched that of Mandingo Cummings and the saliva on the other beanie matched that of Williams, Floyd Green, and Shomaeri Humphrey.
A telephone number appellant gave the police during his post-arrest interview corresponded with the number of the cell phone found in the brush. One of the tee shirts appellant was wearing when he was arrested contained fresh blood stains.
Williams’s treating physician diagnosed his injuries as blunt trauma to the head, with resulting multiple lacerations and skull fracture. The injuries were significant and severe. The lacerations were sutured or stapled. The physician believed he was at risk for some scarring.
Charles Williams was unavailable to testify at trial. His preliminary hearing testimony was read to the jury. He gave the following evidence: On the night of the assault he was at the 341 Stinson Street apartment with the permission of its owner, Ms. Henderson. A young woman named Alicia Camargo was with him. She had called earlier in the evening asking to come over. They had been friends for a few months, but they were not romantically involved. He knew she had a boyfriend, whom he had never met and whose name he did not know. While they watched a movie Camargo received numerous text messages on her cell phone, to which she responded.
Eventually, Camargo told Williams that she had to do something with her boyfriend. As he opened the front door to show her out, he saw two men with masks over their faces at the doorway. He tried to push the door closed, but they pushed it open and turned off the lights by the front door. The television and the lamp next to the television remained on. Each masked man put a gun to his face. One assailant was taller than Williams, who is five feet, eight or nine inches tall, and one was shorter. The men told him to shut up or he would die. The shorter one went for Camargo. The taller one grabbed Williams and they wrestled for about 10 minutes. At the outset of the struggle Williams pulled a folding-blade knife from his pocket with the thought he could stab the taller man, but he did not use it because he feared being shot by the shorter man. The shorter man knocked the knife from his hands. The taller man kept hitting him on the side of the head with the butt of his gun. The shorter man also hit him with a gun. The shorter man took a fork from the kitchen counter, put it to Williams’s neck and said, “I’m gonna kill him.” He did not cut Williams’s neck but did stab him on the top of the head. At the end of the struggle Williams pulled off the taller man’s mask. Both men tied up his wrists and ankles with plastic ties, and put the mask over his face. The taller man took a chain from Williams’s neck, his wallet from his back pocket, and some loose money that was in his pocket.
While on the floor, Williams was able to see the taller man’s face because it was reflected in a mirror leaning against the wall. During the struggle Camargo was lying on the floor by the television. The shorter man went into a bedroom and found $2,500 belonging to the apartment owner. Williams broke free from the ties. The two men tried to leave by the front door, but the police were on the front porch. The two men ran to the patio door and jumped out of the balcony window. Camargo’s legs but not her arms had been tied up. Williams told her to leave the apartment before the police arrived.
Williams had never seen the taller man before. He identified appellant as the taller assailant at the preliminary hearing. He never saw the shorter man’s face.
Officer Matthew Mustard (Mustard), the lead investigator of the incident, seized Camargo’s cell phone. Several calls between her phone and the phone found in the brush were made immediately prior to the assault on Williams. Mustard interviewed Williams and showed him several photo line-ups. Williams immediately identified appellant as the taller assailant.
Camargo did not testify at the preliminary hearing or at trial.
Defense
Appellant testified on his own behalf. As of the date of the assault he had been dating Camargo for approximately three years, although the relationship was having problems. He got word that she was seeing someone named “Pug.”
A single information was filed against appellant, Mandingo Cummings, and Antoine Young. Cummings subsequently pled no contest.
On the evening of May 10 and the early morning hours of May 11, 2005, appellant called Camargo numerous times from Cummings’s house. Cummings had told him that Camargo had been seen hanging out with Pug at Pug’s house. Antoine Young and Floyd Green were also at Cummings’s house. Appellant left Cummings’s house and later called Cummings about a party in Vallejo. Cummings said he was going to buy marijuana from Pug at 341 Stinson Street before going to the party. Appellant got a ride from a female acquaintance to 341 Stinson Street. He knew Pug was in an upstairs apartment. He saw Camargo’s mother’s car parked in front of the building. The street was very quiet.
As appellant was waiting for Cummings he noticed a lady in a downstairs unit peek out her window and then peek out her door. He turned away from her and walked in a direction that would be beyond her sightline. He then saw a police car coming down the street. He didn’t want to be harassed by the police so he walked quickly up the stairs to Pug’s apartment. Because he thought the police were watching him, he “faked” knocking on the door. It was slightly open. He pushed it open, walked in, and closed it behind him. He had his cell phone in his right hand at the time. Pug came at him with a pistol in one hand and a towel in the other hand. Pug pointed the pistol at appellant and said, “Oh, you niggers aren’t going to get any of my money. You ain’t going to get nothing else.” They wrestled, appellant’s cell phone fell to the floor, and appellant grabbed the muzzle of Pug’s gun with his left hand and Pug’s shirt with his right hand, saying, “[W]hat [are] you doing? Get off me. I don’t want you money. The police are outside.” Appellant hit him once with the butt of the gun and pushed him off. In the midst of the struggle appellant recognized Camargo lying on the floor next to the television. Appellant got the gun away from Pug, and then picked up everything he saw on the floor that he thought had fallen from his pockets during the struggle, including his phone and a wallet, so there would be no evidence he had been there. He ran out to the balcony and jumped off it because he did not want to encounter the police at the front door. He did not drop the gun on the balcony floor because he did not realize he was still carrying it. He saw a police officer and ran from him, discarding everything that was in his hands.
Appellant denied having any discussions with Cummings, Young or Green before he left Cummings’s house about an assault or robbery of anybody in Vallejo. He was unsuccessful in his attempts to locate the female acquaintance who had given him a lift to 341 Stinson Street.
Appellant was working as a youth advocate for the California Youth Connection when he was arrested. Don Graves, the program coordinator of the Contra Costa County Children and Family Services Independent Living Skills Program met appellant in late 1999 when appellant was a foster child and dependent of the juvenile court. He worked with him in the program until 2004. Graves found him mature and responsible; he did not know him to be a violent person.
Appellant was sentenced to a prison term of 21 years, 4 months.
DISCUSSION
I. Admission of Preliminary Hearing Testimony of Unavailable Witness
Appellant contends the trial court erred in admitting, over his objection, the preliminary hearing testimony of victim Charles Williams.
a. Background
Williams testified at the June 24, 2005 preliminary hearing. After appellant was held to answer and rearraigned, trial was scheduled for August 11, 2005. Following several continuances, trial was rescheduled for March 27, 2006. Williams complied with the subpoena to testify on March 27, although he did not arrive at the courtroom at the time designated on the subpoena. The trial date was vacated, for reasons unrelated to his tardiness. On April 6, 2006, trial was scheduled for Monday, June 12, 2006, at 8:30 a.m.
On June 12, 2006, the People moved for admission of Williams’s preliminary hearing testimony in its entirety on the grounds of unavailability. (Evid. Code, §§ 1290,1291.) In arguing the motion, the prosecutor, James Highsmith, noted that Williams had initially been cooperative, testifying at the preliminary hearing, and prepared to testify at the originally scheduled August 11, 2005 trial. Prosecutor Highsmith further noted that Williams had appeared late for the rescheduled March 27, 2006 trial, because, as he had explained to Highsmith that day, he was afraid of appellant who had been released on bail and of other people who had never been “captured.” However, Williams had reassured Highsmith on March 27 that he would make himself available at the next trial date and that he could still be reached, as he had always been reached, through his mother. On May 5, Highsmith issued witness subpoenas for the June 12 trial.
In support of the People’s motion, Officer Mustard testified that during some of their prior telephone conversations, Williams had expressed reluctance to come to court, but after Mustard’s reassurances, he had always appeared. Mustard had always served Williams through Williams’s mother, Mrs. Henderson, and had no trouble doing so for the preliminary hearing or the trials scheduled in August 2005 and March 2006. At Highsmith’s request, Mustard first attempted to serve Williams on May 24 via Mrs. Henderson with a subpoena to appear at the June 12 trial. He was able to contact Mrs. Henderson on his sixth attempt, June 1. Mustard left her a copy of the subpoena and his business card and asked her to have Williams contact him; she assured him she would do so.
Mustard spoke with Mrs. Henderson on June 2. She told him she had talked with Williams and that he told her he did not want to come to court because he was scared. Mustard asked Mrs. Henderson where Williams could be found; she replied that she did not know how to get hold of him. Mustard contacted Mrs. Henderson again on June 6, 7, 8 and 9, either by phone or in person. She reiterated that she had conveyed Mustard’s request to Williams, but he did not want to testify.
Mustard then ran a Department of Motor Vehicles check on appellant. His current DMV address was the same as Mrs. Henderson’s. Mustard also found four prior addresses for Williams on a computer data base that the police use to locate people. On Friday, June 9 he went in person to the addresses; neither the residents nor the neighbors knew Williams nor when he had lived at the address.
Mustard determined from DMV records that Williams had been stopped in 2005 in a car registered to his sister. On June 9, Mustard went to the sister’s house. She told Mustard that Williams was scared to appear at trial because he feared retaliation, either from the people against whom he testified or from “the people on the street” who considered him a snitch.
Through June 9 Mustard kept prosecutor Highsmith apprised of his efforts to find Williams. After consultation with Highsmith, Mustard served Mrs. Henderson with a subpoena on June 9 to appear in the courtroom at 8:30 a.m., June 12.
Arthur Gerrans, a investigator for the Solano County District Attorney’s Office, testified that he was asked on Wednesday, June 7, at 4:40 p.m., for assistance in locating and serving Williams. On June 8, he left a message on the telephone number listed for Williams in the police report of the incident. His message asked whoever answered the phone to contact him. As of June 12 he had received no response. He also spoke to Alicia Camargo’s roommate on June 8 and asked her to have Camargo call him because he was trying to reach Williams.
On June 8 at 4:10 p.m. Gerrans went to the current residence of Williams’s former girlfriend, Andrea Henderson, who was the registered tenant of the 341 Stinson Street apartment when the crimes occurred there in May 2005. She told Gerrans she was out of town on business when the crimes occurred, and that she and Williams broke up after the incident because another woman--Camargo--was at the apartment during the crimes. She also told Gerrans that she and Williams remained friendly, and that in January 2006 he told her did not want to testify because he feared for his safety and that of his family. At the time she replied that he should testify because of the severity of his injuries. She had no address or telephone number for him, nor had she been in contact with him, but she told Gerrans she would try to locate him.
On Friday, June 9, Gerrans learned that the post office forwarding address for Williams and Andrea Henderson at 341 Stinson Street had expired. He left another message for Alicia Camargo. He learned from Williams’s “rap” sheet that Williams used an alias. He had no success finding an address for Williams using the alias information. Searching Department of Public Welfare records, he obtained an apartment building address for Williams in Richmond. He went to the building and at 3:50 p.m. spoke to the building manager. The manager told him that the renter of the apartment unit was not named “Charles Williams” and that no one named Charles Williams was on the lease or lived in the building. Gerrans rang the buzzer of the apartment unit in which Williams supposedly lived. A “Latin fellow” answered; he told Gerrans he was visiting from Los Angeles, his girlfriend lived in the apartment; and his girlfriend’s male cousin stayed there occasionally. Gerrans showed the “Latin fellow” a picture of Williams; the fellow said the person in the picture was not the male cousin.
At 2:20 p.m., Sunday, June 11, Gerrans spoke again with Andrea Henderson, who said she had had no luck locating Williams. She had put the word out to his friends and relatives in Richmond, and none of them seemed to know where he was. She said she would telephone Gerrans with any updated information, but he had not heard from her as of June 12.
Highsmith testified that as of the March 27, 2006 hearing he knew Williams was reluctant to testify, but when they parted that day, Williams shook his hand and said “‘I know you have my best interests. [] I promise you I will be there.’” Highsmith did not attempt to get an address or phone number for Williams that day because Williams had been cooperative in the past and Officer Mustard had always been successful at obtaining such information. Williams’s mother had telephoned Mustard that she would be present at the June 12, 2006 trial, but as of Mustard’s 9:30 a.m. testimony she had not appeared.
According to the appellate record, Mrs. Henderson never appeared.
The trial court concluded that the district attorney’s office had conducted itself in a competent manner and had shown due diligence, whether under a legal or common sense definition of the term, in trying to obtain Williams’s presence. It therefore granted the People’s request to use the transcript of Williams’s preliminary hearing testimony.
b. Standard of Review
Former testimony is admissible if the declarant is unavailable as a witness, and the party against whom the former testimony is offered was a party to the prior proceeding at which the testimony was given and had the opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the current hearing. (Evid. Code, § 1291, subd. (a)(2).) A declarant is unavailable as a witness if, inter alia, the proponent of his statement has exercised reasonable diligence but has been unable to procure his attendance by the court’s process. (Evid. Code, § 240, subd. (a)(5).)
The due diligence inquiry presents the appellate court with a mixed question of fact and law. (People v. Cromer (2001) 24 Cal.4th 889, 894.) It first determines the historical facts; if they are in dispute, it applies a deferential substantial evidence standard of review to the trial court’s factual findings. (Id. at p. 900.) It then applies “an objective, constitutionally based legal test to the historical facts,” i.e., it subjects those historical facts to its independent review. (Id. at p. 900.)
c. Application
As Cromer observed, due diligence is not capable of a “mechanical definition,” but it “‘connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.’ [Citations.]” (Cromer, supra, 24 Cal.4th at p. 904.) Relevant considerations include whether the search for the witness was begun in timely fashion, the importance of the witness’s testimony, and whether leads to the witness’s whereabouts were competently explored. (Ibid.) Applying our independent review to the undisputed facts, we conclude the prosecution demonstrated due diligence in its efforts to locate Williams.
From the June 2005 preliminary hearing until his appearance at the scheduled March 2006 trial Williams showed a willingness to be a cooperative witness. He was readily reached through his mother, Mrs. Henderson. He appeared at court when summoned, although he showed up late at the March 2006 trial. He explained to prosecutor Highsmith in March 2006 that he showed up late because he was scared. Although anxious about testifying, he was willing to do so. His behavior up to that point did not suggest a likelihood he would disappear before trial. He did not manifest a lack of cooperation until Friday, June 2, 10 days before trial, when, through Mrs. Henderson, he expressed his change of heart and refusal to participate.
Beginning June 6, Investigating Officer Mustard made daily contact with Williams’s mother to try to reach him. The prosecutor also enlisted the assistance of a second investigator, Gerrans, to help locate Williams. Between them, Mustard or Gerrans looked for and then went in person to all addresses associated with Williams to make inquiries of the occupants and neighbors about Williams’s whereabouts. Up to the day before trial, they made repeated contacts or efforts to contact people other than his mother who would be likely to know how to reach him: his sister, his girlfriend at the time of the incident, and the friend who was in the apartment during the incident.
Appellant argues the prosecution did not demonstrate due diligence because it did not secure an order at the March 27, 2006 hearing compelling Williams’s presence at trial; he was never served with a subpoena; and investigators Mustard and Gerrans began to look for him only five days before trial. He further argues the prosecution could have secured information regarding his residence, place of work, telephone numbers and names of people who could contact him at the preliminary hearing.
We reiterate that until June 2, 2006, when Williams’s mother informed Officer Mustard that he did not want to testify, the prosecution had always been able to contact him through his mother, he had cooperated with the prosecution’s requests, and he had promised prosecutor Highsmith that he would testify. The prosecution cannot be deemed lacking in diligence for not securing more detailed location information about Williams prior to June 2, when the means used to contact him until then had been sufficient to obtain his appearances.
It is also apparent that on June 2, Williams made clear that he was intentionally making himself unavailable due to his unwillingness to testify. The prosecution’s strenuous efforts to find Williams do not appear to have begun until June 7, when Gerrans was called in to assist Mustard in locating him. Gerrans and Mustard then found and talked to Williams’s sister and former girlfriend and went to former addresses. However, given Williams’s evident determination to avoid testifying, the prosecution’s efforts to secure his presence at trial would have been equally futile had the prosecution begun its efforts on June 2.
II. Prosecutorial Misconduct
Appellant contends two comments during the prosecutor’s closing argument constituted misconduct because they referred to matters outside the record.
At the outset of his argument, after briefly reciting the facts of the assault in the Stinson Street apartment, the prosecutor argued that appellant, even if an aider and abettor, was guilty of robbery, assault with force likely to cause great bodily injury, assault with a weapon, mayhem, and criminal threats. He then stated: “And there’s every reason to believe in this case that had the police not responded when they did, had the downstairs neighbor not responded when she did, they would have killed him.” (Italics added.) Defense counsel objected “to that line of argument” and asked that it be stricken. The court sustained the objection.
The prosecutor proceeded to describe and argue the separate charges at greater length. Referring to the criminal threats charge, he stated: “But I don’t think that there’s any reasonable doubt that a criminal threat was made. There was specific intent that the statement be taken as a threat. It contained a statement that was verbal. It was a threatening statement on its face. A reasonable person would have believed--taken it as a threat against [his or her] life. And the person reasonably was in sustained fear for his life. Any reasonable person would have been. And he was--anybody with this kind of fear wouldn’t want to come to court and testify. He would want to disappear.” Defense counsel objected to “that last statement” because “[t]here’s been no proof of that presented” and asked that it be stricken. The court sustained the objection and struck the comment, instructing the jury not to consider it.
While prosecutors have broad discretion to state their views as to inferences that may be drawn from the evidence (People v. Sims (1993) 5 Cal.4th 405, 463), their reference during closing argument to facts not in evidence constitutes misconduct because doing so makes them their own witnesses and allows them to offer unsworn testimony not subject to cross-examination. (People v. Hill (1998) 17 Cal.4th 800, 827, 828.)
Here, Williams testified that one assailant said “[w]e gonna cut his neck,” put a fork to Williams’s neck, said “I’m gonna kill him,” and stabbed the top of Williams’s head with the fork. He testified that another assailant “kept hitting me on the side of the head with the gun,” and that his assailants jumped out the window when the police came. The physician who treated Williams’s resulting fractured skull and head lacerations requiring 19 stitches and 15 staples described the injuries as significant and severe. One could infer from this evidence that the assailants’ actions might have caused Williams’s death if the police had not arrived, and such an argued inference might have been appropriate had appellant been charged with attempted murder. However, because he was not so charged, the inference was irrelevant. Moreover, Williams also testified that he wrestled the gun away from his face, that he “faked” being knocked out after he was hit a third time, and that his assailants started to leave after they tied him up, all of which implied he had extricated himself from the danger of death before the police arrived. There was also no expert testimony that, if the physical assault had continued for a specified amount of time longer than it did, death would have resulted. Consequently, the prosecutor’s definitive statement that “they [the assailants] would have killed” Williams had the police and the neighbor not intervened was, in the context of the evidence and charges, not only irrelevant but speculative, and thus improper as a reference to facts not in evidence.
Likewise, there was no evidence presented to the jury from which it could draw an inference that the victim of the instant criminal threats, impliedly Williams, “would want to disappear” and not testify because of “this kind of fear,” i.e., sustained fear of his life.
Although improper, the prosecutor’s statements do not warrant reversal because appellant was not prejudiced by them. (See People v. Ervin (2000) 22 Cal.4th 48, 100-101.) A prosecutor commits misconduct under state law if he uses “‘deceptive or reprehensible methods’ in an attempt to persuade the jury.’ [Citations.]” (Hill, supra, 17 Cal.4th at p. 845.) The prosecutor’s two remarks in the course of his entire closing argument do not manifest an overall outrageous, reprehensible means of persuasion or a deliberately calculated effort to deceive the jury. Furthermore, by sustaining defense counsel’s objections and striking the two comments, and by instructing the jury that statements by the lawyers during trial are not evidence and that the jury was to follow its instructions on the law, the court negated whatever slight prejudice arose from the statements. Absent evidence to the contrary, “the jury is presumed to follow the court’s instructions. [Citations.]” (People v. Bryden (1998) 63 Cal.App.4th 159, 184.) It is not reasonably probably that a different result would have been obtained absent the challenged comments by the prosecutor. (People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
We concur: Simons, J., Needham, J.