Opinion
A154191
09-20-2019
THE PEOPLE, Plaintiff and Respondent, v. THOMAS STEVEN DAVIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City and County of San Francisco Super. Ct. No. SCN225698)
Defendant Thomas Steven Davis appeals from a judgment entered following his convictions by jury on three counts of committing a lewd act on a child of 14 or 15 years of age and at least 10 years younger than defendant (Pen. Code, § 288, subd. (c)(1)), for which he was sentenced to an aggregate term of three years, four months.
The sole issue raised on appeal is whether defendant's constitutional right to confrontation was violated by the admission, at trial, of the victim's preliminary hearing testimony based upon her unavailability to appear at trial. After a contested hearing outside the presence of the jury, the court ruled the prosecution had demonstrated due diligence in attempting to secure the victim's attendance and, therefore, could introduce certain portions of the victim's direct and cross-examination testimony elicited at the preliminary hearing. Defendant contends the court erred by finding the prosecution's efforts to secure the victim's trial testimony were adequate. Having independently reviewed the record, we concur with the trial court's finding of the prosecution's due diligence. Accordingly, we affirm the judgment.
The law governing the confrontation issue raised on this appeal is well settled: "The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution's witnesses. (U.S. Const., 6th Amend., Cal. Const., art. I, § 15.) That right is not absolute, however. An exception exists when a witness is unavailable and, at a previous court proceeding against the same defendant, has given testimony that was subject to cross-examination." (People v. Cromer (2001) 24 Cal.4th 889, 892 (Cromer).) "Pursuant to this exception, the preliminary hearing testimony of an unavailable witness may be admitted at trial without violating a defendant's confrontation right. [Citation.]" (People v. Herrera (2010) 49 Cal.4th 613, 621 (Herrera).)
"In California, the exception to the confrontation right for prior recorded testimony is codified in [Evidence Code] section 1291, subdivision (a), which 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.' A witness is unavailable if '[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, subd. (a)(5).) Although section 240 refers to 'reasonable diligence,' [our Supreme Court] has often described the evaluation as one involving 'due diligence.' " (Cromer, supra, 24 Cal.4th at p. 898.) "[T]he term 'due diligence' is 'incapable of a mechanical definition,' but it 'connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.' [Citations.] Relevant considerations include 'whether the search was timely begun' [citation], the importance of the witness's testimony [citation], and whether leads were competently explored [citation]." (Id. at p. 904.) " 'Where the record reveals, . . . that sustained and substantial good faith efforts were undertaken, the defendant's ability to suggest additional steps . . . does not automatically render the prosecution's efforts "unreasonable." ' " (People v. Diaz (2002) 95 Cal.App.4th 695, 706 (Diaz).) "The prosecution is not required 'to keep "periodic tabs" on every material witness in a criminal case . . . .' " (People v. Wilson (2005) 36 Cal.4th 309, 342 (Wilson), quoting People v. Hovey (1988) 44 Cal.3d 543, 564.) Nor is the prosecution required, "absent knowledge of a 'substantial risk that [an] important witness would flee,' " to take preventative measures to stop a witness from disappearing. (Wilson, supra, at p. 342.) The requirements to demonstrate due diligence and unavailability under Evidence Code section 240, subdivision (a)(5) and the federal Constitution " 'are the same.' " (Herrera, supra, 49 Cal.4th at p. 622.) Because defendant does not challenge any of the trial court's factual findings made at the due diligence hearing, we "independently review" them to determine whether they demonstrate the requisite due diligence. (Id. at p. 623.)
At the due diligence hearing, the trial court did not require the trial prosecutor to testify in open court. As is permissible, the court accepted the prosecutor's declaration made under penalty of perjury regarding his due diligence efforts. (See People v. Smith (2003) 30 Cal.4th 581, 608 [court accepted district attorney's representation as an officer of the court without requiring him to testify formally]; id. at p. 611[under appropriate circumstances court may consider legally incompetent evidence, such as hearsay, in deciding whether prosecution made reasonable efforts to locate and secure a witness's attendance at trial]; but cf. People v. Green (1963) 215 Cal.App.2d 169, 171-172 [unsworn statement of district attorney was not, standing alone, adequate to establish necessary foundation for the admission of the preliminary hearing testimony of unavailable witness].)
As set forth in the declaration, since the case had been filed in January of 2016, and "for the majority" of the following two years, the prosecution had been in contact with the victim's mother and the victim, both while she was a minor and thereafter when she became an adult in January 2018. When the victim was a minor, her mother was cooperative and communicative with the prosecution. She regularly attended court appearances and did not prevent the prosecution from contacting the victim when necessary. In addition, the trial prosecutor maintained contact with a court appointed advocate to represent the victim concerning the status of the case.
At the April 13, 2016 preliminary hearing, the victim testified pursuant to a subpoena. The court denied the prosecution's request to exclude all potential witnesses (including the mother), and the victim was required to testify in the presence of her mother and defendant. After the preliminary hearing, the trial prosecutor maintained contact with the victim and her mother to update them on the status of the case.
Almost two years later, on December 13, 2017, the district attorney victim services advocate spoke with the victim's mother, who indicated the 17-year-old victim was trying to move on and the mother did not want the victim to testify again. On that same day, the trial prosecutor contacted the victim by telephone. The victim said she did not know when she would next see her mother and did not know when her mother would be available to meet the prosecutor but the victim would call him back and let them know; she did not call.
In mid-December 2017, the trial prosecutor arranged for District Attorney (DA) Investigator Lissette Souza to serve subpoenas on the victim and her mother at their shared residence in San Francisco; the attempts were made on December 19 and 21, 2017 and January 8, 2018. Souza was not able to make contact with anyone at the residence on those three occasions. On December 19, Souza "left an envelope with subpoenas in the mailbox in" the name of the victim's mother. On January 8, Souza noticed that "all mail had been collected from the mailbox."
On January 9, 2018, Souza again attempted to serve subpoenas on the victim and her mother. She also visited the minor victim's school and spoke with a teacher. The teacher reported that the victim's boyfriend said the victim "is a runaway and is no longer attending school." According to the victim's boyfriend, the victim was attending another named high school in San Francisco. According to the teacher, the named high school had no record of the victim.
On January 9, 2018, the trial prosecutor and Souza were also able to reach the victim by text message and telephone. In response to the text message, the victim replied, "I don't want nothing to do with this im [sic] trynna [sic] move on. Thank you." In response to the telephone call, the victim said she had been very uncomfortable testifying at the preliminary hearing because of the types of questions she had been asked and because she had to testify in front of her mother and defendant. She was trying to put the matter in the past and she did not understand why she had to testify again. The trial prosecutor explained that the prosecution was required to prove the charges at a trial. The victim ended the call by saying that, at the trial prosecutor's request, she would think about agreeing to testify and whether she would meet with him and Souza. The victim also confirmed she was still living at her mother's home in San Francisco and had transferred to a new high school in San Francisco that she identified in the telephone call. On January 12, Souza visited the victim's new high school. The school administrators confirmed the victim was enrolled, but could not confirm whether the victim had actually attended the school. Two days later, on January 14, the victim became 18 and her mother could no longer accept a subpoena on her behalf.
On January 17, 2018, Souza spoke with the now 18-year-old victim on the telephone and asked her to accept a subpoena in person. The victim offered her email address to Souza for receipt of the subpoena and Souza asked the victim to confirm receipt. While Souza emailed the subpoena to the identified email address, the victim did not respond in any manner.
The trial prosecutor reported on additional attempts to serve subpoenas or otherwise contact the victim and her mother: On January 24, 2018, DA Investigator Karin Shaw attempted to serve subpoenas on the victim and her mother at their home in San Francisco, but Shaw was unable to contact them. "On January 25, 2018, [the trial prosecutor] sent another subpoena to the victim, asking her to let [him] know she received it and to let [him] know whether she had decided whether to testify. She did not respond. [¶] On January 29, 2018, at approximately 5:30 p.m., another attempt was made to personally serve subpoenas on [the victim's mother] and the victim at their last known residence. No contact was made. Neither [the victim's mother] nor the victim have responded to calls or emails."
The trial prosecutor concluded his declaration, executed on February 1, 2018, by noting that, "[a]t this time, the People have no information confirming that the victim is currently enrolled in and attending a school in San Francisco. Therefore, there is no known location at which to serve a subpoena other than the last known address for the victim. [¶] . . . In an abundance of caution, [the trial prosecutor] . . . issued a subpoena to the San Francisco Unified School District requesting confirmation of whether the victim is currently enrolled and attending a San Francisco public school. The School District intends to provide the requested information to the court on Wednesday, February 7, 2018."
At the due diligence hearing held on February 7, 2018, the trial prosecutor called as witnesses the two DA Investigators who had made unsuccessful efforts on December 19 and 21, 2017, and January 8, 9, 17, and 24, 2018, to secure the victim's attendance at the trial.
DA Investigator Souza testified to her attempts to serve subpoenas in Decemver 2017 and on January 8, 2018. On December 19 at 2:43 p.m., Souza went to the San Francisco residence ("the residence") where the victim lived with her mother. Souza described the dwelling as "a two-story" residence; "[t]here is your usual San Francisco kind of style home where, . . ., the gate is downstairs, and you go upstairs. . . . [B]ased on [the investigator's] knowledge of how the homes look in San Francisco, you would reach upstairs and there would be a door that you would knock on." Because the entire dwelling was behind a locked gate and there was no response, Souza could not gain entry but was able to leave trial subpoenas for the victim and her mother in the mailbox in an envelope addressed to the victim's mother. On December 21 at 1:30 p.m., Souza returned to the residence, again could not gain entry, and left another set of subpoenas in the mailbox, which still contained the envelope she had left on the earlier visit. On January 8, 2018, at 9:05 a.m., Souza again returned to the residence, but did not observe any movement or other indication of people in the house. She looked in the mailbox and noticed that the previously placed envelopes containing the subpoenas were no longer in the mailbox.
On January 9, 2018, once at 10:40 a.m. and again at noon, Souza returned to the residence of the victim and her mother. Both times Souza knocked "on the door" but no one responded. On that same day, Souza made telephone contact with both the victim's mother and the victim. During the call to the victim's mother, Souza introduced herself, stated the reason for the call, and asked if she could meet the victim's mother to serve the subpoena. When the victim's mother replied she was not in town, Souza provided the court date and the mother replied she would not be able to appear due to scheduled surgery. Souza asked if she could call back, together with the trial prosecutor, to discuss the status of the case, and the victim's mother replied, "Sure." The later call to the victim's mother went to voicemail and the trial prosecutor and Souza left a message to call them back to talk about the case. The victim's mother did not reply. The trial prosecutor and Souza were both parties to the call made to the victim. The trial prosecutor told the victim that the case was going to trial. The victim replied that she wanted to be left alone, did not want to come to court because she had been very uncomfortable testifying in front of her mother and defendant, and she "wanted to move on." The victim confirmed she was still living at the residence with her mother and she gave the investigator the name of her current high school. On January 12, Souza visited the high school mentioned by the victim. The assistant principal confirmed the victim's enrollment and told the investigator to seek further information by contacting the school district.
Thereafter, on January 17, at 4:20 p.m., Souza again attempted to serve a subpoena on the now 18-year-old victim at the residence. Three minutes later, while Souza was just outside the residence, she reached the victim by telephone. Souza asked to meet with the victim to serve her with a subpoena. The victim said she was not at home, "she was far." Souza offered to go to the victim or wait at the residence. The victim replied she was not going to be at the residence "for a long time," she was "pretty far away," and she did not know when she was coming home. Souza then asked if she could email the subpoena to the victim and the victim said "sure," and gave the investigator her email address. Souza asked the victim to respond back via email or by telephone to confirm that she had received the subpoena, but the victim never responded to the investigator's email. At the time of the hearing, Souza had no additional addresses for the victim, or any information about any schools at which the victim could be located.
DA Investigator Karin Shaw testified that, on January 24, 2018 at approximately 9:00-9:10 a.m., she attempted to serve subpoenas on the victim and her mother at their residence. Shaw was able to reach the front door of the upstairs unit in which the victim and her mother resided. After knocking several times at the only front door to the unit, Shaw left after five minutes.
The court also admitted into evidence the response to the subpoena served on the San Francisco Unified School District in which the victim said she was attending high school. The response indicated that since attaining the age of 18 the victim had been enrolled at the high school she had mentioned in her January 9 telephone call with the trial prosecutor and Souza. The court further held, however, that it could "infer from the record[s] [sent] that there is no information that she attended, in that the attendance profile indicates that she was not actually present, albeit enrolled. It gives an A, which the code - the key says is absent."
In finding the prosecution had met its burden of demonstrating the victim was not available to appear at trial, the trial court was "persuaded" by the testimony of the DA Investigators that they had acted with due diligence in attempting to serve a subpoena on the victim "when she was a minor on her own and through the mother [albeit] unsuccessfully. They tried leaving subpoenas in the mailbox, they tried e-mailing, they tried numerous times to communicate with the young person through e-mail and through texting, which seems to be the preferred method of communication among youth today. [¶] And even when the young person was no longer a minor, continued to make efforts to serve her. And despite those efforts not being done prior to 8:30 in the morning or after 5:30 in the evening, based upon the number of efforts, as well as the responses given by the young person, in that she gave the inspector her e-mail address, saying, 'Yes, you could send it here,' but didn't respond having received it[,] . . . and going to the school, a couple of schools, the Court does find that was due diligence in these circumstances to serve [the victim] with a subpoena and she is unavailable."
Based on our independent review of the record, we agree the prosecution met its burden of demonstrating due diligence in attempting to secure the victim's appearance at trial. The record shows the location of the victim and her mother was known to the prosecution for service of a subpoena in connection with the preliminary hearing, and the victim appeared pursuant to that subpoena. Thereafter, the district attorney's office maintained contact with the victim and her mother for the better part of two years. About six weeks before the scheduled trial date of February 1, 2018, the trial prosecutor employed DA Investigators to serve both the still minor victim and her mother with subpoenas to appear at the trial. Over the next several weeks, the DA Investigators unsuccessfully attempted to personally serve the subpoenas; one investigator left copies of the subpoenas at the residence where the victim was known to reside with her mother in San Francisco, and, later found that those subpoenas were removed from the mailbox. Additionally, both the trial prosecutor and Souza were able to reach the victim by text message and telephone calls to inform the victim that her appearance was required at the trial. While the victim at first said she did not want to again testify, she later indicated she would think about testifying at the trial during a January 9 telephone call with the trial prosecutor. In a later telephone call on January 17, Souza was able to secure an email address from the adult victim and a subpoena was emailed to the victim, but she did not respond. And, despite later attempts made by the trial prosecutor, neither the victim nor her mother responded to emails or telephone calls.
We are not persuaded by defendant's argument that the prosecution's due diligence efforts were insufficient because the attempts to personally serve a subpoena on the victim and her mother were only made during the daytime and on weekdays. (See, e.g., People v. Salas (1976) 58 Cal.App.3d 460, 470-471 [where prosecution's attempts to serve subpoena on witness were all made during daytime at the witness's home, the appellate court rejected defendant's contention that due diligence required the prosecution to conduct a surveillance of the witness's home during the nighttime hours in an effort to catch him at home in the absent of evidence that the witness would have been available at a particular nighttime hour]; see also People v. Cogswell (2010) 48 Cal.4th 467, 474, 477-479 (Cogswell) [Supreme Court held prosecution was not required to invoke statutory provisions permitting sexual assault victim to be taken into custody in Colorado and transported to California if it wished to prove its due diligence in securing the victim's presence at defendant's trial].) Moreover, the prosecution here did not only attempt personal service of the subpoena. Copies of subpoenas were left in the victim's mailbox and were no longer in the mailbox some days thereafter. The subpoena was also emailed to the adult victim at the email address she provided to Souza. In the victim's text message and telephone conversation she indicated she was very uncomfortable testifying at the preliminary hearing and did not want anything to do with the case. On this record, "we conclude not only that the prosecution demonstrated due diligence in trying to secure [the victim's] presence at trial, but also that it is fairly clear [the victim] purposely made herself unavailable because she was unwilling to testify." (Diaz, supra, 95 Cal.App.4th at p. 706; see Cogswell, supra, 48 Cal.4th at p. 479 [having spoken to the sexual assault victim personally, the prosecutor was "in the best position to assess the strength of her determination not to testify at defendant's trial," and "[b]ased on that assessment, the prosecutor could reasonably conclude that invoking" provisions to take the victim into custody in Colorado and transport her to California "would not have altered [the victim's] decision not to testify again about the sexual assault, and thus it would have been a waste of time and resources"].)
Nor are we persuaded by defendant's contentions that the prosecution should have attempted to serve a subpoena on the victim at her high school once she became an adult or contacted known relatives about her whereabouts. As the trial court noted, the high school records indicated that although the 18 year old victim was enrolled at the school, her attendance profile indicated she was "absent." "That additional efforts might have been made or other lines of inquiry pursued," does not affect our conclusion that the prosecution used "reasonable efforts to locate the witness." (People v. Cummings (1993) 4 Cal.4th 1233, 1298, abrogated on another ground in People v. Merritt (2017) 2 Cal.5th 819, 831.)
In sum, based on our independent review of the record, we conclude the totality of the circumstances demonstrates that the prosecution acted reasonably and exercised due diligence to secure the victim's attendance at trial. Because the victim was constitutionally unavailable, the trial court did not err in allowing portions of her preliminary hearing testimony to be admitted into evidence and read to the jury. In light of our decision, we do not address the parties' harmless error arguments.
DISPOSITION
The judgment is affirmed.
/s/_________
Petrou, J. WE CONCUR: /s/_________
Fujisaki, Acting P.J. /s/_________
Wick, J.
Judge of the Superior Court of Sonoma County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.