Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA313044, Jose I. Sandoval, Judge.
Lawrence R. Young, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Kevin Escobar challenges his conviction for corporal injury to Christbel Martinez and assault with a deadly weapon by means likely to produce great bodily injury on Martinez. Escobar argues that his right to confront Martinez was violated and that his counsel rendered ineffective assistance in failing to ask Martinez additional questions during the preliminary hearing. We find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Information
Escobar was charged with corporal injury to Christbel Martinez, the mother of his two children (Pen. Code, § 273.5, subd. (a)), assault by means likely to produce great bodily injury (§ 245(a)(1)), criminal threats (§ 422), unlawful firearm activity (§ 12021, subd. (c)(1)), and possession of a firearm by a felon (§12021, subd. (a)(1)).
Undesignated statutory citations are to the Penal Code.
Initially, there were additional charges. The assault with a firearm charge and a false imprisonment charge were dismissed in the interest of justice. A jury could not reach a verdict on murder, attempted murder, and assault with a firearm. Upon retrial, appellant was acquitted of the murder and attempted murder. Three additional counts of attempted murder were dismissed in furtherance of justice.
2. March 2006 Interview with Martinez
On March 7, 2006, Officer Teodoro Urena interviewed Martinez and secretly tape-recorded the interview. During that interview, Martinez stated that she had known Escobar, the father of her two children, for eight years. Martinez told Urena that the day before Escobar accused her of cheating on him and “socked” her with his right hand. When Martinez denied the accusations, Escobar punched her on her back and in her face, hitting her more than 10 times. Escobar told Martinez he would kill her if she did not tell him the truth about cheating on him. Escobar grabbed his gun, continued to hit Martinez, and ordered her to tell the truth. He pointed the gun at her three times. After telling Martinez he would give her a “make over,” Escobar cut her hair.
3. Martinez’s Preliminary Hearing Testimony
On January 4, 2007, Martinez testified at the preliminary hearing and recanted all accusations leveled during the March 7, 2006 interview. Martinez recognized pictures of her depicting numerous injuries, but she testified that she could not recall how she received any of the injuries. She was unable to recall the injuries to her eye, her nose, her cheek, or her arm. She did not recall whether Escobar ever accused her of cheating. She never saw Escobar with a gun, and she testified that he never threatened to kill her. Escobar never hit her or punched her, and she did not remember if he ever yelled at her. Although she recognized her voice on tape, she did not remember her prior statements to Urena indicating that Escobar had hit her more than 10 times and threatened her with a gun.
During cross-examination, Martinez was asked if she was on medication at the time Urena interviewed her. She answered affirmatively, and she further testified that she believed she had taken Vicodin. Martinez testified that she suffered the injuries depicted in the pictures when two unknown people attacked her. Martinez also testified that she informed an officer of this during an interview at the hospital before speaking with Urena. Martinez answered affirmatively the following question: “You told the officer that a person approached you from behind and began punching your face and screaming profanities at you, correct?” She also indicated she had said “[t]hat a person punched you until you fell to the ground” and another person stood by. At the prosecutor’s request, the court continued Martinez’s bail at the conclusion of the preliminary hearing.
4. Martinez Failed to Appear to Testify During Trial and Was Found Unavailable
On May 15, 2007, Martinez appeared and was ordered to return on July 9, 2007. On July 9, she appeared and was ordered to return on July 17, 2007. On July 17, she failed to appear, and the court issued a body attachment.
On July 31, 2007, the court held a hearing to determine whether Martinez was unavailable. To make that finding, the court was required to assess whether the prosecution used reasonable diligence to procure Martinez’s presence at trial. A witness is unavailable if the witness 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, subd. (a)(5).) Two witnesses testified regarding efforts to procure Martinez’s presence
Officer Urena arrested Martinez to assure her appearance at the preliminary hearing. After the preliminary hearing, he kept in touch with Martinez and her family. On July 19, 2007, he tried to reach Martinez at her mother’s house and spoke to someone in Martinez’s uncle’s household. Urena learned that Martinez was living with her mother, and Urena went there to look for Martinez. When he arrived, Martinez’s mother advised Urena that Martinez had moved out a week earlier and that Martinez did not want to be involved in the proceedings. On cross-examination, Urena acknowledged that he waited two days after Martinez’s nonappearance to start looking for her, but he explained the delay was caused by two new homicide cases, which demanded his immediate attention. Urena testified that he had conducted a stakeout to secure Martinez’s presence before the preliminary hearing.
Richard Collins, an investigator, took over the search for Martinez from Urena. Collins was contacted by the prosecutor on July 23 after Urena was unsuccessful in finding Martinez. Collins checked computer databases to look for additional addresses or contact information. He went to the elementary school where he believed Martinez’s children were enrolled and when he found her children were not there, he went to another elementary school in the area. Collins also went to Martinez’s mother’s home, and Martinez’s mother told him that she had not seen Martinez for one to one and a half weeks. Collins asked Martinez’s mother for phone numbers where Martinez was staying, but Martinez’s mother provided no information. Collins then went to Escobar’s parents’ apartment where he spoke to the apartment manager (who also was Escobar’s cousin). The apartment manager confirmed that Martinez was living with her mother. Collins tried to contact Martinez’s father, but his phone number was not in service. Collins twice checked to see if Martinez was in jail, but learned she was not incarcerated. He confirmed that she was neither employed nor receiving welfare. Collins questioned other residents at the apartment building where Escobar’s parents lived, but they had not seen Martinez for a month. When those efforts were unsuccessful, he spoke to Martinez’s mother another time and tried to contact Martinez’s other relatives, but received no information regarding Martinez’s whereabouts. Collins did not conduct a stakeout of Martinez’s mother’s residence.
The court found that the prosecution had used due diligence to secure Martinez’s presence.
5. Trial
Martinez’s testimony from the preliminary hearing was read, and the tape of her interview with Urena was played.
Urena testified at trial that he was aware Martinez had made a statement that two people attacked her on the street. He testified that when he interviewed her she appeared lucid and did not appear intoxicated. When Urena interviewed Martinez, her injuries were still visible including bruising and bite marks. Urena also testified that Martinez’s family had informed him Martinez’s injuries were caused by Escobar.
Detective Janine Manji was present during Urena’s interview of Martinez. Manji testified that Martinez was alert and lucid. Manji was aware that Martinez had initially reported being attacked by two people in front of her home.
6. Judgment
The jury found Escobar guilty of corporal injury to Martinez, assault with a deadly weapon by means likely to produce great bodily injury on Martinez, criminal threats, unlawful firearm activity, and possession of a firearm by a felon. The court sentenced Escobar to 15 years in state prison. Escobar timely appealed. On appeal, he challenges only his conviction for corporal injury on Martinez and assault by means likely to produce great bodily injury on Martinez.
DISCUSSION
1. The Trial Court Correctly Admitted Martinez’s Preliminary Hearing Testimony
Escobar argues the trial court erred in finding that Martinez was unavailable as a witness. The crux of his argument is that the prosecution did not exercise due diligence in trying to procure Martinez’s appearance at trial as required by Evidence Code section 240. Accordingly, Martinez’s preliminary hearing testimony was inadmissible, and its improper admission violated his right to confront Martinez as secured by both the state and federal constitutions. We independently review the trial court’s determination that the prosecution has been reasonably diligent. (People v. Bunyard (2009) 45 Cal.4th 836, 855 (Bunyard).)
“‘The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution’s witnesses. [Citations.] 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. Under federal constitutional law, such testimony is admissible if the prosecution shows it made “a good-faith effort” to obtain the presence of the witness at trial.’ [Citations.]” (Bunyard, supra, 45 Cal.4th at pp. 848-849.) “‘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,” this court has often described the evaluation as one involving “due diligence.”’ [Citation.]” (Id. at p. 849.)
In Bunyard, the California Supreme Court recently applied the foregoing principles to a case very similar to this one. Bunyard involved the challenged testimony of a witness who had testified in one trial and had received a subpoena to procure his presence at a second trial. (Id. at p. 847.) When he did not respond to the subpoena, the court issued a bench warrant for his arrest. (Ibid.) The witness was located and, following a hearing, the court released him on his own recognizance. (Ibid.) He returned to court twice, but the third time he was ordered to return, he failed to appear. (Id. at p. 848.) Officers’ efforts to procure his presence during the second trial included: repeatedly checking his last known address; putting out a “be-on-the-lookout-for” bulletin; attempting to contact his relatives; checking jails and hospitals; checking locations where he was likely to be; and checking with his associates. (Id. at p. 855.) After comparing cases in which efforts to secure a witness’s attendance had been deemed inadequate with those in which the diligence had been found sufficient, the court concluded that “[t]he People’s efforts in the present case decidedly resemble the extensive efforts made in the latter group of cases.” (Id. at p. 856.) Accordingly, the high court held “that the trial court did not err in determining that the prosecution had been reasonably diligent in attempting to locate [the witness], that the trial court properly deemed him to be unavailable, and that his testimony from the [prior proceeding] was properly admitted.” (Id. at p. 856.)
Like the witness in Bunyard, Martinez had been brought to court once, following her arrest, after which she voluntarily appeared on two occasions and failed to appear on a third. The efforts to secure Martinez’s presence at trial were at least as extensive as those held sufficient in Bunyard and demonstrated due diligence. Urena made several phone calls to determine where Martinez was living and then went to her last known address. Collins took over the search for Martinez, checking computer databases and jail records for information on Martinez’s location. He went to two elementary schools, and made multiple visits to the homes of Martinez’s mother and Escobar’s parents. He also tried to contact Martinez’s relatives to learn her whereabouts, but the only information he received was that she was living with her mother.
Contrary to Escobar’s argument, officers were not required to conduct a stakeout. “That additional efforts might have been made or other lines of inquiry pursued does not affect [a] conclusion [of due diligence]. [Citation.] It is enough that the People used reasonable efforts to locate the witness.” (People v. Cummings (1993) 4 Cal.4th 1233, 1298.) In addition, as in Bunyard, it is relevant that Martinez appeared twice voluntarily, suggesting that she would appear a third time. The trial court correctly concluded the prosecution exercised due diligence and properly admitted Martinez’s testimony from the preliminary hearing.
2. Appellant Fails to Show Trial Counsel Rendered Ineffective Assistance
Escobar argues he was denied effective assistance of counsel at the preliminary hearing because his attorney failed to conduct an in-depth cross-examination of Martinez. More specifically, according to Escobar, his attorney should have asked Martinez why she modified her statement that two unknown assailants attacked her and instead told Urena that Escobar had injured her.
“To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings. [Citations.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” (People v. Cunningham (2001) 25 Cal.4th 926, 1003 citing Strickland v. Washington (1984) 466 U.S. 668, 687-694.) “[I]n assessing a Sixth Amendment attack on trial counsel’s adequacy mounted on direct appeal, competency is presumed unless the record affirmatively excludes a rational basis for the trial attorney’s choice. [Citations.]” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260, italics omitted.)
“‘“Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’” [Citations.]... In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions. [Citations.]’” (People v. Jones (2003) 29 Cal.4th 1229, 1254.) “‘[O]n appeal, a conviction will be reversed on the ground of ineffective assistance of counsel “only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission”’” (Ibid., citing People v. Fosselman (1983) 33 Cal.3d 572, 581.) “A defendant who raises the issue [of ineffective counsel] on appeal must establish deficient performance based on the four corners of the record.” (People v. Cunningham, supra, 25 Cal.4th at p. 1003.)
Escobar demonstrates neither deficient conduct nor prejudice. Contrary to Escobar’s assertion, his counsel at the preliminary hearing conducted an in-depth cross-examination of Martinez. Counsel effectively questioned Martinez, eliciting not only that Escobar was not responsible for her injuries but that she was medicated at the time of her interview with Urena. That he declined to ask Martinez to explain her changed story is likely attributable to competent lawyering. There is no indication Martinez herself had an explanation, as she denied even recalling telling Urena the version of events recorded on the tape. The record defense counsel developed on cross-examination left him free to argue at trial that (a) Martinez’s original story given at the hospital was likely more credible, and (b) Martinez was under the influence of medication when she spoke to Urena. Escobar has not shown deficient performance.
In closing argument defense counsel did just that, arguing that Martinez’s “first statement... to medical personnel... probably has the most credibility,” and that “she was under pain medication before her interview with Mr. Urena and Detective Manji.”
Additionally, Escobar demonstrates no prejudice from any allegedly deficient conduct. The record reveals no additional available evidence that would have assisted Escobar. The record contains no evidence that Martinez fabricated the allegations of Escobar’s abuse as she reported them to Urena. In short, Escobar demonstrates no reasonable probability that a lengthier cross-examination at the preliminary hearing would have led to a different outcome.
DISPOSITION
The judgment is affirmed.
We concur:, EPSTEIN, P. J., WILLHITE, J.