Opinion
NOT TO BE PUBLISHED
Appeals from Sonoma County Super. Ct. No. SCR-473693.
NEEDHAM, J.
Appellant Nathan Matthew Evert was found guilty after a court trial on one count of dissuading a witness from testifying (Pen. Code, § 136.1, subd. (a)(2)), and he was also found guilty of four more counts alleging misdemeanor violations of a restraining order. (Pen. Code, § 273.6, subd. (a).) Appellant was granted probation. He subsequently admitted a violation of probation, and was reinstated on probation, after his probation was revoked. In these consolidated appeals, he appeals from both the original conviction and the probation revocation finding, contending: (1) the admission into evidence at the court trial of a transcript of the preliminary hearing testimony of the complaining witness violated his right to confrontation; and (2) the trial court erred by denying his motion made during the course of the trial to again be represented by counsel, after the court had previously accepted his demand that he be allowed to represent himself. We find merit in appellant’s first argument, but we also find the error was harmless in this case. We reject appellant’s other contention, and affirm.
I. FACTS AND PROCEDURAL HISTORY
Appellant had a romantic relationship with the victim, referred to here as Jane Doe. They became co-habitants for a time, until appellant became abusive, and Doe obtained a court order forbidding him from contacting her. On September 15, 2005, appellant was arrested and jailed for battery on a co-habitant, Doe, and violation of the restraining order.
After appellant was arrested and jailed, he contacted the victim by telephone from the jail on several occasions in late September of 2005. The calls were recorded by the jail, and transcripts of the calls show that appellant repeatedly sought to dissuade the victim from testifying against him.
Appellant was then charged with one count of dissuading a witness from testifying (Pen. Code, § 136.1, subd. (a)(2)), and four more counts, alleging misdemeanor violations of a restraining order. (Pen. Code, § 273.6, subd. (a).)
A preliminary hearing was held on October 24, 2005, and Doe appeared and testified against appellant. In that testimony, she recounted her prior relationship with appellant, his abusive conduct, and his attempts to contact her and dissuade her from testifying.
Appellant later waived his rights to a jury trial, and the matter proceeded to a court trial. The victim did not appear to testify again at trial, despite efforts by the prosecution to subpoena her and persuade her to testify. The trial court found she was unavailable to testify at trial, due to her “fears and concerns” as a result of threats by appellant. Her preliminary hearing testimony was therefore admitted into evidence.
The trial court also heard testimony from two live witnesses, Zioberio Rivera and Christopher Schillings. Rivera testified that he worked for the Sonoma County Sheriff’s Office, and was familiar with the system used for the monitoring and recording of telephone calls from the Sonoma County jail. Appellant made multiple calls to the victim from the jail, and the calls were recorded. One of the calls was a call of almost 14 minutes on September 26, 2005, and there was also a call of almost 26 minutes on the preceding day, and a call of about five minutes on the day before that.
Officer Schillings testified that the victim reported appellant was calling her from the jail, in violation of the restraining order, and was threatening her. Schillings investigated the matter, and listened to recordings of the calls, in which appellant had attempted to dissuade the witness from testifying against him. Transcripts of the recorded calls were placed into evidence, and appellant stipulated that the male voice on the recordings was his. These transcripts show numerous attempts by appellant to dissuade the witness from testifying. The trial court found appellant guilty as charged.
Appellant was subsequently granted probation.
Appellant later admitted a probation violation. One of his conditions of probation had forbidden him from contacting the victim, but he had again done so, about a week after being placed on probation. Appellant’s probation was revoked, and he was then reinstated on probation. In these consolidated appeals, he appeals from both the original conviction and the probation revocation finding, although he does not raise any issues that specifically concern the probation revocation finding.
II. DISCUSSION
A. CONFRONTATION ISSUE
Appellant first argues that his constitutional right to confrontation was violated, when the trial court admitted into evidence the transcript of the victim’s testimony at the preliminary hearing. He contends the trial court erred in finding the victim unavailable to testify, and the court violated his constitutional right to confront this witness under Crawford v. Washington (2004) 541 U.S. 36 (Crawford) by admitting this hearsay evidence of her prior testimony.
In Crawford, supra, the United States Supreme Court overruled its prior rule articulated in Ohio v. Roberts (1980) 448 U.S. 56, 66, that admission of a witness’s out-of-court statement does not violate the confrontation clause of the federal Constitution if the witness is unavailable, and the statement falls within a “firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness.” (See also Idaho v. Wright (1990) 497 U.S. 805.) Under Crawford, testimonial statements of an absent witness may be admitted “only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” (Crawford, supra, 541 U.S. at p. 59.)
Appellant does not dispute that he was present at the preliminary hearing and that his counsel cross-examined the victim extensively during her testimony at that hearing. Appellant does however dispute whether the victim was properly found to be unavailable, under the terms of Evidence Code section 240, to testify at the trial.
Evidence Code section 240, subdivision (a) provides, in relevant part, that a witness is unavailable if the witness is: “(5) Absent 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.”
As to this issue of unavailability, our standard of review involves a two-step process. (People v. Cromer (2001) 24 Cal.4th 889, 900-901 (Cromer).) First, we determine the historical facts, which is a review of the prosecution’s efforts to locate the witness. Where the historical facts are in dispute, we apply a deferential standard. (Ibid.) As to the ultimate legal issue of whether those historical facts could justify a finding of due diligence, we apply independent review. (Id. at pp. 893, 901.)
The record shows that despite being subpoenaed, and despite efforts by the prosecutor’s office to persuade her to appear, the victim declined to testify due to her “fears and concerns” about appellant. Specifically, the victim had stated to an investigator who was urging her to appear and testify: “She said that she was not coming to court. That she was not going to testify. She said that she thought a lot about it and she said I might need one year I might need two years but she says if she testifies she knows he is going to kill her and she says nobody cares about her and she’s not going to come to court.”
Appellant contends that the prosecution did not show due diligence, because Doe was not subjected to measures such as compulsory attendance at a domestic violence program, or community service, in order to persuade her to testify. (See Code of Civ. Proc., § 1219, subd. (c).) The record before us does not include any evidence showing why such measures were not attempted in the present case. In the absence of any such evidence, and in light of the independent review we must exercise as to the ultimate issue of due diligence, we cannot find that the prosecution exercised due diligence in this regard. (Cromer, supra, 24 Cal.4th at pp. 900-901; see also People v. Sul (1981) 122 Cal.App.3d 355, 364-365 [requiring “reasonable steps to induce the witness to testify unless it is obvious that such steps would be unavailing”].)
However, even though the prior testimony by the victim should have been excluded, the Attorney General argues that in this particular case the error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Here, the phone calls showing contact with Jane Doe and appellant’s attempts to dissuade her from testifying had been recorded, and transcripts were prepared and admitted into evidence. Appellant also stipulated that his voice was the male voice on the recordings. Thus, there was other overwhelming evidence in the record demonstrating appellant’s guilt on these charges.
Appellant does not specifically respond in his reply brief to the Attorney General’s argument regarding harmless error. Appellant also does not point to any element of the offenses that could have remained in doubt, in light of the admission into evidence of the transcripts of the telephone calls. Those transcripts showed that appellant contacted the witness, which he was forbidden to do by a restraining order. These transcripts of the telephone calls also showed that appellant sought to dissuade the witness from testifying. Thus, there is no reasonable doubt that the trial court would have made the same finding of guilt as to contacting the victim and dissuading her from testifying, even if the victim’s prior testimony at the preliminary hearing had not been admitted into evidence. (Chapman, supra, 386 U.S. at p. 24; see also People v. Houston (2005) 130 Cal.App.4th 279, 295-296.) Consequently, we find this error was harmless.
The People also argue that appellant forfeited any constitutional right to confront the victim at trial, by dissuading her from testifying and threatening her if she testified. Appellant however contends this issue of his forfeiture of the right to confrontation was waived by the People in the trial court, because the issue of such a forfeiture was not explicitly raised in the trial court. However, in the present case we need not determine the forfeiture question, because we have found the confrontation clause error to be harmless in any event.
B. SELF-REPRESENTATION ISSUES
Appellant next contends the trial court abused its discretion by denying his motion made during the course of the trial to again be represented by counsel, after the court had previously accepted his demand that he be allowed to represent himself at trial. We reject this contention.
The procedural history relevant to this claim is as follows. Appellant was originally represented by the Public Defender, which represented appellant at the preliminary hearing. Later, appellant asserted his right under Faretta v. California (1975) 422 U.S. 806, 834-835, to represent himself at trial. The trial court was required to honor that right, and did so. Thus, appellant’s right to counsel was not violated; appellant waived that right when he asserted his right to represent himself. (See ibid.)
Still later, however, in the course of the trial, appellant had second thoughts, and he sought to have the trial court reappoint his former defense counsel to again represent him. The trial court initially indicated it intended to grant the request, which it would take up the following morning, when defense counsel was again present in the courtroom.
However, on the following day, December 20, 2005, defense counsel stated that he did not feel he should be reappointed if the matter was in the middle of trial, and he would therefore probably seek a mistrial. Further, counsel argued that if he was reappointed, he required time to re-prepare and get back up to speed on the case, and he requested preparation of a transcript of the trial so far. The trial court agreed, but the prosecution noted that appellant would be required to waive time in order to grant the request, because his right to a speedy trial would expire on January 7, 2006. The court then asked appellant to waive time until January 9, 2006, and for an additional 60 days from that date, in order to accommodate the request for reappointment of counsel. However, appellant refused to waive time in order to accommodate the request. The trial court then denied appellant’s request to reinstate his prior defense counsel.
We find no abuse of discretion under the totality of the circumstances. (See People v. Gallego (1990) 52 Cal.3d 115, 164-165 (Gallego).) The request came only after the trial had already begun. A granting of the request would risk a mistrial and would obviously entail a considerable delay. Appellant also refused to waive time to allow his request to be accommodated, thereby suggesting he was simply playing games with the court. Under these circumstances, it was not an abuse of discretion to deny the request for reappointment of defense counsel during the trial. (Ibid.)
Appellant now claims his refusal to waive time should have been excused, because he was being asked to waive time for an additional 60 days after January 9, a waiver of time that he now suggests was too long. However, this waiver of time for 60 days appeared reasonably necessary to accommodate appellant’s own request to be represented again at trial, the request of his defense counsel that he have time to prepare for the case again, time to have a transcript prepared, and time to file and rule upon a mistrial motion. Thus, a waiver of time until January 9, 2006, and for 60 days thereafter, was a reasonably necessary condition to allow appellant’s request to be granted, under these circumstances. Appellant did not propose any other course, or some shorter period of time waiver, and instead he simply refused to waive the time that appeared necessary to grant his own request. Under the totality of the circumstances, this does not show any abuse of discretion. (See Gallego, supra, 52 Cal.3d at pp. 164-165.)
Finally, once again, any error in this respect was harmless. The evidence introduced at trial included evidence of recorded telephone calls in which appellant contacted the victim and tried to dissuade her from testifying. That evidence was admitted, prior to the time appellant sought to have the trial court reappoint counsel for him. In light of that evidence, the trial court’s refusal to reappoint counsel to represent appellant for the remainder of the trial could not have affected the ultimate outcome. Any error in this respect was therefore not prejudicial, whether if analyzed under People v. Watson (1956) 46 Cal.2d 818, 836, or if analyzed for cumulative prejudice under Chapman, supra, 386 U.S. at p. 24.)
III. DISPOSITION
The judgment of conviction is affirmed.
We concur. JONES, P. J., GEMELLO, J.