Opinion
D069509
02-22-2017
THE PEOPLE, Plaintiff and Respondent, v. BILLY R. FAIRCLOTH, Defendant and Appellant.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD262107) APPEAL from a judgment of the Superior Court of San Diego County, Lorna A. Alksne, Judge. Affirmed. Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
At a retrial, Billy Faircloth was convicted by a jury of one count of robbery. (Pen. Code, § 211; statutory references are to this code unless noted.) A previous jury convicted him of a related animal cruelty count but was unable to reach a verdict on the robbery charge, causing a mistrial to be declared and the retrial scheduled. (§ 597, subd. (a).) In other hearings, the court found true numerous allegations of prior offenses, including three strike priors. (§ 667, subds. (b)-(i).) At sentencing, the trial court struck two of the strike priors and imposed a total term of 26 years four months in prison.
Faircloth appeals, contending the trial court erred at the retrial by admitting testimony given at the first trial by the robbery victim, Luis Santiesteban, who was no longer available to be served. He argues the prosecution failed to exercise reasonable diligence in trying to locate or subpoena Santiesteban a second time. (People v. Fuiava (2012) 53 Cal.4th 622, 675 (Fuiava) ["reasonable diligence" in this context is equivalent to "due diligence"].)
Faircloth also contends that based on his courtroom behavior and letters to the court, it was error not to suspend the proceedings to determine his mental competence to stand trial. (§ 1368.) The record does not support any conclusion that the trial court erred or abused its discretion in either of these respects, and we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
Faircloth does not challenge either the admissibility or the sufficiency of the evidence to support his convictions. At the retrial, the testimony of witness Santiesteban was read to the jury in a redacted form that omitted details about the animal cruelty offense, since it was no longer at issue. We next summarize the facts about the robbery offense to provide background for his challenges to the procedures used at the retrial.
At the time of the incident on the evening of May 18, 2015, Faircloth was a homeless 43-year-old man who was traveling between a park and the place where he usually slept outside. Santiesteban testified about the incident on both direct and cross-examination, stating that at about 9:00 p.m. that day, he had his small dog on a leash and they were coming back from a walk to a downtown San Diego ATM. Santiesteban withdrew $40 and was holding the money, his wallet and phone in his hands while he walked along and looked at Facebook on the phone. He suddenly became aware that Faircloth was walking along and bumping into him, by stepping on and getting tangled up in the dog's leash.
Santiesteban testified Faircloth was acting agitated and started calling him names (e.g., faggot). They started yelling and screaming at each other. As Santiesteban tried to disentangle the dog, Faircloth started swinging his open hand at him and Santiesteban swung back. As they fought and fell to the ground, Santiesteban dropped his keys and wallet and his bank cards fell out. Faircloth picked up the wallet and started to run away, but Santiesteban yelled at him to give it back and yanked on Faircloth's backpack to pull him down to the ground. Faircloth was holding on to the dog's leash and using it to swing the dog around.
The fight was attracting attention and several bystanders appeared, taking the dog away from Faircloth and restraining him. Santiesteban was able to recover part of his torn up wallet, but his bankcard, cash and identification cards stayed on the ground next to Faircloth's backpack. Santiesteban grabbed his dog and ran behind a barricade next to the sidewalk while Faircloth pursued him. Someone across the street yelled that the police were being called, and Faircloth started fighting with another man. Less than 10 minutes later, police officers found Faircloth waiting around and smoking a cigarette. Responding officer Kerry Bauman testified that Santiesteban told him Faircloth just robbed him. Faircloth put his hands behind his back and Bauman handcuffed him.
At each of the trials, Faircloth testified about being homeless that night, carrying his sleeping bag draped over him. He encountered Santiesteban and unexpectedly got tangled up in the dog's leash. He said Santiesteban attacked him, then with the assistance of other men, mixed up their property to set up the scene they wanted. He denied robbing Santiesteban or picking up any items from the ground, because he had his own bank account and did not need money. The first jury convicted him of the animal cruelty offense, but a mistrial was declared because it could not reach an agreement on robbery.
In preparation for the retrial, the sheriff's department unsuccessfully attempted to serve a subpoena on Santiesteban. For the next few weeks, the prosecutor's staff attempted to contact him by searching several official databases and eventually obtaining a Florida address, but no contact was established. (See pt. II, post.) Following a hearing on reasonable diligence, the court ruled that a sufficient showing had been made of unavailability to allow his redacted testimony to be read into the record at the retrial. (Evid. Code, § 1291, subd. (a)(2).) After being instructed, the jury convicted Faircloth of robbery.
On the day set for sentencing, the court and counsel discussed whether some of Faircloth's prior convictions should be stricken. Before the hearing was completed, Faircloth got agitated and started screaming about being the victim. The court put the matter over to the next day. Sentence was then imposed in the form of a 10-year term for robbery (the upper term of five years, doubled for the strike prior), and 15 consecutive years for the three serious felony priors. (§§ 667, subd. (a)(1), 668; additional prison priors, § 667.5, subd. (b).) The court imposed a consecutive term for the animal cruelty conviction (one-third of the middle term of 24 months, doubled for the strike prior; § 597, subd. (a)), for a total term of 26 years four months. Faircloth appeals.
II
DUE DILIGENCE SHOWING ON WITNESS UNAVAILABILITY
A. Procedural Context
Faircloth contends the trial court abused its discretion in allowing Santiesteban's testimony from the first trial to be read into the record at the retrial, because the prosecution should have been required to make additional efforts to confirm a Florida address it had just obtained for him, as a key witness. Faircloth argues the prosecution should have utilized the address and the procedures in the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (§ 1334 et seq., "Uniform Act"). (People v. Foy (2016) 245 Cal.App.4th 328, 350 (Foy).) He contends this amounted to reversible error for denial of his right of confrontation under the Sixth Amendment. (Id. at pp. 350-351.)
We evaluate Faircloth's arguments in terms of their procedural context. The first jury rendered its partial verdict on August 6, 2015. On August 12 and 28, 2015, the court held further proceedings on trial of the prior offense allegations and on other motions, and set the matter for trial call on October 1, 2015. At that time, the prosecutor sought admission of Santiesteban's prior trial testimony, and the court deferred the motion to allow testimony to be presented about the diligence of the investigation made into his whereabouts. Two paralegals in the prosecutor's office, Matthew Olay and Ruth Gamboa, described their efforts to locate him as a witness. According to Olay's records, the prosecutor's office began the subpoena process for Santiesteban on August 21, 2015. However, the sheriff's office notified prosecutors in early September that it had been unable to serve him. Olay left messages for Santiesteban twice on the number they had for him but did not receive callbacks. Santiesteban's former landlady told Olay he had moved to Florida without leaving her a forwarding address.
On September 9, Olay began documenting his efforts to find and serve Santiesteban. Olay researched his name on several police databases, including Ewarrant and EJMS for inmate queries, without success. He then ran a driver's license search and obtained the California address appearing on Santiesteban's driver's license. He tried another law enforcement database, SRVERS, which records law enforcement contacts, as well as Accurant, which searches all public records about individuals nationwide. According to Accurant, Santiesteban had possible ties to a Boca Raton, Florida address between August 2006 and May 2015, but no phone number was listed. Olay did not pursue the Boca Raton address further, but made another strongly worded call to the phone number they had for him (no callback). Olay did not threaten him with a warrant because they did not know where to serve it.
Olay learned from the probation department's report that one of its officers had contacted Santiesteban on September 14, and was told he no longer wanted to participate in the trial or sentencing proceedings. Olay did not pursue the probation officer's information further. He asked his colleague Ruth Gamboa to assist in the search. On September 17, she used several other law enforcement data systems to search for Santiesteban's contact information, without success. These included probation records, traffic stop databases, and ARJIS, a system compiling individuals' police contacts. She also searched property records and learned that another Luis Santiesteban with a different middle name and a different birthdate owned property in San Diego County.
After Gamboa's efforts, Olay made other investigations on September 24 by searching the Facebook system. He found three people by that name, two of whom had different middle names. He printed out a picture from one of the accounts to show to prosecutors, but they did not think it was the same person. Accordingly, he did not send any Facebook messages to that person. Olay next sent out written requests to the state employment development department and to the post office for information about Santiesteban, even though the post office requests reportedly took a long time for processing. By the time of the due diligence hearing, no responses had been received to the written requests.
On cross-examination, Faircloth's attorney asked Olay whether his office searched further for the Florida address or contacted Florida prosecutors for assistance, and he said no. Over defense objections, the court ruled that the prosecution had used reasonable due diligence to find Santiesteban, and would be allowed to use his prior trial testimony in his absence. The court noted that the witness apparently did not want anything more to do with the trial, and had already been fully cross-examined. The parties were told to meet and confer on the presentation and redaction of the prior trial transcript.
B. Legal Principles
A criminal defendant has a constitutional right to confront prosecution witnesses, but the right is not absolute. (People v. Cromer (2001) 24 Cal.4th 889, 892 (Cromer).) "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." (Ibid.) We "independently review a trial court's determination that the prosecution's failed efforts to locate an absent witness are sufficient to justify an exception to the defendant's constitutionally guaranteed right of confrontation at trial." (Id. at p. 901.)
Under this due diligence exception, prior testimony of an unavailable witness may be admitted at trial without violating a defendant's rights of confrontation. (People v. Herrera (2010) 49 Cal.4th 613, 621 (Herrera); Foy, supra, 245 Cal.App.4th 328, 341, 348-350; Evid. Code, § 1291, subd. (a)(2).) "A witness who is absent from a trial is not 'unavailable' in the constitutional sense unless the prosecution has made a 'good faith effort' to obtain the witness's presence at the trial." (Herrera, supra, at p. 622.) Evidence Code section 240, subdivision (a) describes an "unavailable" witness as one who 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." (Fuiava, supra, 53 Cal.4th at pp. 675-676 [enough diligence shown where authorities competently pursued the available leads on witness's whereabouts, and began the search two weeks before trial began].)
Reasonable or due diligence is " 'incapable of a mechanical definition,' but it 'connotes the persevering application [of] untiring efforts in good earnest, efforts of a substantial character.' " (Cromer, supra, 24 Cal.4th at p. 904.) Factors to be considered include the timeliness of the search, the importance of the witness's testimony, and whether leads to the witness's possible location were reasonably explored. (Ibid.; People v. Thomas (2011) 51 Cal.4th 449, 500.)
C. Analysis
We examine whether the prosecution, as the proponent of the evidence, carried its burden of establishing due diligence in attempting to locate Santiesteban. (People v. Smith (2003) 30 Cal.4th 581, 609; People v. Cummings (1993) 4 Cal.4th 1233, 1296 (Cummings).) Faircloth mainly argues the prosecutor's staff should have requested forwarding information from the post office as soon as they discovered Santiesteban was not answering his phone and had moved away. Instead of acting when they obtained that information in early September, they waited about three weeks to send out the written requests. If answers had been obtained, prosecutors could have pursued subpoena procedures under the Uniform Act. (Foy, supra, 245 Cal.App.4th 328, 341, 348-350 [prosecution was able to locate and communicate with an out-of-state witness]; People v. Masters (1982) 134 Cal.App.3d 509, 521-522, 526-528 [error to admit preliminary hearing testimony of victim who was the sole witness to charged robbery, where she had left state but for a known location; unexcused failure by the prosecution to invoke Uniform Act for compelling attendance].)
The prosecution is held to a good faith standard of reasonableness concerning the efforts to be made to produce a witness, and must competently develop and pursue leads on that person's whereabouts. (Herrera, supra, 49 Cal.4th at p. 623; Fuiava, supra, 53 Cal.4th 622, 676-677.) However, the prosecution does not have a duty " 'to keep "periodic tabs" on every material witness in a criminal case, for the administrative burdens of doing so would be prohibitive. Moreover, it is unclear what effective and reasonable controls the People could impose upon a witness who plans to leave the state, or simply "disappear," long before a trial date is set.' " (Id. at p. 676.) It is not required that every possible line of inquiry must be pursued, if reasonable efforts were used toward locating the witness. (Cummings, supra, 4 Cal.4th 1233, 1298.)
After Faircloth's first trial ended on August 6, it took about three weeks before the prosecutor's staff realized that additional efforts would be required to produce Santiesteban as a witness, because he had left town without leaving a forwarding address. Although they found a Boca Raton address for him by mid-September, the record does not show that Santiesteban was living there or could be reached there. Even though that address had been previously associated with him, no Florida phone number for him or apparently for his contacts could be found. After becoming aware there was a problem, two prosecution staff members over several weeks searched numerous law enforcement databases and several other public sources of information, but without success. The court could reasonably conclude that not enough knowledge had been gained to require the prosecutor to pursue the Uniform Act's procedures. (See People v. Masters, supra, 134 Cal.App.3d 509, 525-526.)
The fact that more research could have been done is not dispositive. (Fuiava, supra, 53 Cal.4th at p. 677.) The applicable standards require that " 'sustained and substantial good faith efforts' " must be undertaken, and that is what evidently occurred here. (People v. Diaz (2002) 95 Cal.App.4th 695, 706.) In any case, there is no indication in the record that doing the search differently or earlier would have made any difference in the prosecution's ability to procure Santiesteban's attendance at trial. He informed the probation officer that he did not want to come to court to testify again and wanted to move on with his life. It is a reasonable inference that Santiesteban "purposely made [him]self unavailable because [he] was unwilling to testify." (Ibid.) It is speculative to assume that if the prosecution's staff had pursued other procedures, as Faircloth suggests, they would have procured Santiesteban's presence at trial. Also, Faircloth's identity as the perpetrator of these acts was not at issue, so a repeated in-court identification by Santiesteban would not have added much.
" 'The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness.' " (Herrera, supra, 49 Cal.4th at p. 622.) The record supports the conclusion that the prosecution exercised reasonable diligence to locate Santiesteban, in light of the circumstances that he immediately moved out of state without leaving a forwarding address. The court did not err in allowing Santiesteban's previous trial testimony to be read to the jury.
III
COMPETENCY ISSUES
A. Procedural Background
No request was made by defense counsel at trial for a competency evaluation pursuant to section 1368. However, Faircloth's appeal points to several circumstances throughout the trial process that he argues amounted to substantial evidence that required the trial court to order such a competency hearing. On August 6, 2015, when it was time to take the partial verdict at the first trial, he was refusing to dress out in civilian clothes and was acting in a combative manner when asked to do so, as he wanted a clerical collar. He was angry and yelling during court, and requested that his counsel be relieved and a Marsden hearing was held, but the request was denied. (People v. Marsden (1970) 2 Cal.3d 118.) The trial court explained to him that if he continued to use offensive and foul language in court, he would not be allowed to stay in the courtroom. Faircloth again tried to fire his attorney, which was denied, and further hearings were set.
In the interim, Faircloth wrote two letters to the trial court on jail stationery, one dated August 3, 2015 and filed October 6, 2015. The other was dated September 28, 2015, and filed the same date. In the first letter, he made claims of being disabled and suggested that witness tampering had occurred. He referred to "pollutible contaminants" and made other strange challenges to fingerprint and other evidence. In the second letter, he listed his name as "Monk Father" and made Biblical references to the books of Exodus and Leviticus. The letter also challenged the evidence presented at the first trial and claimed he was the victim in the incident.
As other factors supporting his appellate claim of incompetency, Faircloth points out that he again refused to dress out in civilian clothes in front of the jury at the retrial. After the reading of Santiesteban's testimony, he was questioned by the trial court about his continued use of bad language in court and why he had been screaming at his attorney during breaks. The minute order from that date, October 6, 2015, states that an unreported chambers conference was held. On the record, the court told Faircloth, "I'm a little concerned about you, wondering how you're feeling today. Are you okay? You've been talking?" The discussion on the record included Faircloth's reply that he was being abused because "every last one" of his "legal protections" was being surrendered by his defense. He requested a copy of his transcript from the first trial and objected that his attorney was calling him a liar and was not catching him up on the discussions with counsel and the court. The court asked Faircloth if he understood what was happening and whether he planned on testifying, then told the defense attorney, "I think he understands what we're doing here." The court concluded that Faircloth understood what was being talked about in court, and called the next witness.
Later, at sentencing, Faircloth again became disruptive before and during court, and the court continued the matter until the next day to try to get his cooperation. Sentencing was completed after Faircloth vigorously cursed the judge and was removed from the courtroom, as he had requested.
B. Legal Principles
Under both federal and state standards, " 'the failure to observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial deprives him [or her] of his [or her] due process right to a fair trial.' " (People v. Jenan (2007) 148 Cal.App.4th 1144, 1165; Pate v. Robinson (1966) 383 U.S. 375, 385; People v. Mai (2013) 57 Cal.4th 986, 1032 (Mai).) A defendant is presently incompetent if "as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a).) If a judge expresses doubt as to a defendant's mental competency, the judge must suspend proceedings and order a competency examination. (§ 1368, subds. (a), (c).)
The decision whether to order a competency hearing rests within the trial judge's discretion, and will not be disturbed on appeal unless substantial evidence shows, as a matter of law, doubts exist about the defendant's mental competence, such that the court evidently abused its discretion in making the relevant decision. (See People v. Pennington (1967) 66 Cal.2d 508, 518 (Pennington).) When a defendant has not presented substantial evidence to indicate he was incompetent, the trial court's declaration of a doubt remains discretionary. (People v. Ramos (2004) 34 Cal.4th 494, 509.) It is not the subjective opinion of the trial judge that matters, but whether substantial evidence existed to raise a reasonable doubt concerning the defendant's competence to stand trial. (People v. Welch (1999) 20 Cal.4th 701, 737-738.) We generally give "great deference to a trial court's decision whether to hold a competency hearing." (People v. Marshall (1997) 15 Cal.4th 1, 33.)
On review, we examine the record to determine if the defendant offered substantial evidence of present mental incompetency, so as to trigger a court duty to declare a doubt on the ability to stand trial and thus to order a competency hearing under section 1368. We acknowledge that the trial court was in the best position to observe the defendant's behavior during trial. (Mai, supra, 57 Cal.4th 986, 1033.) Even where a defendant was acting in a bizarre manner in court and showed an unconventional or disruptive trial demeanor, such factors may pertain to his competence but are not alone dispositive. (People v. Laudermilk (1967) 67 Cal.2d 272, 285 (Laudermilk); People v. Mickel (2016) 2 Cal.5th 181, 202.) The inquiry focuses on whether the defendant has the ability to aid in his or her own defense. (Pennington, supra, 66 Cal.2d at p. 518; § 1368, subd. (a).)
C. Analysis
We next consider whether Faircloth presented substantial evidence that cast doubt upon his present competency as of the time of trial. To argue he presented substantial evidence in that respect, Faircloth points to portions of the record documenting that his courtroom behavior throughout trial was inappropriate, and that he submitted letters to the court that contained strange religious references and evidence of mental illness, all before the court went on the record to address competency issues.
We initially address Faircloth's argument that the trial court had effectively declared there was substantial evidence of doubt about his competence, when it decided to hold an unreported chambers conference at the retrial. That is not an accurate representation of the record about how the court expressed and resolved its concerns arising out of his behavior in and out of court, throughout the trial proceedings. From the minute order of the middle day of the retrial, October 6, 2015, we learn that an unreported chambers conference was held, after which the court placed on the record its questions about his behavior, and received responses. The court thus showed an awareness of its statutory duty and the appropriate criteria, including its observations over the months for evaluating them. Merely because the court used the term "I'm a little concerned about you" in expressing and investigating its questions about Faircloth's behavior was not the equivalent of making a finding that substantial evidence existed to require a competency hearing. Rather, it was the introduction to an inquiry into whether Faircloth retained the present ability to aid in his defense, and this language was not binding or conclusory. (Pennington, supra, 66 Cal.2d 508, 518, 521; § 1368, subd. (a).)
By the time of the retrial, the record included an account of the angry outbursts that Faircloth had in August, after the partial verdict was received at the first trial. He had already testified and was to do so again without incident at the October retrial. By that time, he had submitted two letters to the court, which included challenges to the evidence that had already been presented. The letters also made arguments about witness tampering and said he was appealing his conviction based on a lack of physical evidence in support of the charges.
By the middle of the retrial, he was still having disagreements with his defense attorney and was angry because he did not have access to his prior reported testimony. After the court asked him how he was feeling, and told him not to share his legal strategy, he responded that he still wanted a transcript of his prior testimony. The court said it was not clear whether one existed, and concluded that Faircloth seemed to understand the proceedings that were going on.
We are not required to conclude from this record that the court had already made or should have made a finding of substantial evidence of doubts about Faircloth's competence to assist in his defense. Overall, the court was justified in believing that Faircloth understood the nature and purpose of the proceedings and had his own theories about them, sometimes resulting in outbursts showing his dissatisfaction with how the process was going. To raise a doubt under the substantial evidence test, we require more than mere bizarre actions or statements. (Laudermilk, supra, 67 Cal.2d 272, 285.) Although the letters he wrote the court included strange language, religious references and theories, they also dealt with the defenses he wanted to present to the charges. Even if the letters "reflect generalized concerns" that he suffered from mental illness, they did not show that he was unable to understand the nature and purpose of the criminal proceedings against him or to participate in his defense. (Id. at pp. 285-288 [mentally ill or difficult clients are not necessarily incompetent].) The court could reasonably conclude that although Faircloth was combative and likely had a mental illness, he was competent to stand trial.
The same is true of his answers to the court's questioning about why he was having problems during the retrial, because he answered that he wanted to review his prior testimony before again taking the witness stand. Those replies demonstrated that he had some understanding of the criminal proceedings against him and some ability to consult with counsel or otherwise assist in his defense, even though he showed himself to be a difficult client. (Welch, supra, 20 Cal.4th 701, 740.) His trial demeanor was relevant to, but not dispositive of, the question whether the trial court should have suspended proceedings under section 1368. (People v. Ramos, supra, 34 Cal.4th at p. 509.)
We accordingly find no abuse of discretion in the court's determination it was appropriate to proceed with trial.
DISPOSITION
The judgment is affirmed.
/s/_________
HUFFMAN, J. WE CONCUR: /s/_________
McCONNELL, P. J. /s/_________
AARON, J.