Opinion
F076428
06-16-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ANTHONY FLORES, Defendant and Appellant.
Frank J. Torrano and Elizabeth Smutz, under appointments by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F17901187)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M. Skiles, Judge. Frank J. Torrano and Elizabeth Smutz, under appointments by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Smith, J. and Snauffer, J.
-ooOoo-
Joseph Anthony Flores seeks reversal of his conviction for domestic violence. He argues the trial court erroneously admitted, at trial, the preliminary hearing testimony of the complaining witness, upon finding the latter was unavailable. More specifically, he argues the court's underlying finding that the complaining witness was unavailable was erroneous, as the prosecution failed to show it acted with reasonable diligence in attempting to secure her presence. We reject this claim of error and affirm.
PROCEDURAL HISTORY
Flores was charged, in a third amended information filed in the Fresno County Superior Court, with one count of willful infliction of corporal injury (resulting in a traumatic condition) on a person whom he was dating (Pen. Code, § 273.5, subd. (a)). A jury found him guilty as charged. Flores was sentenced to the middle term of three years in state prison.
Subsequent statutory references are to the Penal Code unless otherwise specified.
FACTS
Prosecution Case
L.B., the complaining witness in this case, was not present at trial, which occurred on June 27, 28, and 29, 2017. She had, however, testified at the preliminary hearing, which was held on April 24, 2017, and her preliminary hearing testimony was read to the jury.
L.B. and Flores started dating in February 2016. The relationship ended a month later, after Flores assaulted L.B. The assault in question occurred on the night of March 12, 2016, between "10:30 and 2:00ish." L.B. and Flores were at L.B.'s house in Fresno that night. L.B. left for work as an Uber driver around 10:30 or 11:00 p.m. L.B. testified: "I did go to work as an Uber driver, but I didn't end up picking anyone up because ... some things came together in [my] mind, and I realized [Flores] lied to me about something, so I went back home [around 11:30 p.m.], and then I was getting all of my things and getting my dogs and then I just wanted to tell [Flores] that I was done with him and I wanted him to leave." L.B. continued: "[Flores] was still sleeping on the couch, and I didn't want to let him know that I was gathering my things, because I was putting everything into my bedroom to shut the door and then just tell him to just go. And I had texted one of my friends[, B.J.,] and let them know that I was going to do that also, and [told them] to come to the residence and wait outside for me ... because I was in danger."
L.B. then retreated to her bedroom and called out to Flores that "[she] knew he was lying," that "[she] didn't want to see him," and that "[she] wanted him to leave." When she saw Flores's "head pop up," she shut the bedroom door and locked it. However, it was a flimsy door and Flores "just shoved it open." Flores said something to the effect of "'I can't go. It's late at night.'" L.B. testified: "He kicked me somewhere, and spun me around, and then punched me in the back of the head after he had spun me around." L.B. tried to call for help but Flores took her phone and "smashed it to smithereens." L.B. continued: "[A]fter he hit me the first time, and then after the phone, then he stomped on my head." She explained: "My ears were bruised, both of my ears. I had bumps all over my entire head, because he was stomping on me and kicking me in my head, and in my ribs." The kicking and the stomping happened "multiple" times. Flores then "just stopped and left." L.B. told Flores she "would give him a ride home because [she] wanted to get out of the house to [her] friend."
L.B. spotted her friend's truck down the street. She started driving her car, with Flores in the passenger seat, and pulled up to her friend's truck. L.B.'s friend told Flores that L.B. would not drive Flores home. Flores got out of the car and left on foot. L.B. did not report the incident to law enforcement at that point because she was afraid Flores would kill her. However, she contacted law enforcement approximately one week later, once she moved into a new place. L.B. had to move because the house she had been living in was not hers, rather it was the residence of her ex-boyfriend. L.B. had taken pictures of the bruises she suffered when Flores hit and kicked her; the police also took photographs of her bruises when they met with her to take a statement about the incident. Various photographs were introduced into evidence and shown to the jury.
B.J., the friend whom L.B. referred to in her preliminary hearing testimony, also testified for the People. B.J. and L.B. had dated in the past. B.J. said he "got a barrage of text messages" from L.B. "about midnight" on March 12, 2016. L.B. asked for help regarding a man in her house; she was afraid the man would hurt her. L.B. also told B.J. not to call the police as she did not "want anybody involved." B.J. drove to L.B.'s house. He testified: "[i]t sounded like people were fighting"; he added: "I heard mostly the female yelling." B.J. did not want to escalate the situation, so he waited in his truck. Eventually he saw two people emerge from the house and get in the car; the car drove up to him. L.B. was driving and looked "really, really scared." B.J. testified: "I told the dude, 'Get out of the car.' He got out of the car and left." L.B. thought the man had not actually left; she mistakenly thought a neighbor standing on a porch was the man.
B.J. got L.B. back into her house. L.B. had "bruises all over," which B.J. helped photograph. L.B. went from being "scared" to getting angry with, and yelling at, B.J. She was just "really, really pissed" and "was kicking things." B.J. stayed with L.B. for the next "couple [of] days." They did not address L.B.'s injuries again after the initial night.
Although B.J. had observed the man in the car at relatively close range that night, he could not identify Flores as the man in question. B.J. said the man in the car on March 12, 2016, looked "very different" from the defendant in the court room.
L.S., another friend of L.B. also testified for the People. L.S. talked to L.B. around the time L.B. moved to her new place in March 2016. L.B. was wearing a heavy sweater at the time, something L.S. found odd as it was a warm March that year. L.S. also saw some bruises on L.B.'s face and inquired whether all was well. L.B. got very emotional, said she did not feel safe, and showed L.S. various bruises on her body. L.S. helped L.B. move to her new residence.
The prosecution called as a witness the deputy district attorney who represented the People at the preliminary hearing in this matter. The deputy district attorney testified that L.B. had identified Flores, in court, at the preliminary hearing. A police detective who investigated the case testified that L.B. had been shown a booking photograph of Flores and identified him.
Defense Case
The defense called Fresno Police Officer Paul Hill. Hill met with L.B. on March 22, 2016, in connection with the investigation into the instant matter. L.B. told Hill that Flores had stomped on her face and head. Hill did not see any bruising on L.B.'s face.
DISCUSSION
I. Admission of L.B.'s Preliminary Hearing Testimony at Trial (in her Absence)
Flores contends that admission of L.B.'s preliminary hearing testimony at trial in lieu of live testimony violated his confrontation and cross-examination rights under the Sixth Amendment to the federal Constitution as well as California statutory law.
More specifically, Flores argues the court's underlying findings that (1) the prosecution had acted with the requisite due diligence in attempting to secure L.B.'s presence at trial, and (2) that L.B. was unavailable to testify in person, were erroneous. The trial in this matter was originally scheduled for Monday, June 19, 2017. It was subsequently continued for a week and a day, to Tuesday, June 27, 2017, at the People's request. Flores expressly does not contest the prosecution's showing of due diligence for purposes of the trial as originally scheduled on June 19, 2017. Rather, he argues the showing of due diligence was inadequate for purposes of the actual trial, which commenced on June 27, 2017. We affirm the trial court's conclusions, and, in turn, the judgment.
A. Background
The prosecution filed a motion in limine on June 27, 2017, seeking a ruling, under Evidence Code sections 240, 1290, and 1291, that L.B. was unavailable and that, in turn, her preliminary hearing testimony was admissible in lieu of live testimony. The defense also filed a motion in limine on June 27, 2017, as follows: "Should a witness[s] [sic] be unavailable to testify at trial, defense requests [an Evidence Code section] 402 hearing to determine whether the prosecutor exercised due diligence to secure the witness(s)' [sic] presence at trial." (Unnecessary capitalization omitted.) Accordingly, during the motions in limine hearing on the first day of trial, the trial court received testimony from the prosecutor to assess whether the prosecution had been reasonably diligent in attempting to secure L.B.'s presence at trial and, in turn, whether L.B. was unavailable and her preliminary hearing testimony admissible.
The prosecutor testified, in narrative form, regarding her personal efforts to secure the complaining witness's presence at trial. The prosecutor noted that L.B. testified at the preliminary hearing on April 24, 2017, and, at the conclusion thereof, indicated to the deputy district attorney who handled the preliminary hearing that she was relocating to Rhode Island but was willing to return to testify at trial. The prosecutor continued: "We kept in contact. We, the People, kept in contact with her, and after she relocated to Rhode Island, we advised her of the trial date of June 19th, and that happened all around May 10th of this year."
The prosecutor noted: "On or around the 26th of May, when I spoke to [L.B.], she did mention that her pets were an issue. We obtained authorization from our administration to pay for room and board for her four dogs." The prosecutor explained: "Up until May 30th of this year, [L.B.] was cooperative, and she agreed to travel back to Fresno to testify for [the] June 19th [trial], however, after May 30th she stopped returning calls. I have personally made calls to her phone number several times, documenting all my efforts, and she did not return calls after May 30th."
The prosecutor went on:
"At that point we realized that she may become uncooperative, so we obtained - I obtained a foreign subpoena signed by Judge Kimberly Gaabe. I believe that was on June 1st, and I immediately started researching the agency responsible in Rhode Island for serving and executing foreign subpoenas. After making several calls in a span of three to four days, I was able to confirm that the Rhode Island Department of Attorney General handles foreign subpoenas for other states. I was able, after going through multiple individuals within the department, I located a Michele Gulae Wood, an attorney who works with the Department of the Attorney General and immediately coordinated with her to Fed Ex the foreign subpoena that was previously signed by Judge Gaabe. She sent me some templates that I filled out and made sure that it conforms to the Rhode Island requirements for a foreign service, and she ... advised me via e-mail on June 6th that she, in fact, did receive the documents ... signed by Judge Gaabe.
"On June 6th, we also booked a flight for [L.B.]. I have the itinerary that our administration put together in an e-mail, if the court would like to see that. I contacted [L.B.] right away. Prior to even scheduling the flight, I asked for her callback to make sure that the flight dates are convenient for her, and I did not get a return call back. After we booked the flight, and she did not return the calls, and the flight was for departure on June 20th. While we were coordinating the flight and the itinerary, the North Kingstown Police Department was actively searching for [L.B.], and they were able to locate her two days prior to ... the show cause hearing that Ms. Michele Gulae Wood had scheduled, and that hearing was on the 15th of June."
Regarding provision of notice to L.B., as to the June 15, 2017 hearing held in Rhode Island, the prosecutor further explained: "I personally spoke with a lieutenant there at the North Kingstown Police Department, ... and he advised me that they attempted service on June 9th at 3:30 p.m. eastern time, as well as June 12th at around 11:30 in the morning, and they are three hours ahead. And he did advise me that they would attempt service that night, the night of the 12th, so either on the 12th or the 13th, they were finally able to serve [L.B.]." The prosecutor noted that at the subsequent court hearing in Rhode Island, on June 15, 2017, the judge found L.B. was not timely apprised of the need for her to attend the trial in California, as she was served with notice regarding the trial in California only two days prior to the Rhode Island court hearing. Specifically, the prosecutor said: "Now, [L.B.] did appear for that hearing [in Rhode Island], and my understanding is that she was represented by the public defender there, who appeared as a friend of the court. [L.B.] made some representations about how difficult it is for her to travel back to Fresno, given her father's medical condition, as well as due to a lack of care for her four dogs. I was not obviously present for that hearing, but it appears that based on her representations, the judge, Melanie Thomberg of Rhode Island Superior Court, found that she's a material and necessary witness. She also found that the State of California did not file its request for interstate service in sufficient time to accommodate the witness's living situation in the state of Rhode Island, and that compelling her to travel to the State of California ... with two days [notice] would create an undue hardship for her."
Ultimately, on June 19, 2017, the day set for jury trial, the prosecutor ended up requesting a continuance of the trial until June 27, 2017, because the prosecutor had another trial scheduled in the same period. The prosecutor's request for a continuance until June 27, 2017, was granted by the court. Regarding any subsequent contacts between L.B. and the district attorney's office (that is, after June 19, 2017), the prosecutor noted: "[L.B.] called our office and basically told our office assistant that Rhode Island found her unavailable, also some profanities, and she stated that she will not be testifying, or words along those lines."
The prosecutor concluded: "We've tried everything we could to get [L.B.] here, and the judge in Rhode Island Superior Court apparently found her unavailable, or found that it would cause her undue hardship to travel back. So based upon that, and based upon the fact that the defense ... had an opportunity to cross-examine [L.B.] at the preliminary hearing that was held on [April 24, 2017], we believe that the requirements for former testimony have been met and that [L.B.] should be declared unavailable for purposes of this trial."
Defense counsel contended, in response: "I do not believe the People met their burden of due diligence, and any testimony that was previously given by L.B. should not be entered." Defense counsel argued:
"I understand that the witness said she was going to be cooperative. The defense's position is that it is foreseeable and not unlikely that a witness would then say, 'It's going to be too difficult. I don't know if I'm going to be able to make the trip,' and the People knew between April 24th and May 10th that [L.B.] was going to be leaving the state, going to be moving far away, and in order to secure her appearance, and knowing the process would get complicated, as it sounds like it's been ... it was the prosecution's duty at that date to secure the witness and not assume that she would remain cooperative when she puts miles across the country away from this state. The process could have been started earlier, it was foreseeable, and despite her saying, 'I'll be cooperative today,' I think that it's not unlikely, with that sort of distance that the witness traveled, that come day of trial, the witness would decide that she doesn't want to appear in this jurisdiction."
Defense counsel further noted that the People should have acted earlier to secure the witness given that "this is the victim, and the People's star witness," whose "testimony is essential to the hearing." Defense counsel added: "This is a person who had said to the People she would be moving away. The People are aware that she had her pets, as testified to at the preliminary hearing, and was concerned about her animals. It was foreseeable in this specific case, I'm not talking cases in general, but in this case, that this victim, as oftentimes, domestic violence victims closer to trial do change their minds and are not wanting to testify, I think it was foreseeable in this case that that may [happen], and it did."
The case was set to time out, with respect to the defendant's speedy trial rights, on July 7, 2017. The trial court addressed the prosecutor: "I understand your representation that [the Rhode Island judge] found that two days was insufficient [notice to L.B. that she was required to testify in California]." The court further observed: "[W]e still have two weeks before the timeout date, so I don't know whether there was any finding that a week was sufficient, two weeks was sufficient." The prosecutor responded: "I don't believe the judge communicated specifically to the attorneys that were present in the hearing from the Rhode Island Department of Attorney General as to how much time would have been sufficient." The trial court then ruled: "I'm finding the People have exercised due diligence in securing the appearance of the alleged victim for testimony at trial." The court ruled, in turn, that L.B. was unavailable and her preliminary hearing testimony admissible in lieu of live testimony.
B. Analysis
"A defendant has a constitutional right to confront witnesses, but this right is not absolute. If a witness is unavailable at trial and has testified at a previous judicial proceeding against the same defendant and was subject to cross-examination by that defendant, the previous testimony may be admitted at trial." (People v. Smith (2003) 30 Cal.4th 581, 609 (Smith); People v. Stritzinger (1983) 34 Cal.3d 505, 516 [a witness's preliminary hearing testimony may be admitted at trial provided the witness is unavailable] (Stritzinger); People v. Cogswell (2010) 48 Cal.4th 467, 471 (Cogswell) ["[a] witness's preliminary hearing testimony is admissible at trial if the witness is 'unavailable'"]; People v. Byron (2009) 170 Cal.App.4th 657, 674 ["'"we have routinely allowed admission of the preliminary hearing testimony of an unavailable witness"'"]; Evid. Code, §§ 1291, subd. (a)(2); 1290, subd. (a).)
"The constitutional right to confront witnesses mandates that, before a witness can be found unavailable, the prosecution must 'have made a good-faith effort to obtain his presence at trial.'" (Smith, supra, 30 Cal.4th at p. 609, citing Barber v. Page (1968) 390 U.S. 719, 725.) "The California Evidence Code contains a similar requirement. As relevant, it provides that to establish unavailability, the proponent of the evidence, here the prosecution, must establish that the witness is absent from the hearing and either that 'the court is unable to compel his or her attendance by its process' (Evid. Code, § 240, subd. (a)(4)) or that the proponent '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))." (Smith, supra, at p. 609.) "The constitutional and statutory requirements are 'in harmony.'" (Ibid; see People v. Cromer (2001) 24 Cal.4th 889, 892 (Cromer) [under federal constitutional law, the prosecution must show it made a "'good-faith effort'" to obtain the presence of the witness at trial, while under California law, a showing of "'reasonable diligence'" or "due diligence" in terms of securing the witness's presence must be made].) "The proponent of the evidence has the burden of showing by competent evidence that the witness is unavailable." (Smith, supra, at p. 609.) The applicable standard of proof in this context is the preponderance of the evidence standard. (Stritzinger, supra, 34 Cal.3d at p. 516.)
What constitutes due diligence to secure the presence of a witness depends upon the facts of the individual case. (People v. Sanders (1995) 11 Cal.4th 475, 523 (Sanders).) "The term is incapable of a mechanical definition." (People v. Linder (1971) 5 Cal.3d 342, 346-347 (Linder).) "It has been said that the word 'diligence' connotes persevering application, untiring efforts in good earnest, efforts of a substantial character." (Id. at p. 347.) "The totality of efforts of the proponent to achieve presence of the witness must be considered by the court. Prior decisions have taken into consideration not only the character of the proponent's affirmative efforts but such matters as whether he reasonably believed prior to trial that the witness would appear willingly and therefore did not subpoena him when he was available [citation], whether the search was timely begun, and whether the witness would have been produced if reasonable diligence had been exercised." (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." (Cromer, supra, 24 Cal.4th at p. 901.)
The parties agree that the prosecution invoked the Uniform Act to Secure the Attendance of Witnesses from without the State in Criminal Cases (§ 1334), in attempting to procure L.B.'s attendance in trial. The Uniform Act provides "a means by which prosecuting authorities from one State can obtain an order from a court in the State where the witness is found directing the witness to appear in court in the first State to testify." (Barber v. Page, supra, 390 U.S. at p. 723, fn. 4; see People v. Masters (1982) 134 Cal.App.3d 509, 523; Cogswell, supra, 48 Cal.4th at p. 475.) The Uniform Act has been adopted by both California (§ 1334 et seq.) and Rhode Island (R.I. Gen. Laws § 12-16-1 et seq.).
Here, the prosecution remained in contact with L.B. after she testified at the preliminary hearing on April 24, 2017. L.B. indicated she was moving to Rhode Island but would be willing to return to California to testify at trial. On May 10, 2017, the prosecution informed L.B. that she would be needed at the trial scheduled on June 19, 2017. When L.B. subsequently mentioned she had pets and caring for them would complicate plans to leave town, the prosecution obtained authorization to pay for room and board for L.B.'s four dogs. When L.B. thereafter stopped communicating with the Fresno district attorney's office, the prosecutor immediately started researching how to obtain the requisite foreign subpoena to ensure L.B.'s attendance at trial. The prosecutor established contact with Rhode Island's Department of Attorney General and had L.B. served regarding a show cause hearing to be held in the appropriate Rhode Island court. L.B. appeared at the show cause hearing. However, the Rhode Island court declined to order her to appear at the trial in California on grounds of hardship.
Finally, it appears that the Fresno district attorney's office contacted L.B. after the trial was continued from June 19, 2017, to June 27, 2017, only to have L.B. call back to say, along with various profanities, that she would not testify at the trial on account of hardship found by the Rhode Island court. L.B.'s conduct suggests she was actively resisting traveling to California to testify. In this context, we also note that, to the extent L.B.—who had notice of the original June 19, 2017 trial date since May 10, 2017—was disinclined to travel to California to testify at the trial, the prosecution, even had it secured the requisite foreign subpoena from the court in Rhode Island, did not have at its disposal any reasonable means to compel her compliance with the foreign subpoena. (See Code Civ. Proc., § 1219, subd. (b) ["Notwithstanding any other law, a court shall not imprison or otherwise confine or place in custody the victim of a sexual assault or domestic violence crime for contempt if the contempt consists of refusing to testify concerning that sexual assault or domestic violence crime."]; see also Cogswell, supra, 48 Cal.4th at p. 478 [noting, in light of Code Civ. Proc., § 1219, subd. (b), that "the prosecution acted reasonably when it chose not to request—even though permitted under the Uniform Act's custody-and-delivery provision—to have sexual assault victim Lorene taken into custody and transported from Colorado to California to testify at defendant's trial," italics added].)
Under these circumstances, we conclude the prosecution acted with good faith and reasonable diligence in attempting to secure L.B.'s presence at the trial. While the prosecution potentially could have sought an additional or longer continuance of the trial in order to make a second effort to have the Rhode Island court order L.B. to return to California to testify at the trial, it reasonably appears the latter process would have taken more time than was available given the case was timing out on July 7, 2017; furthermore, even had the prosecution succeeded in obtaining the foreign subpoena from the Rhode Island court in any second attempt, there was no reasonable way for the prosecution to compel compliance with it.
DISPOSITION
The judgment is affirmed.