Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F04004
HULL, J.Defendant Steven Lawrence Garduno was convicted after a jury trial of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), committing the crime while personally armed with a firearm (Pen. Code, § 12022.5, subds. (a) & (d)), and being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)). (Unspecified section references that follow are to the Penal Code.) He was sentenced to 16 years, plus 25 years to life, in state prison.
On appeal, defendant contends the trial court erred by admitting the prior testimony of the complaining witness. Finding defendant’s claim to be without merit, we affirm the judgment.
Facts and Proceedings
Given the defendant’s single assignment of error, we forgo a recitation of the facts underlying the offenses of which defendant was convicted and set forth only those facts relating to the trial court’s decision to admit the preliminary hearing testimony of the victim, Jose Gonzales.
Prior to trial, the prosecution filed a motion seeking to introduce the preliminary hearing testimony of the victim, Jose Gonzales, should he fail to appear at trial. Defendant filed his own motion, seeking to exclude the prior testimony of any prosecution witness.
In support of his request, the prosecutor submitted his own declaration, along with the testimony of the prosecutor’s investigator and process server--each attesting to his or her own efforts in securing Gonzales’s appearance at trial. The evidence adduced is as follows:
Prior to the preliminary hearing, the prosecution learned Gonzales was in custody with Immigration and was scheduled to be deported to Mexico. Accordingly, the prosecutor spoke with Immigration and persuaded them not to deport Gonzales until after the preliminary hearing. Gonzales thus appeared at the preliminary hearing, and the court ordered him to appear for trial. At that time, the prosecutor asked Gonzales for contact information in Mexico, but Gonzales had none. He did, however, agree to return for trial.
Ten days later, the prosecutor had a telephone conversation with Gonzales, who remained in the Sacramento County jail. Gonzales again indicated he would not have any contact information in Mexico, but would contact the prosecutor once he got there. Gonzales confirmed that he would return for trial. Gonzales was deported shortly thereafter.
Between November 1, 2008, and December 15, 2008, the prosecutor spoke with Gonzales’s girlfriend, Valencia Recinos, at least four times. Each time, the prosecutor asked for Gonzales’s contact information in Mexico, and each time Recinos told the prosecutor that she had not received any.
On November 11, 2008, the prosecutor sent a request to the process serving unit to have a subpoena served on Gonzales. Approximately one week later, process server Jane King, was assigned the job. King went to Gonzales’s last known address, where she spoke with Gonzales’s neighbors and Recinos, who confirmed Gonzales had been deported. King attempted to get contact information for Gonzales, but Recinos had none, though Recinos thought Gonzales might be in Tijuana.
King then checked to see if Gonzales had activated any new utility services, ran a credit agency report, and Gonzales’s rap sheet. King then contacted Immigration and left a message, seeking information on Gonzales; however, as of the date of the hearing, Immigration had not responded to her request. King also contacted an investigator with the San Diego County District Attorney’s office and asked for his help in finding Gonzales in Mexico. The San Diego investigator referred King to a police officer in rural Mexico who he thought might be able to help King find records on Gonzales in Mexico.
On either December 1 or 2, 2008, Gonzales contacted the prosecutor directly. During the conversation, Gonzales assured the prosecutor that he would appear for trial and he had every intention of testifying. Gonzales did not ask for any assistance for travel. The prosecutor asked Gonzales for a phone number and address but Gonzales said he did not have one. Gonzales said to the prosecutor that he was borrowing a friend’s cell phone to make the phone call, and was moving between friends’ homes.
The prosecution also had their investigator, Tiffney King, looking for Gonzales. She too spoke with Recinos and learned that Recinos still had no phone number and no address for Gonzales.
The court granted the prosecution’s motion, permitting them to read Gonzales’s preliminary hearing testimony into the record.
At trial, the prosecution read Gonzales’s testimony as reflected in the preliminary hearing transcript which set forth the history of defendant’s relationship with Gonzales, including defendant’s claim that Gonzales owed him money.
The jury also heard Gonzales’s recollection of the events of May 20, 2008. Gonzales testified that his girlfriend had thrown him out of the house and he was driving by Ralph’s house when he saw defendant’s truck parked outside. He learned defendant was there, but was leaving, so he parked his car behind defendant’s truck and went inside, passing defendant on his way in.
Once inside the house, Gonzales looked out the window and saw defendant drive away. He then began to play dice with his friends. After a while, one of his friends asked Gonzales to move his car because it was blocking the friend’s car. Gonzales agreed and got into his car to move it when he heard a “bang,” “like a rock hitting [his] car.” The driver’s side window shattered and glass fell in his lap. Gonzales looked to his left and saw defendant standing there, holding a revolver. Gonzales tried to open the door and get out but felt pain in his shoulder and chest.
Gonzales testified that defendant raised the gun, pointed it at Gonzales’s head and said, “I told you you were going to pay me.” Gonzales responded, “Damn, you’re about to kill me for no fucking reason.” Defendant raised the gun in the air again and spun around. Gonzales remembered that everyone in the house then came outside. Another person grabbed defendant and asked him “What the fuck are you doing,...?” and pulled him toward the park. A woman, who he had seen with defendant earlier in the evening, told Gonzales: “Don’t say who shot you.” Then everyone ran away and Gonzales called his girlfriend.
Discussion
Admissibility of the Preliminary Hearing Testimony
On appeal, defendant argues that admitting testimony from a preliminary hearing violates his Sixth Amendment right to confront witnesses because preliminary hearings are limited to finding probable cause, not proving guilt beyond a reasonable doubt. Thus, he contends, the interest and motive to cross examine the witness at the preliminary hearing is different than that at trial.
Defendant acknowledges that his claim is foreclosed by the California Supreme Court decisions in People v.Valencia (2008) 43 Cal.4th 268 (Valencia), and People v. Williams (2008) 43 Cal.4th 584 (Williams), wherein the Supreme Court ruled that preliminary examination testimony by a witness shown to be unavailable at trial is admissible if the defendant had the opportunity to cross-examine the witness. (Valencia, supra, 43 Cal.4th at pp. 291-292; Williams, supra, 43 Cal.4th at pp. 626-627.) Defendant does not contend that he did not have an opportunity to cross-examine the complaining witness at the preliminary hearing, but raises this claim in order to “preserve the question for further review.”
Defendant also argues the trial court erred in finding the prosecution exercised reasonable diligence in securing the attendance of the complaining witness at trial. We disagree.
“‘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. [Citations.] 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.”’ [Citation.] California law and federal constitutional requirements are the same in this regard. [Citation.] Moreover, for the prior testimony to be admissible, the defendant must have had the opportunity to cross-examine the witness at that hearing with an interest and motive similar to that which defendant has at the hearing at which the testimony is admitted. [Citations.]” (Valencia, supra, 43 Cal.4th at pp. 291-292; see also Evid. Code, § 240, subd. (a)(5) [witness is unavailable if the witness is absent from the hearing and the proponent of the witness’s statement “has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process”].)
“‘The proponent of the evidence has the burden of showing by competent evidence that the witness is unavailable.’ [Citation.]” (Valencia, supra, 43 Cal.4th at p. 292.) This requires a showing of “due diligence” in trying to find the witness. (Ibid.) “The term ‘due diligence’ ‘“connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.”’ [Citation.] ‘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].’ [Citation.]” (Ibid.) “When, as here, the relevant facts are undisputed, we review this determination independently. [Citation.]” (Ibid.)
The prosecution’s efforts to secure Gonzales’s attendance at trial were timely begun when, at the preliminary hearing, the prosecution asked the court to order Gonzales to appear at trial. The prosecution continued its efforts to have Gonzales available to testify at trial over the next several months, maintaining contact with Recinos and attempting to serve a subpoena for Gonzales’s appearance at trial.
The prosecution had few leads on Gonzales’s whereabouts, but competently explored those they did have. When the prosecution learned Gonzales might be in Tijuana, they contacted a detective in San Diego, who provided them with contact information for a police officer in Mexico. Knowing Gonzales had been deported, the prosecution also reached out to immigration officials.
Defendant nevertheless contends the prosecution’s efforts were not “diligent,” that the prosecution should have demanded that Immigration detain Gonzales until after trial and should have traveled out of the county to look for him. “‘“That additional efforts might have been made or other lines in inquiry pursued does not affect [our] conclusion. [Citation.] It is enough that the People used reasonable efforts to locate the witness.” [Citation.]’” (Valencia, supra, 43 Cal.4th at p. 293.) “‘The law requires only reasonable efforts, not prescient perfection.’” (People v. Diaz (2002) 95 Cal.App.4th 695, 706.)
Relying on People v. Sandoval (2001) 87 Cal.App.4th 1425 (Sandoval), defendant also argues the prosecution should have availed itself of the treaty for mutual cooperation in legal matters between the United States and Mexico in order to secure Gonzales’s appearance at trial.
In Sandoval, the prosecution’s witness had been located and he was cooperating; however, he expressed a need for money and a visa in order to travel to the United States for trial. (Sandoval, supra, 87 Cal.App.4th at p. 1432.) The prosecution failed to provide him with either. (Ibid.) Thus, the Court of Appeal found the prosecution’s efforts fell short of reasonable, noting that with the treaty of mutual cooperation, a witness was no longer unavailable simply because he was a Mexican living in Mexico. (Id. at pp. 1432, 1443-1444.)
Here, the prosecution was never able to contact Gonzales in Mexico and never obtained a meaningful lead on his address. The prosecution thus had little information to provide to the Mexican government. Under these circumstances, it is highly speculative to assume that Gonzales would have been produced had the treaty between Mexico and the United States been invoked.
In any event, we note that, although Gonzales was the victim of defendant’s crime, his testimony was not particularly important to defendant’s conviction. Three eyewitnesses testified they saw defendant standing near Gonzales’s car after hearing a loud bang like a firecracker or a car backfiring. There were also two witnesses who testified that defendant believed Gonzales owed him money and one who heard them arguing before the shot was fired.
One police officer testified that Gonzales had been shot in the left shoulder, a fact that was confirmed by the emergency room physician. Four witnesses, including three police officers, testified that Gonzales said defendant shot him. And two witnesses testified that defendant was willing to pay Gonzales money to say someone else shot him. Defendant claimed Gonzales was the aggressor but the jury obviously did not believe him.
Even if we could find the trial court’s ruling error, which we do not, it would have been an error we would deem harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
Disposition
The judgment is affirmed.
We concur BLEASE, Acting P. J., ROBIE, J.