Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. VA 098657, Margaret Miller Bernal, Judge.
Irin Vernal Griffin, in pro. per.; Joanna L. Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ROTHSCHILD, J.
Irin Vernal Griffin appeals from the judgment following his conviction of one count of corporal injury to a co-habitant. (Pen. Code, § 273.5, subd. (a).)
We appointed counsel to represent appellant in this matter. After examining the record, counsel filed a “Wende” brief raising no issues on appeal and requesting that we independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) We directed appointed counsel to immediately send the record on this appeal and a copy of the opening brief to appellant, and notified appellant that within 30 days from the date of the notice he could submit by brief or letter any grounds of appeal, contentions, or argument he wished us to consider.
Appellant filed a supplemental brief in which he contends that he received ineffective assistance from his trial counsel and that the trial court committed Crawford error in admitting into evidence statements by the victim to the police and the transcript of the victim’s preliminary hearing testimony. (Crawford v. Washington (2004) 541 U.S. 36.) Appellant also moved for the appointment of “an expert in the field of police practices.” (Evid. Code, §§ 730-732; Code Civ. Proc., § 909.) We have examined the entire record and are satisfied that appellant’s attorney has fully complied with her responsibilities and that no arguable issue exists. (People v. Wende, supra, 25 Cal.3d at p. 441.) We set out below a brief description of the facts and procedural history of the case, the crime of which the defendant was convicted, and the punishment imposed. (People v. Kelly (2006) 40 Cal.4th 106, 110.) We also briefly explain why we reject the contentions in appellant’s supplemental brief and deny his motion for appointment of an expert.
FACTS AND PROCEEDINGS BELOW
An information charged defendant with one count of corporal injury to a co-habitant. In addition, the information alleged defendant had suffered five prior “strike” convictions under the Three Strikes law and that he had served a prior prison term. It also alleged numerous aggravating factors permitting an upper term sentence.
The alleged victim of the assault, Julie Reyes, did not appear at trial. The prosecutor moved to admit her preliminary hearing testimony pursuant to Evidence Code section 1291 on the ground that she was unavailable as a witness. The trial court held a hearing to determine whether the prosecution had exercised reasonable diligence to secure Reyes’ attendance at trial.
At the hearing, the prosecution’s investigator testified as follows. He was asked to try to locate Reyes approximately one month before trial. He searched various law enforcement data bases and discovered that Reyes had three outstanding bench warrants. Her probation officer had not seen her for more than six months. The investigator went to the address on Reyes’ subpoena. The landlord told him that she evicted Reyes approximately three months earlier. The post office had no forwarding address for her. The investigator also went to the home of Reyes’ mother and grandmother. They told him that they had not seen or heard from her in months and had no information on how to contact her. Four days before trial, the grandmother called the investigator and reported that Reyes had stopped by her home earlier that day. The investigator searched the area, including motels and the rail line station, but did not find Reyes. The following day, Reyes called the investigator. She told him that she was pregnant, she did not want to be involved in the case against Griffin and that she would not come to court. Half an hour later she called back and told the investigator that she would appear. She refused to provide her current address or telephone number. When Reyes failed to appear, the investigator checked the local hospitals, jails and the coroner’s office. He did not locate Reyes. The bench warrants were still on file.
Based on this evidence the trial court ruled that Reyes was an unavailable witness and that her preliminary hearing testimony could be used at trial.
The jury heard Reyes’ preliminary hearing testimony and the testimony of Officer Noah Nagel of the Downey Police Department.
Reyes initially testified that she did not remember defendant hitting her or hurting her. She did remember, however, that in a conversation with the prosecutor just before she took the stand she told the prosecutor that defendant hit her. She also remembered that when Officer Nagel arrived at her home in response to her 911 call, she told Nagal that defendant hit her and threatened her life. On redirect examination Reyes testified that defendant punched her and caused her injuries.
Nagel testified that he went to Reyes’ home in response to a 911 call. When he arrived, he found Reyes hysterical and crying. No one else was at the house. Nagal saw that Reyes was bleeding from her nose and mouth and that the right side of her face was swollen. Over defendant’s objection, Nagal testified that he asked Reyes “what happened?” and Reyes told him the defendant came to her house very angry and upset. Reyes would not let him in, so he entered the house through a window. When he got inside he told her “‘I’m going to kill you,’” and punched her in the face numerous times. Reyes fell to the floor and defendant left.
Defendant did not testify or call any witnesses.
The jury convicted defendant of the corporal injury charge. After defendant waived his right to a jury trial on the enhancements and aggravating factors, the court found that defendant had suffered the five alleged “strike” priors and served one prison term. The court struck all but one of the priors and denied the defendant’s motion to strike the remaining prior. The court found, as an aggravating factor, that defendant was on probation at the time he committed the current offense.
The court sentenced defendant to the upper term of four years, doubled under the Three Strikes law, plus a consecutive one year for the prior prison term. Defendant filed a timely appeal.
DISCUSSION
I. REYES’ UNAVAILABILITY AS A WITNESS
The determination that the People have exercised due diligence to procure a witness’s attendance rests in the sound discretion of the trial court. (People v. Jackson (1980) 28 Cal.3d 264, 311.) Based on the facts in this case no colorable claim of abuse of discretion could be made. (Cf. People v. Jackson, supra, 28 Cal.3d at pp. 311-312 [efforts to locate witness included interviewing friends and relatives, checking with jails, hospitals and probation officers and leaving appropriate messages].)
At trial, defendant conceded that the prosecution’s efforts were diligent once they began but argued that they should have begun earlier. As the court pointed out, however, earlier searches for Reyes had also proved fruitless as evidenced by the outstanding bench warrants.
II. HEARSAY TESTIMONY.
A. Reyes’ Preliminary Hearing Testimony
Defendant contends that admitting Reyes’ preliminary hearing testimony into evidence violated his Sixth Amendment right to confront the witnesses against him. This contention fails because “[w]hen a defendant has had an adequate opportunity for cross-examination and the witness is unavailable at trial, use of prior testimony does not violate the defendant’s rights under the federal Constitution. [Citations.]” (People v. Jurado (2006) 38 Cal.4th 72, 115.) The record shows that defendant had an adequate opportunity to cross-examine Reyes at the preliminary hearing.
B. Nagel’s Hearsay Testimony
In Crawford, the United States Supreme Court held that if the hearsay statement of an unavailable declarant is “testimonial” in nature its admission violates the defendant’s confrontation right unless the defendant had a prior opportunity to cross-examine the declarant. (Crawford v. Washington, supra, 541 U.S. at p. 58.) Assuming Reyes’ statements to Nagel were “testimonial,” defendant’s confrontation right was not violated because he had an adequate opportunity to cross-examine Reyes at the preliminary hearing.
III. INEFFECTIVE ASSISTANCE OF COUNSEL.
Defendant maintains that he received ineffective assistance of counsel because his attorney did not discuss his case with him prior to trial and did not call his witnesses, his attorney was working on another case at the same time, and there were numerous continuances to which, he implies, he did not agree.
On appeal, our decision is limited by what is contained in the record of the trial. The trial record does not support defendant’s contention that his counsel provided inadequate assistance.
IV. APPOINTMENT OF EXPERT.
Defendants asks us to appoint an “expert in the field of police practices” under Evidence Code sections 730-732 and Code of Civil Procedure section 909. He does not explain how such an expert would assist his appeal. Therefore, we deny his request.
DISPOSITION
The judgment is affirmed.
We concur: VOGEL, Acting P. J., JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)