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People v. Kennedy

Court of Appeals of California, Fourth Appellate District, Division Two.
Nov 20, 2003
E033253 (Cal. Ct. App. Nov. 20, 2003)

Opinion

E033253.

11-20-2003

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RAY KENNEDY, JR., Defendant and Appellant.

Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Meagan J. Beale, Supervising Deputy Attorney General, and Heather F. Wells, Deputy Attorney General, for Plaintiff and Respondent.


A jury convicted defendant of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1), count 1), assault with intent to commit a felony (§ 220, count 2), and sexual penetration by foreign object (§ 289, subd. (a)(1), count 3). The jury found true the allegations that as to counts 1 and 2 defendant committed the crimes under circumstances involving domestic violence (§ 12022.7, subd. (e)) and as to count 3 that he inflicted great bodily injury within the meaning of section 12022.8. The court sentenced him to 14 years in state prison.

Defendant appeals, contending the trial court committed reversible error by finding the prosecution used reasonable diligence to locate the victim and by admitting her prior testimony and out-of-court statements. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At the preliminary hearing, the victim testified that she and defendant had been involved in a sexual relationship and they were camping out in a tent near the Rialto airport. On the evening of May 29, 2002, they had sex and went to sleep. She was awakened by defendant who was hitting her. He rolled her onto her stomach, shoved his fist into her rectum and told her "he was going to bust [her] open." She screamed in pain and begged him to stop. She had never engaged in anal sex with him. When he finally stopped, he asked her to "stick something up him." He had made a similar request before, but she had not complied. She was scared and asked him to let her "get a drink from Johnny," who also camped in the area. She stayed with Johnny for the rest of the evening. When she awoke the next morning, she had drops of blood everywhere. She had follow-up medical visits scheduled because her "muscles were ripped in so many places, . . ."

During defendants jury trial, the victims testimony as well as her statements to the officers and the health care workers were admitted, over defendants objections.

During the jury trial, Rialto Police Officer Black testified he investigated the reported rape. The victim told him that when she awoke the morning after the offense, she had difficulty moving and her pants were covered with blood. She had asked John Lipke, the resident of the nearby campsite, to drive her to Jessie Chavezs house.

Jesus Chavez testified he found the victim, his former girlfriend, at his front gate crying and asking for help. He picked her up and carried her into the house. She had bruises from her head to her heels and was bleeding profusely. His sister took the victim to the nearby fire station.

Fontana Police Officer Szalonek testified she saw the victim at the fire station. When she asked the victim what had happened, the victim began to cry hysterically. The victim had a lot of blood in the crotch area of her pants and was complaining of pain to her abdomen and her rectum. She asked the officer to accompany her to the hospital where she had to be wheeled into the building because she had trouble standing and was hunched over in pain. She eventually told the officer about the assault, but would not identify her assailant. She said she was not allowed to do so, then later she said she could not remember who the assailant was.

A sexual assault nurse at Kaiser testified she examined the victim. The victim smelled of alcohol and her speech was slurred. She was reluctant to talk about the assault, but said an acquaintance held her down and stuck his fist and arm into her rectum. She had bruises on her face, legs, buttocks and inner arms. Her rectal region was bloody and bruised. She had internal and external bleeding as well as a large deep rectal tear. In 22 years of emergency nursing, the nurse had never seen an anal tear this significant.

Defendant testified that on May 29, 2002, he and the victim had been drinking vodka and beer. They had consensual sex and then she fell asleep naked. When the victim began to wake up, he started hugging and kissing her. He asked if he "could play with her butt" and she agreed. First he put one finger in and out of her rectum, then he put two fingers. He had done this on previous occasions to get her aroused. She did not tell him to stop and acted bored. He started putting his fingers in and out faster and began using four fingers. When she told him to stop because it hurt, he stopped. He testified she was on the last day of her period. He denied holding her down, hitting her or putting his fist into her rectum. He put four fingers up to his knuckles in her rectum. Afterwards, he asked her, "Will you do that to me, then?" and she said she would think about it, but she wanted a drink. She had not complained in the past when he had put two fingers in her rectum. On an earlier occasion, he had put five batteries up her rectum while she was passed out. She was bruised because she fell down when she was drunk.

Defendants father testified he had slept with the victim for three years. They lived together "[u]nder a tree, in a storage unit, several different places." He and the victim had engaged in bondage sex. Once he had tied her to a tree while she was naked and defendant had watched. He and defendant both had engaged in sex with her. He, defendants father, had anal sex with the victim. He has a split personality and had sex with the victim while he was dressed as a woman. Once defendant had put five D batteries in the victims rectum after she had passed out. She did not know about it until she went to the bathroom. They all laughed about it afterwards. She would leave the camp and once she returned with cigarette burns on her skin. He saw her about six weeks before the trial. When he mentioned rape, she laughed and said, "He didnt rape me." She said defendant had put his hand in her rectum, it was consensual and it had hurt. All three of them drank a lot.

DISCUSSION

Defendant contends the trial court committed reversible error by finding that the prosecutor had used reasonable diligence to locate the victim and by admitting her prior testimony and out-of-court statements. He argues she was not "unavailable" within the meaning of the Evidence Code and his state and federal rights to confront and cross-examine her were violated. We affirm.

In certain circumstances, evidence of former testimony is admissible as an exception to the confrontation requirement where the declarant is unavailable as a witness. (People v. Cromer (2001) 24 Cal.4th 889, 897.) Similarly, statements made by a victim describing a physical injury which are made near the time of the event to a law enforcement official are admissible where the victim is unavailable as a witness at the trial. (People v. Hernandez (1999) 71 Cal.App.4th 417, 423-424; Evid. Code, § 1370, subd. (a).) "Generally, a witness is not unavailable for purposes of the right of confrontation `unless the prosecutorial authorities have made a good-faith effort to obtain [the witnesss] presence at trial. [Citations.] [U]nder California law the prosecution must show reasonable or due diligence in locating the witness.[]" (People v. Cromer, supra, 24 Cal.4th 889, 897, fn. omitted.)

"[T]he term `due diligence is `incapable of a mechanical definition, but it `connotes persevering application, untiring efforts in good earnest, efforts of a substantial character. [Citations.] Relevant considerations include `"whether the search was timely begun" [citation], the importance of the witnesss testimony [citation], and whether leads were competently explored [citation]." (People v. Cromer, supra, 24 Cal.4th 889, 904.)

Following a pretrial hearing in this case, the trial court found the victim was unavailable and the prosecution had exercised reasonable diligence. In reviewing the trial courts determination, we apply independent review to the undisputed facts and conclude the prosecution demonstrated due diligence in its efforts to locate the victim for trial.

At the pretrial hearing, Rialto Police Detective Wells testified she had contact with the victim at the preliminary hearing and when she served a subpoena on the victim at the Chavez residence on July 1, 2002. The victim told her that defendants father had said it was physically impossible for defendant to have accomplished the sexual penetration that she claimed. She also said that defendants father had threatened her and that she had better disappear. When the detective inquired further, the victim "said that he made a motion like a gun . . ." and said "[y]oure dead meat if you testify." The victim was not cooperative when the detective served the subpoena. On August 28, 2002, the detective unsuccessfully attempted to serve a subpoena on the victim at the Chavez residence. Mr. Chavez said he was concerned for her, so he looked through her purse which she had left behind and found a notebook. She had written about the offenses. The detective accompanied by Officer Hernandez went to the area where the offenses occurred as well as to several other locations, but they were unable to find the victim. They also unsuccessfully checked the Highland apartments on Victoria Avenue where defendants father occasionally stayed. Defendants father told Detective Wells that he had not seen the victim, but that was not unusual. When the detective asked defendants father about the threats the victim said he made to her, defendants father said he had talked to her about this case. Detective Wells asked Officers Becnel, Hernandez and Black to keep an eye out for the victim as they patroled. They were unsuccessful. Detective Wells also asked Detective Lindsay to follow defendants father to see if he met with the victim. On September 24, 2002, Detective Wells contacted the Crime Impact Team and asked them to check a Motel 6 in San Bernardino. The Crime Impact Team showed the victims photograph to people at the Motel 6, but they received no affirmative responses from anyone. The Crime Impact Team also checked a park on Fifth Street in San Bernardino and showed the victims photograph to people there, but they were unable to locate her. On October 1, 2002, Detective Wells asked Detective Lindsay to go to the Arrowhead Community Hospital because the victim had a doctors appointment, but the victim was not there.

The prosecutors Investigator Waldrop testified that on September 5, 2002, he attempted to serve the victim in this case. He ran the district attorneys STAR database which revealed she had no cases pending. She had been taken into custody on bench warrants, but she no longer was in custody. He checked the CNI jail records. She had not visited defendant in jail at any time. He checked the United States Post Office, but she had not put in a change of address. Although she had received welfare assistance, she was not currently receiving welfare. On September 6, 2002, he checked several addresses provided by the Department of Motor Vehicles. She was not at the Rialto address and the residents did not know who she was. Mr. Chavez, the occupant of the Fontana residence said the victim was his former girlfriend, but she no longer was there. The investigator checked four or five areas of the Rialto airport where transients were known to stay, but he was unable to locate the victim. He checked the Victoria Avenue apartments in Highland several times, but the residents of the apartments there did not know her and had not seen her. He left his business card with a handwritten message to the victim at all of the addresses, but he received no response. On September 23, he received information that she was staying at a Motel 6 with a friend, but he was told neither the victim nor her friend was registered. He checked two addresses for the victims friend and left his business card, but he was unable to locate the friend. At the investigators request, an investigative technician, Ms. Barnes, checked the Highland apartments but the victim was not there.

Jesus Chavez testified the victim, who used to be his girlfriend, had stopped at his house the Wednesday before the hearing. She told him she was scared to testify because she had been threatened, but she would not identify the person who threatened her. She said she was afraid of defendant, the person who hurt her. She did not tell Mr. Chavez where she was living. She was going to the hospital to see Dr. Wong at the Arrowhead Regional Hospital for surgery. She left her purse and a notebook in which she had written about the offenses. She had not returned to retrieve them and he had no idea where she was. She previously had called Mr. Chavezs house while he was away and left a message. Mr. Chavez gave this information along with the phone number on his caller I.D. to the prosecutor.

The trial court found the victim was unavailable and the prosecution had exercised reasonable diligence.

Although defendant acknowledges considerable efforts were made, he argues a critical avenue was overlooked because there was no evidence that an officer went to speak to Dr. Wong in person after contacting the physicians secretary. To bolster his argument, defendant cites People v. Louis (1986) 42 Cal.3d 969. There, the witness was critical to the prosecutors case as he provided "the sole evidence identifying defendant as the trigger man" in a capital case. (Id. at p. 989.) His testimony "plainly spelled the difference between life and death," but his credibility was undisputably minimal. (Id. at p. 974.) He was "the very type of witness that requires, but is likely not to appear to submit to, cross-examination before a jury." (Id. at p. 991.) Notwithstanding that he was known to be highly unreliable and likely to disappear, he was released from custody on his own recognizance through the efforts of the prosecution. (Id. at pp. 978, 992.) He promptly vanished. (Ibid.) The totality of the evidence, especially the prosecutors own admissions established that it failed to exercise virtually any effort to prevent the witness from becoming absent. (Id. at p. 991.) The Supreme Court concluded the prosecutor failed to exercise due diligence in securing the witness. (Id. at pp. 993-995.)

In the case before us, in contrast, the prosecution played no role in the disappearance of the victim witness who had testified at the preliminary hearing on June 18, 2002. Furthermore, there was no reason to question her credibility and her testimony and statements were substantiated by defendants testimony regarding his sexual conduct with her and her injuries which were established during trial.

People v. Wise (1994) 25 Cal.App.4th 339, is instructive. In Wise, the witness was a victim. He was not facing criminal charges and the record did not indicate any reason for the prosecution to believe he would disappear. The prosecution attempted three times to serve him at his Church Street address. They also tried a Haight Street address and a Scott Street address, believed to be his last known address. The post office, the local jail, the hospital and the coroner were contacted. The Court of Appeal found due diligence, stating: "`That additional efforts might have been made or other lines of inquiry pursued does not affect [our] conclusion. . . . It is enough that the People used reasonable efforts to locate the witness. [Citations.]" (People v. Wise, supra, 25 Cal.App.4th 339, 344, quoting People v. Cummings (1993) 4 Cal.4th 1233, 1298.)

Here, too, the witness was the victim who had no pending criminal charges. The Department of Motor Vehicles, the post office, the local jail, the hospital and all the victims known addresses as well as the locations that transients were known to frequent were checked. From August 28, 2002, until trial began on October 9, 2002, Detectives Wells and Lindsay, Investigator Waldrop, Investigative Technician Barnes, the Crime Impact Team and Officers Becnel, Hernandez and Black unsuccessfully searched for the victim. Residents of addresses provided by the Department of Motor Vehicles either did not know her or did not know where she was. The United States Post Office had no change of address for her. While she previously had received welfare assistance, she was not currently receiving welfare. She was not in custody and had not visited defendant in jail. A park in San Bernardino and locations at the Rialto airport where transients were known to stay failed to produce any information about her whereabouts. She had told several people that she was scared and that defendants father had told her to disappear. Defendants father acknowledged discussing the case with her. She had left a written record of the crimes along with her purse when she went to the Arrowhead Regional Hospital for surgery, but officers awaiting her arrival there were unable to locate her. Business cards and messages left for her and her friend elicited no response. As the record reveals, efforts to contact the victim began in August 2002, and continued until the trial court found due diligence. Thus, the search was timely begun and the leads were competently explored with persevering application and substantial efforts. Consequently, as in Wise, that additional efforts might have been made by contacting Dr. Wong after talking to his secretary and unsuccessfully attempting to locate the victim at Arrowhead Regional Hospital does not affect the trial courts finding of due diligence. (See People v. Cummings, supra, 4 Cal.4th 1233, 1298; People v. Wise, supra, 25 Cal.App.4th 339, 344.) Cases have upheld trial court findings of due diligence where the prosecution attempted to locate the witness shortly before or during the trial. (People v. Linder (1971) 5 Cal.3d 342, 345 [effort began one day before trial]; People v. Smith (1971) 22 Cal.App.3d 25, 31 [effort began one week before trial]; People v. Rodriguez (1971) 18 Cal.App.3d 793, 796 [effort began six days before trial].) Here, the attempts to locate the victim began in August and continued until trial began in October 2002.

In light of the foregoing, we agree with the trial court that the prosecution demonstrated due diligence. Accordingly, we conclude the trial court did not err and thus it is unnecessary for us to address defendants argument that the error was prejudicial.

DISPOSITION

The judgment is affirmed.

We concur: McKINSTER, J., RICHLI, J. --------------- Notes: All statutory references are to the Penal Code unless otherwise indicated.


Summaries of

People v. Kennedy

Court of Appeals of California, Fourth Appellate District, Division Two.
Nov 20, 2003
E033253 (Cal. Ct. App. Nov. 20, 2003)
Case details for

People v. Kennedy

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RAY KENNEDY, JR.…

Court:Court of Appeals of California, Fourth Appellate District, Division Two.

Date published: Nov 20, 2003

Citations

E033253 (Cal. Ct. App. Nov. 20, 2003)