Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCE255462, Charles W. Ervin, Judge.
NARES, J.
In May 2006 a jury convicted Raymond Lawson of committing continuous sexual abuse of Amber, a child under the age of 14, between September 1, 2000 and January 10, 2001, in violation of Penal Code section 288.5, subdivision (a) (count 1). The jury was unable to reach a verdict on four counts of oral copulation, and those counts were dismissed (counts 2-5).
All further statutory references are to the Penal Code.
The court sentenced Lawson to the middle term of 12 years.
On appeal Lawson asserts (1) there was insufficient evidence to support the conviction as Amber's testimony was inherently improbable; (2) he was denied the right to a fair trial when the court denied his motion for a continuance to allow his ex-wife Mindi Lawson (Mindi) to testify; (3) the court's instruction under Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 220 violated his due process rights as it prevented the jury from considering a lack of evidence in determining whether there was a reasonable doubt as to his guilt; and (4) CALCRIM No. 224 is defective because it instructs the jury to determine if he was innocent rather than not guilty.
We refer to Mindi Lawson by her first name solely for purposes of clarity.
We conclude that the court committed prejudicial error in refusing Lawson's request for a short continuance in order to allow him to present the testimony of his ex-wife, Mindi, who was under subpoena but unavailable because she was in a hospital giving birth. We reverse the judgment in this matter and order a new trial. Accordingly, we need not reach the remainder of Lawson's contentions.
FACTUAL BACKGROUND
A. People's Case
1. September 2000 to January 2001
Nineteen-year-old Amber H. testified at trial. Amber is the cousin of Lawson's ex-wife, Mindi. Mindi was like a second mother to Amber. When she was 13, Amber would hang out at her grandmother's house. A lot of other family members would visit there as well. When Amber was 14, Lawson and his family lived there. Previous to that, when Lawson's family lived in military housing, Amber would often visit them.
Amber testified that the first molestation occurred in September 2000, when she was 13 years old. She was visiting at her grandmother's house. Amber, Lawson, Mindi, Lawson and Mindi's four-year-old son N., and Mindi's sister Anna watched a movie in Amber's grandmother's bedroom and then went to sleep in that room. Anna slept in a twin bed on the right side of the room. Mindi and Lawson were in a king bed with N. between them. Amber was sleeping on the floor.
Amber was awakened by Lawson putting his hand down her pants and rubbing her vagina. He then put his hand up her shirt and touched her breasts. She did not know what to do. She thought maybe it was a bad dream. Lawson then put her hand on his penis, moved her head up to his penis, and placed his penis in her mouth. He moved her head back and forth for about 10 minutes and then ejaculated in her mouth. All of this occurred while Lawson remained lying down on the bed. None of the other people sleeping in the room woke up while this was happening. Amber lay on the floor, thinking about what had happened, and then fell asleep.
Amber remembered that this first event occurred right before Lawson's son R. was born in 2000. However, when confronted with the fact R. was born in 1999, Amber denied that the abuse started in 1999 when she was 12, but still maintained it occurred immediately prior to R.'s birth.
When Amber awoke the next morning, she saw Lawson and her cousin Aaron sitting around the kitchen table playing computer games on two separate computers. Amber pretended that nothing had happened as she "kind of thought it was just a bad dream, maybe it didn't really happen, that it was just a bad dream." Amber, who was wearing pajama shorts, sat next to Lawson. He slid his hand up her thigh and touched her vagina. It was then that she realized what happened the night before was not a bad dream. The house had an open floor plan and there were about 10 people in the house at the time, including an aunt in the kitchen. However, no one noticed what Lawson was doing.
Shortly thereafter, Amber slept over at Lawson's home in the military housing. She stayed in the guest bedroom, next to Lawson and Mindi's bedroom. As Amber was falling asleep, she heard Lawson get up, go into the laundry room, and start the laundry. She thought that was strange because Lawson was in the Navy, it was late at night, and he had to be up early the next morning. Lawson then entered her room, put her hand on his penis, put his hand on the back of her head, and put her mouth on his penis. After he ejaculated in her mouth, he left the room.
On another occasion, sometime between September 2000 and January 2001, and also occurring at Lawson's military housing residence, Lawson put his hand down her pants, rubbed her, and said, "Just let me put it in." Amber told him, "No," and that she was a virgin. However, he tried anyway. Amber told him to stop because it hurt. She started crying and after a few seconds, he got up and left. When Amber awoke in the middle of the night to go to the bathroom, she noticed she had a little bit of blood in her underwear.
Amber testified that between September 2000 and January 2001, Lawson put his penis in her mouth and ejaculated about 15 times. She also testified that he touched her in a sexual manner approximately 10 to 15 times during that same period. She continued to stay with Lawson and Mindi because "it wasn't worth it to me to stay away from my family."
2. January 2001 to September 2002
In August 2001 Amber moved into her grandmother's house because there was no high school where she had lived previously. At that time, in addition to herself and her grandmother, Mindi, Lawson, their two sons, Mindi's sisters Anna and Jennifer, Mindi's mother and father, her cousins Aaron and Jeff, and perhaps her Uncle Skip, lived at the house. There were a lot of people around the house all the time.
During that time Lawson left the Navy and worked as a field engineer, finding it necessary to travel often. Amber also knew that Lawson had hurt his back at work and, as a result of back surgeries, was immobilized for a short period of time.
During this period of time, Lawson made Amber orally copulate him about 20 or 30 times. She allowed this to happen because if she did not, Lawson would be mean to his kids. These incidents occurred mostly at her grandmother's house and a few times at the military housing. At the military housing, the acts occurred in the guest bedroom and perhaps one time in the garage. The acts at her grandmother's house occurred in several places, including the living room, Lawson and Mindi's bedroom, the bathroom, and the shed in the back yard.
When Amber turned 15 in January 2002, the sexual contacts were not as often as before, occurring only one to three times a month. The sexual conduct stopped about November or December of 2002. In February 2003, shortly after she turned 16, Amber moved in with her Aunt Vicky in Lakeside.
The last time Lawson had sexual contact with Amber was when they were playing hide and go seek with Lawson's sons, N. and R., at her grandmother's house. She and Lawson were hiding behind a motor home in the backyard when he started kissing her and told her to pull down her pants. She complied and Lawson told her to bend over. He then tried to "put himself inside me." When he could not, he told Amber to spread her legs wider, but that did not work. They then heard leaves rustling and knew Lawson's sons were coming, so she pulled up her pants and Lawson went around one side of the motor home and Amber went around the other.
About a month to six months later, probably in March or April of 2003, when she was living with her Aunt Vicky, she told her aunt what had happened. She waited two years before saying anything because "my family was really close and I didn't want to do anything that would upset them or make them not close anymore."
Amber's mother never knew anything about any of these incidents. She never saw anything in Amber's behavior to suggest to her that anything was wrong.
Amber testified that she finally disclosed the molestations because of something one of Lawson's sons said. The boys were playing in the bushes and Mindi was looking for them. When they came out of the bushes, they were putting their clothes back on, and Mindi asked what they were doing. Lawson's younger son said, "Don't worry, Mommy, I didn't pee in his mouth." That caused Amber some concern as to why a little boy "would ever say something like that."
Amber admitted that she had a crush on Lawson before the incidents began, but not after what happened: "I had a crush on him but I didn't want that. I loved my cousin. That was her husband."
3. Child protective services investigation
Amber testified that she spoke with San Diego County Child Protective Services (CPS) social worker Lynn Falvey in May 2003. She believed that she told her everything. She could not recall if she told Falvey about the incident at the computer.
Amber also related to Falvey that she had been molested when she was six, but she did not recall the incident. She was told it happened.
Falvey testified that the initial sexual abuse allegation concerned a report Lawson made of inappropriate activity by Amber's brother Z. with Lawson's children, N. and R. During the course of that investigation, Amber made statements about being molested by Lawson.
On May 9, 2003, Falvey spoke with Lawson at his parents' home. Lawson denied molesting Amber. Lawson told Falvey "he had been in the service previously and had seen what had happened to people that had been in that situation. He said he might even need to plead to the lesser of two evils just to avoid what could possibly happen . . . ." Lawson expressed shock and surprise and tried to figure out why Amber had accused him of molesting her.
On May 16, 2003, Mindi, who was upset and crying, called Falvey. Lawson called Falvey almost immediately afterwards. He admitted to Falvey that he had molested Amber over a three-year period, denied any oral copulation, but said there was inappropriate touching and he was seeking counseling. Falvey denied telling Lawson, "We're going to take [your] kids away if you don't tell me what I need to hear." However, during that conversation on May 16 she did ask Lawson to "stay out of the home during the investigation process, but he was allowed to return home as soon as it was assessed he was not a danger to his children." On May 27, 2003, she informed Lawson he could return to his home. Falvey denied telling Lawson that he would have to admit to having done something in order to maintain further contact with his children.
4. San Diego County Sheriff's investigation
In 2003 San Diego County Deputy Sheriff Miguel Baca was assigned to the child abuse unit. Amber's Aunt Vicky reported Amber's allegations of abuse, and Deputy Baca was assigned to the case on May 8, 2003. Falvey informed Deputy Baca that Lawson had made a partial admission to her. Baca contacted Amber and met with her at her school on May 19, 2003. Amber disclosed the sexual abuse to him. Deputy Baca then called Lawson and said he needed to talk to him about some allegations that Amber was making about him.
On May 22, 2003, Lawson, accompanied by his wife, Mindi, went to the sheriff's station. Detective Baca met them in the first floor lobby and escorted them to the second floor. He told Mindi that he needed to speak with Lawson alone and that she would have to wait in the lobby.
Deputy Baca escorted Lawson to an interview room and told him that he knew some things happened between him and Amber. He told Lawson that he did not have to talk with him, and he was free to leave. Lawson agreed to talk with him.
Initially, Lawson admitted to touching Amber's vaginal area three to four times, in a playful manner, over her clothing. When Baca said, "I know it happened under the clothing," Lawson admitted it did. Lawson denied any oral copulation. Lawson said he was having sexual problems with his wife at the time. Lawson said that the majority of the incidents occurred at the grandmother's house and some occurred in the military housing. He said Amber only stayed at the military housing a couple of times. Baca acknowledged that his report did not mention Lawson stating he touched Amber at that residence.
Baca testified that Lawson also admitted he touched Amber's breast area and that she touched his penis 10 to 15 times, seven or eight times under his clothing. Lawson stated that "he knew what he had done was wrong, that it was despicable." Lawson told him "[h]e felt bad for what he had done."
B. Defense Case
Lawson testified in his own defense. He was 21 to 22 years of age in 2000. He was married to Mindi from 1996 to 2004. He and Mindi have three sons, N., born in 1996, R., born in 1999, and J., born in 2002.
He was in the Navy from August 1996 until September 5, 2000, when he separated early due to a disability he suffered while on duty. He suffered scarring to his lungs and an obstructive airway disease. When he and his family lived in military housing, Amber stayed with them only two or three times, and only overnight, because the military housing rules did not allow for others to stay for extended periods of time. The upstairs of the military housing townhouse in which they lived had three bedrooms, a bathroom, and a laundry room. He and his family moved out of the military housing on August 29 or 30, 2000. They then moved to Mindi's mother's house. The layout of the family living area at that house was open, with no major partitions. There were 10 people living in the house in September 2000, including Lawson and his family.
After Lawson left the Navy, he was a student, then a network engineer for a computer company, and in February 2001 he began working as a field engineer. He traveled extensively for the company and in the first year he spent a lot of time training at the supervising office in Minnesota. He would be gone most of the week and was home only about a day and a half each week. He worked there until early 2002, when he was injured on the job. He sustained a spinal injury that required two surgeries, the first in May 2002 and the second about six months later. As a result of the injury and surgeries he was debilitated for several months. His movement was extremely limited and he was forced to be on bed rest.
Lawson denied that the first incident, in which Amber accused him of forcing her to orally copulate him, ever happened. He testified that on September 29, 2000, he, Mindi, their eldest son N., Mindi's sister Anna, and Amber were watching movies in a bedroom on the east side of the house. His son R. was ill and not sleeping well so Mindi's mother took him to her room for the night so that Lawson and Mindi could get some rest. His son N., who was positioned between Mindi and him on the California king bed they were sleeping on, also had trouble sleeping that night. Anna slept in a twin bed, and Amber slept on the floor between the king bed and the closet. Amber was sleeping on the side of the bed closest to the door and the twin bed. She was sleeping on the floor on the same side of the king bed as Mindi.
Lawson also testified that the incidents that Amber alleged had happened at the military housing also did not occur. The walls in that residence were thin and one could hear what was happening in another room. He could hear his children in their room all the time. Lawson did recall one time when Amber was 13 and sleeping over, and Mindi heard a noise and asked him to check out where the noise was coming from. He discovered it was the clock radio in the guest bedroom and went in and turned if off. As he did so, Amber partially awoke. He told her he was turning the radio off, kissed her on the forehead, and left the room.
Lawson testified that he never engaged in oral copulation with Amber during any of the time periods of her accusations. He testified that the 2002 incident that allegedly occurred behind the motor home never happened. The motor home was on the side of the house, and the area was not secluded—anyone on the other side of the wall in the neighbor's yard could see if anything was going on.
Lawson recalled a few occasions when he and Aaron would play computer games in the kitchen-family room area and Amber would be there. He denied that he ever put his hand on her leg or touched her vagina under her shorts. There was always someone else around who would have seen it happen.
There were always a lot of people at Amber's grandmother's house. He and Mindi's sister Anna were the only ones that worked. Mindi's parents were disabled and often took care of the children and assisted Mindi when he was away. He was never alone in the house with Amber.
Lawson testified that Amber had a "typical teenage crush" on him, "but it began to advance more." Amber always tried to sit between him and Mindi. She would also brush up against him in an inappropriate manner. Sometimes while in a group, she would grab at his hand. According to Lawson, "She would constantly follow me around." She also tried to grab his penis. He attempted to stop her actions by bringing it up with other family members.
Around May of 2003, Mindi walked into the backyard and caught their sons R. and N., and Amber's brother Z. with their pants down, playing with each others' penises. The three boys told him that Z. initiated the contact. CPS began an investigation.
At around the same time, Lawson became aware through Mindi that Amber had made allegations of molestation against him. Shortly thereafter, on May 9, 2003, Lawson spoke with Falvey at CPS about Amber's allegations. He denied doing anything to her.
On May 16, 2003, Falvey called Mindi, who then called him. Mindi told Lawson that he had to talk with Falvey about what Mindi and he had agreed they needed to do. Lawson then called Falvey. Lawson decided he had two choices: "I would either have to admit to having done something and, as a result of that, take counseling or seek counseling through C.P.S. Administration and show remorse for it," or if he did not, he would risk not being able to stay in contact with his own children. He testified that this was based upon the fact that Falvey "gave me two scenarios of what she said would most likely happen."
Lawson testified that he lied to Falvey when he told her he had touched Amber in an inappropriate manner. He did so because he believed that unless he admitted to something, he would not have access to his children.
Shortly thereafter, Deputy Baca contacted Lawson and told him they needed to talk. He and Mindi went to the sheriff's station. Deputy Baca met them in the lobby and escorted them to the second floor. He told Mindi that she would either have to wait in the lobby or the car.
He was escorted by Deputy Baca to an interview room and left there for about 40 minutes. Deputy Baca told Lawson that he did not have to speak with him. Lawson believed that he had to and did not feel he was free to leave at any point during the interview. Lawson testified that he lied to Deputy Baca and told him he touched Amber three or four times on her vagina over her clothes. He never told Deputy Baca that he touched Amber under her clothes.
Lawson testified that he made the admissions "because I was led to believe that if I didn't make at least some sort of admission, that I would suffer legally and that I may not be allowed to be around my children." He acknowledged that his statement to Deputy Baca that Amber had touched his penis was "somewhat" true. Lawson testified that Amber would grab at his penis. He told her to stop and made other family members aware of the situation. Lawson acknowledged that he told Deputy Baca that his actions were despicable, that he detested himself for what he had done, that he understood what he did was wrong, and that he regretted what he had done, but stated he was lying to Deputy Baca when he said that.
Lawson testified that he saw Amber a couple of times a month when she was 13 to 15 years old. Between September 2000 and January 2001, his contacts with Amber were very infrequent, usually on holidays and perhaps a couple of other times a month. Between January 2001 and September 2001 it was roughly the same. Amber was usually with other members of her family when she visited at her grandmother's home. When she lived there, she usually slept on the large couch in the living room and sometimes slept on a futon in a separate room with Anna.
Lawson stated that there was no truth to any of the allegations concerning his touching Amber or having her orally copulate him.
DISCUSSION
I. DENIAL OF CONTINUANCE
Lawson asserts the court abused its discretion and violated his federal constitutional rights in denying his request for a continuance of his trial to permit him to call his ex-wife Mindi as a witness. We conclude that the court committed prejudicial error in refusing Lawson's request for a short continuance in order to allow him to present the testimony of Mindi, who was under subpoena but unavailable because she was in the hospital giving birth.
A. Background
1. Motion to continue trial date
On Tuesday, May 2, 2006, the date set for trial, defense counsel informed the court that Mindi was, until the prior week, cooperative as a witness. However, when the defense attempted over the weekend to have her sign a declaration confirming her testimony, they had difficulty reaching her. In an "overabundance of caution" defense counsel prepared and served her with a subpoena. The day prior to trial, she called defense counsel, confirmed that she had received the subpoena, and that she would be there the next day for trial. However, at 7:30 a.m. that morning, one of Mindi's sisters contacted the defense investigator and defense counsel's paralegal, informing them that Mindi had been taken to Mary Birch Hospital as she was having contractions. Counsel also informed the court that Mindi's sister was present outside the courtroom.
Defense counsel made an offer of proof as to Mindi's testimony and requested a 20-day continuance: "The testimony which the defense anticipates the witness giving is that she was married to [Lawson] from 1996 to 2004, that until late August, early September 2000 they lived in military housing . . . that upon leaving Navy housing, they moved to her grandmother's house . . . that they shared the house with a number of specified people, including the two sons. . . . The alleged victim in this case, Amber, is her cousin and that she was at that residence from time to time during the relevant period. She would testify as to how the alleged victim conducted herself towards [Lawson], and she will testify concerning the circumstances . . . which gave rise to the alleged victim coming forward and making the allegations against [Lawson]. [¶] Under those circumstances, Your Honor, this witness is a crucial witness for the defense, and because of her unavailability due to her hospitalization, the defense seeks a continuance of the trial. The defense would suggest May 22nd as an alternative date."
The prosecutor responded that defense counsel knew that Mindi was in her last month of pregnancy and was due at any time. The prosecutor further represented that he had talked to her three weeks earlier and she had indicated to him that "she was likely not going to be cooperative with any party" and that she had "become fairly uncooperative with defense counsel." The prosecutor further argued that her testimony was not material and would essentially involve a debate as to whether Lawson lived in military housing and when. The prosecutor also complained that the defense had not turned over reports from the defense investigator, noted the trial had been continued several times, and that the alleged crimes had occurred in 2000.
Defense counsel responded that while the offenses occurred in 2000, "between the investigation in 2003 and November 2005 there seems to have been a complete [dearth] of action on the part of the prosecuting authorities to actually move the case forward."
The court stated that a declaration could have been taken under penalty of perjury to be used in case the witness was declared unavailable. Defense counsel responded that he researched the issue and concluded that to be admissible it would have to be a declaration against interest, which Mindi's testimony would not constitute.
The court then stated that "her testimony has some, perhaps, minimal probative value, at best, but what is really troubling the court is, notwithstanding her medical condition, that she defies the process of this court. . . . Although it's been asserted that she is in the hospital, I don't have any proof that she is in the hospital. It's not, I think, the court's obligation to do an investigation to determine whether or not she is or she isn't. I am going to find at this point in time she has defied the process of the court. I will issue a bench warrant, set bail in the amount of $15,000."
At defense counsel's insistence, the court later rescinded the bench warrant, defense counsel arguing he did not want "someone removed from the hospital and brought here."
The court then denied the motion for a continuance, finding (1) the trial had been continued twice within the last month; (2) the witness was only served with a subpoena the day before, even though counsel had previously answered ready on the case; (3) it had been known for a long time that the witness was reluctant to participate in the proceedings.
2. Motion for new trial
Following the trial of this matter, Lawson brought a motion for new trial, arguing, among other things, that Lawson was denied a fair trial as a result of the court denying his continuance of the trial. The motion stated that Mindi was in the hospital on May 2 and May 3, and gave birth on May 4.
In support of the motion Lawson attached a declaration from Mindi. In the declaration Mindi stated that until late August or early September 2000, she and Lawson lived in Navy housing. After that, they moved to her grandmother's house. She declared that they shared the house with five other family members, sometimes more, and that "[i]t was a crowded house with little privacy."
She stated that Amber was her cousin and that she would visit or stay from time to time at the grandmother's house. She described Amber's actions towards Lawson as follows: "She obviously had a crush on my husband. I noticed that she would try to be alone with him. Even when others were around she would try and position herself close to him. Eventually I had to talk to Amber about this and told her to 'cut it out.' [¶] [Lawson] was constantly and visibly uncomfortable with the way that Amber was acting. He asked me several times to talk to Amber to get her to stop acting this way."
Mindi also declared, "In about March 2003 Amber's brother [Z.] was discovered with our sons [N.] and [R.]. [Z.] is older than our boys. It appeared that [Z.] had been either inappropriately touching our boys or getting them to touch themselves or each other. The police were notified but [Z.] was not charged. [¶] It was only when her brother [Z.] got into trouble that Amber came out with these allegations against [Lawson]."
Finally, Mindi stated, "I do not believe that [Lawson] did the things Amber alleges. I do not believe he had either the inclination or the opportunity. It was a very crowded house with people always around."
The court denied the motion for new trial. The court noted that on March 20, 2006, defense counsel announced ready for trial, but on April 17 moved for a continuance to May 1. On that date, counsel announced ready for trial. The court noted that on the trial date of May 2, defense counsel asked for a 30-to-60-day continuance due to the unavailability of Lawson's ex-wife. The court then noted that trial proceeded from May 2 until May 9, when the jury hung on counts 2 to 5, and found Lawson guilty of count 1. The court stated that it had placed that timeline on the record because "there was the ability to place this witness under subpoena long before the date of trial." The court also stated that, although it had no proof, it would accept at face value that Mindi was giving birth on May 4. The court noted that it had recalled the bench warrant and subpoena on the defense's request. The court also noted that defense counsel did not rest until the day after Mindi gave birth. The court then stated: "Had Mr. Luckman been asserting due diligence and checking to see what her availability is, he might have been able to apprise the court as to whether or not she was in the hospital, verified that fact, and in fact then request additional time for this hearing. [¶] A 30-to-60-day continuance after answering ready several times? Unconscionable. And then asking the court to recall the warrant. As it relates to that prong of the denial of a fair trial motion, it is denied."
The record reveals that in fact defense counsel requested a 20-day continuance.
See footnote 4, ante.
B. Analysis
A criminal defendant must show good cause to obtain a continuance of trial. (§ 1050, subd. (e); People v. Jenkins (2000) 22 Cal.4th 900, 1037 (Jenkins).) Where, as here, the defendant seeks a continuance to secure the attendance of a witness, he must establish that he "exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven." (People v. Howard (1992) 1 Cal.4th 1132, 1171.) "The absence of a material witness for the defense . . . has long been recognized as a ground for continuance . . . [when] the proposed testimony [is] material and cannot be elicited from another source." (Jennings v. Superior Court (1967) 66 Cal.2d 867, 876.)
While the trial judge has a certain amount of discretion in determining whether a continuance is appropriate, "that discretion may not be exercised in such a manner as to deprive the defendant of a reasonable opportunity to prepare his defense." (People v. Maddox (1967) 67 Cal.2d 647, 652). "[A] myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend . . . an empty formality" (Ungar v. Sarafite (1964) 376 U.S. 575, 589) because "it is a denial of the accused's constitutional right to a fair trial to force him to trial with such expedition as to deprive him of the effective aid and assistance of counsel." (White v. Ragen (1945) 324 U.S. 760, 764; see also Taylor v. Illinois (1988) 484 U.S. 400, 409 ["The right to offer testimony is thus grounded in the Sixth Amendment"]; Washington v. Texas (1967) 388 U.S. 14, 19 ["The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense"]; Crane v. Kentucky (1986) 476 U.S. 685, 690 ["Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, [Citation] or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, [Citation] the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense'"].)
"Few rights are more fundamental than that of an accused to present witnesses in his own defense." (Chambers v. Mississippi (1973) 410 U.S. 284, 302.)
Accordingly, numerous courts have found it to be error when the trial judge denied a defendant's request for a continuance for the purpose of obtaining relevant testimony from an otherwise unavailable witness. (Jennings, supra, 66 Cal.2d 867, 876 [writ of prohibition granted when court erroneously denied four-day continuance at preliminary hearing to obtain testimony of witness who was present with defendant at crime scene and could be cross-examined about defendant's intent]; People v. Buckey (1972) 23 Cal.App.3d 740, 744 [error in unlawful possession case to deny request for continuance to obtain testimony of doctor who had allegedly prescribed controlled substance]; Bennett v. Scroggy (6th Cir. 1986) 793 F.2d 772, 774-775 [habeas corpus granted where trial judge refused to grant continuance to secure presence of witness who would testify that manslaughter victim had a reputation for violence]; Hicks v. Wainwright (5th Cir. 1981) 633 F.2d 1146, 1148-50 [it was error to deny continuance to obtain testimony of expert witness concerning insanity defense, notwithstanding trial court's busy schedule]; Johnson v. Johnson (W.D. Mich. 1974) 375 F.Supp. 872, 874 [habeas corpus granted when trial judge denied continuance for out-of-state alibi witness, and prosecution had not asserted any special prejudice resulting from delay]; U.S. v. Flynt (9th Cir. 1985) 756 F.2d 1352, 1359-1360, modified on other grounds U.S. v. Flynt (9th Cir. 1985) 764 F.2d 675 [contempt order vacated where trial court had denied defendant's request one day prior to hearing for a 30-day continuance for the purpose of obtaining psychiatric examinations and possible expert witness testimony]; U.S. v. Powell (9th Cir. 1978)587 F.2d 443, 446 [reversible error to deny continuance to secure presence of overseas witness whose exculpatory testimony would not be cumulative.])
Four factors bear on whether a trial court has properly exercised its discretion in granting or denying a continuance to obtain a witness's testimony: (1) the length of time needed to obtain the witness's testimony and the inconvenience or prejudice resulting from that delay, (2) defendant's diligence in locating the witness and obtaining his presence in court, (3) the anticipated substance of the witness's testimony, and (4) the degree to which the witness's testimony is likely to be useful or favorable to the accused. (People v. Laursen (1972) 8 Cal.3d 192, 204; People v. Buckey, supra, 23 Cal.App.3d at p. 744.) While these factors must be evaluated on a case-by-case basis, ultimately the question becomes "whether substantial justice will be accomplished or defeated by a granting of the motion." (People v. Laursen, supra, 8 Cal.3d at p. 204.) Further, in order for a continuance to be warranted, the defendant need not show that the proffered testimony is "vital," only that it is material. (Jennings, supra, 66 Cal.2d at p. 876.)
In this case, counsel for Lawson demonstrated sufficient diligence. Mindi was under subpoena and agreed that she would appear at trial. That she went into labor the morning of the trial is not the fault of defense counsel. Further, contrary to the court's comments in denying the continuance, counsel presented sufficient evidence that Mindi was, in fact, unavailable. Her sister was present at court and could have testified, if need be, to that fact. Nor was it necessary or appropriate to have a bench warrant issued for Mindi. It would have been unconscionable for the court to have officers remove her from the hospital either immediately before or after she gave birth.
The fact that the case had been pending for some time also did not did justify denying the motion to continue the trial date. Although the investigation began in 2003, Lawson was not charged until December of 2005. Thus, the delay in bringing this matter to trial was not solely the defense's fault. Further, the only continuance requested by defense counsel prior to Mindi becoming unavailable was for a period of two weeks. Additionally, contrary to the court's statements, counsel only requested a 20-day continuance to obtain the testimony of Mindi, not 30 to 60 days. The amount of time requested was reasonable in order to give Mindi time to recover from the delivery of her baby. If the court believed a shorter time frame was warranted, it could have granted a shorter continuance, as opposed to denying the motion outright.
Further, even if there were a serious dispute about defense counsel's diligence, the continuance should still have been granted, given the rights implicated. (See U.S. v. Flynt, supra, 756 F.2d at pp. 1359-1360 (although defendant "might have exercised greater diligence than he did," the court finds "the degree of diligence to have been sufficient" because "the continuance would have served a useful purpose, granting the request would not have inconvenienced the court, the other party or any witnesses, and [defendant] has suffered severe prejudice as a result of the denial of his motion").)
Most important, Lawson demonstrated that Mindi's testimony was not only material, it was crucial to his defense. There was no DNA evidence in this matter. The case hinged largely on the testimony of Amber and Lawson and their respective credibility. Mindi's testimony was not cumulative of Lawson's, it was corraborative. Mindi was present during the time of the alleged molestations and would have testified as to whether Lawson had the opportunity to engage in the alleged acts, or, indeed, whether some of them were physically possible. For example, the count 1 continuous sexual abuse charge was alleged to have occurred between September 2000 and January 2001, when Amber turned 14. Mindi could have corroborated Lawson's claim that the acts that allegedly occurred at the military housing residence could not have occurred because she and Lawson had moved out before they were alleged to have occurred. She could corroborate Lawson's claim that, given his work travel schedule, he could not physically have been present to engage in as many episodes as Amber claimed. She could also corroborate his claim that he was never in a position to be alone with Amber given the number of people living in the grandmother's house.
Mindi's testimony was also critical to show Amber's alleged aggressive actions toward Lawson, and Lawson and Mindi's attempts to make her stop. Perhaps most important, she was prepared to testify in corroboration of Lawson's claim that Amber only made accusations against Lawson after he and Mindi reported Amber's brother Z.'s actions toward their children to CPS.
Although not specified in the declaration, Mindi presumably could have bolstered the weakest part of his defense—the reason he gave partial admissions to CPS and the police. He testified at trial that he and Mindi agreed that he would do that to ensure he would not be denied access to his sons. If she confirms that testimony, his defense is considerably strengthened. If not, it is unlikely he would have placed her under subpoena as a defense witness.
The prejudice to Lawson caused by the denial of the continuance is apparent. The jury deadlocked on counts 2 through 5, which were the specific acts of oral copulation, a mistrial was declared, and those counts dismissed. As the court noted, in denying Lawson's motion for new trial on the basis there was insufficient evidence to support the count 1 charge of continuous sexual abuse, "[a]nd the only difference between the type of evidence as it relates to count 1 and the other counts is that, in fact, the defendant, in his statements to [Deputy] Baca, admitted culpability for count 1. And, in fact, that one juror that hung on the other counts was just not going to accept the word of the victim against the word of the defendant. [¶] And it's clear in my mind that that's how those issues were resolved. This was not a case where there was some DNA evidence or this was a CSI type of situation. It was, basically, a situation where there was testimony of a victim and testimony of the defendant and some other corroborating testimony."
As the court noted, at least one juror did not believe Mindi as to the specific acts of oral copulation, refusing to convict Lawson of counts 2 through 5. Therefore, Lawson's partial admissions to CPS and Deputy Baca obviously played a significant role in the jury's convicting Lawson on count 1, as he only admitted to inappropriate touching. Further, the partial admissions Lawson made to CPS and Deputy Baca were vague and did not specify that they occurred between September 2000 and January 2001. Therefore, Mindi's corroborative testimony that (1) the events of continuing sexual abuse that allegedly occurred at the military housing residence between September 2000 and January 2001 could not have occurred because they did not live there at that time, (2) Lawson did not have the access or privacy at the grandmother's house to engage in the acts that allegedly occurred there, (3) Amber acted inappropriately towards Lawson, and he and Mindi attempted to put a stop to it, and (4) her testimony that Amber's charges were in retaliation for their complaints about Amber's brother Z. was critical to Lawson's ability to challenge Amber's credibility and defend against the count 1 charge.
In view of the critical nature of the issue before the trial court, the materiality of the evidence to be presented, and the procedural posture of the hearing on the motion, the granting of the motion would have accomplished substantial justice. (People v. Zapien (1993) 4 Cal.4th 929, 972; People v. Iocca (1974) 37 Cal.App.3d at 73, 79-80.) We conclude that the trial court abused its discretion in refusing a continuance to permit counsel to bring the witness to court. Under the circumstances, the abuse of discretion resulted in prejudice to defendant, and the matter must be remanded for a new trial.
DISPOSITION
The judgment is reversed.
WE CONCUR: BENKE, Acting P. J., HALLER, J.