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People v. Livingston

Court of Appeals of California, Second Appellate District, Division Three.
Nov 25, 2003
No. B162369 (Cal. Ct. App. Nov. 25, 2003)

Opinion

B162369.

11-25-2003

THE PEOPLE, Plaintiff and Respondent, v. TRAYVEON MASSIE LIVINGSTON, Defendant and Appellant.

Rachael Lederman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General and David A. Wildman, Deputy Attorney General, for Plaintiff and Respondent.


Defendant and appellant Trayveon Massie Livingston appeals the judgment entered following a jury trial that resulted in his convictions for three counts of false imprisonment by violence or menace, seven counts of second degree robbery, and conspiracy to commit robbery. Livingston was sentenced to a term of 21 years in prison.

Livingston contends the trial court erred by: (1) denying his motion for a new trial based on newly discovered evidence; (2) failing to sua sponte continue his trial so that a witness could testify; and (3) admitting evidence under the former testimony exception to the hearsay rule. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. Peoples evidence.

(i) Robbery of XIV Karats jewelry store.

Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11), the relevant evidence established that Livingston was involved in the May 24, 2000 robbery of the XIV Karats jewelry store located in Beverly Hills. On that date, shortly before XIV Karats was scheduled to open, Terrell Wright and Glenn Davis, who were armed with guns, and two other men entered the building in which XIV Karats was located. The men accosted and bound two security guards and two employees, and forced them to the floor in front of an elevator. They forced three other employees to lie on the floor of an office inside the store. The robbers absconded with approximately $750,000 worth of jewelry and fled in a blue Chevrolet Celebrity with the license plate 2VHZ828.

During the robbery, Wright used a walkie talkie to communicate with and receive directions and information from, a person or persons outside the store. Other evidence, including the robbers knowledge of store procedures, surveillance cameras, and personnel suggested they had an inside source of information. Allen Jenkins was a former XIV Karats employee. His sister was employed at XIV Karats on the date of the robbery, but called in sick that morning. A search of Jenkinss home revealed a store surveillance videotape depicting XIV Karats opening procedures, hidden in a closet. Jenkins did not have permission to take the tape, nor was there a legitimate reason for him to have it.

(ii) Evidence linking Livingston to the crimes.

Police learned that the Chevrolet Celebrity had been sold by a towing company to Charlie Romo, who was in the business of selling and buying cars. The day after the robbery, Romo told police that he sold the car to a man named "Tray" or "Tray K," who lived at 2411 Budlong Street and drove a maroon Chevrolet Impala with the license plate "DUBBZ." Livingstons nickname was Tray or Tray-K. The Impala was determined to be registered to Livingston. Romo identified Livingston as the purchaser of the Celebrity in a six-pack photographic lineup. Romo refused to sign a statement evidencing the identification, however. He told a detective that he was afraid of Tray and feared for his life. Romo testified that he had told a detective he had been threatened by people in the neighborhood if he "came to court," but this was false. The real reason he refused to sign a document evidencing the identification was because, although the person he identified looked like the purchaser of the car, he was unsure. At the first trial and the preliminary hearing, Romo failed to identify Livingston as the purchaser. He also testified at the first trial that he was not sure the photographic lineup shown to him at trial was the one he was shown by police, and he did not recognize the photographs. At the time of Livingstons retrial, Romo could not be found and his preliminary hearing and trial testimony were read to the jury.

Livingston was arrested when driving away from the Budlong Street address in his burgundy Impala. In Livingstons Impala, police found a cellular telephone with the number 323-864-4516. The cellular telephone had been issued in the name of a woman who had been the victim of identity theft. She knew nothing about the cellular telephone or the account.

Telephone records and other evidence established that Livingston had used the cellular telephone in the early mornings of May 23 and 24, 2000, to report to his employer, Pacific Bell, that he would be absent from work. Over 25 calls had been placed in May 2000 from the cellular telephone to a pager used by Jenkins. On the morning of the robbery, calls were placed from the cellular telephone to the Jenkins pager at 6:56 a.m. and 10:40 a.m., approximately one and one-half hours before, and one and one-half hours after, the robbery.

During a search of Livingstons home conducted pursuant to a warrant, police discovered approximately 200 pieces of XIV Karats jewelry under a sofa cushion and in a closet. In Livingstons padlocked bedroom, police found approximately $7,300 in cash behind a dresser.

The Chevrolet Celebrity used as the getaway car was found abandoned on June 24, 2000. A search of the Celebrity revealed small pieces of duct tape like those worn by one or more of the robbers on his fingertips and that had been found at the XIV Karats store.

b. Defense evidence.

Adriana Velarde, Livingstons girlfriend and mother of his child, testified as follows. Livingston took May 23 and 24, 2000 off from work to take her to dental appointments. He was with her on the morning of the 24th, and then he went to the Budlong house to wash their babys clothes. Velarde had not revealed Livingstons alibi to anyone until she testified at Livingstons first trial.

Livingstons aunt, Etoria Munford, lived at the 2411 Budlong residence. Munford testified that she had seen Livingston at the Budlong residence at approximately 9:15 a.m. on May 24, 2000, the morning of the robbery. Munford had not revealed Livingstons alibi to anyone prior to Livingstons first trial. Munford never saw Livingston driving a blue Chevrolet Celebrity.

2. Procedure.

Livingston was initially tried with Wright, Davis, and Jenkins. Wright, Davis, and Jenkins were convicted of various charges related to the incident. The jury acquitted Livingston, however, of some charges and deadlocked on others. Livingston was retried on the counts upon which the jury had been unable to reach a verdict. At his second trial the jury found him guilty of three counts of false imprisonment by violence or menace (Pen. Code, § 236), seven counts of second degree robbery (§ 211), and conspiracy to commit robbery (§ 182, subd. (a)(1)). The jury also found true allegations that a principal was armed during commission of the crimes (§ 12022, subd. (a)(1)) and the offenses involved a theft of over $150,000 (§ 12022.6, subd. (a)(2)). After the jurys verdict, Livingston admitted suffering a prior "strike" conviction (§§ 667, subds. (b) — (i), 1170.12, subds. (a) — (d)) and serving a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced Livingston to 21 years in prison, imposed a restitution fine, and imposed and stayed a parole revocation fine. Livingston appeals.

All further undesignated statutory references are to the Penal Code.

DISCUSSION

1. Issues related to witness Peter Kelly.

a. Additional facts.

(i) Evidence offered at Livingstons first trial.

During Livingstons first trial, he presented evidence through Munford and Velarde suggesting that he and his friend Peter Kelly used the same nickname, "Tray-K." Kelly had driven Livingstons Impala once or twice, and often stayed at or visited the Budlong Avenue house.

Before the conclusion of the first trial, the prosecutor moved to preclude defense counsel from arguing that evidence related to Kelly demonstrated third party culpability. After discussing the matter with the parties, the trial court opined that there was insufficient evidence to show Kelly was involved in the crimes, but defense counsel could argue that Romo misidentified Livingston as the purchaser of the getaway car.

During the Peoples rebuttal case investigating detective Thomas Linehan testified that when Romo selected Livingstons photograph, Romo stated he was afraid of Livingston because Livingston was a Rolling Twenties Blood gang member. Romo, who was afraid for his life, did not wish to testify or sign forms identifying Livingston because he was afraid of gang reprisals.

(ii) Proceedings at Livingstons retrial.

Prior to Livingstons retrial, the People moved to exclude evidence of Kellys alleged third party culpability. They argued there was insufficient evidence to raise a reasonable doubt that Kelly was involved in the XIV Karats robbery. On June 5, 2002, the trial court ruled the defense could not elicit evidence related to Kelly in the absence of a further offer of proof showing some nexus or connection between Kelly and the crimes.

On June 7, 2002, during the retrial, defense counsel represented that Kelly was in jail in Orange County on an unrelated matter, and would testify that he had purchased the Celebrity from Romo and then sold it to Livingstons former co-defendant, Terrell Wright. The trial court opined that if the offer of proof was accurate, the evidence appeared relevant. Defense counsel stated he would determine what procedural mechanism was required to obtain Kellys presence at trial.

Over the next several days, the trial court and defense counsel attempted to arrange for Kelly to be transported to testify. Despite the trial courts telephone calls to the Orange County court and defense counsels securing a removal order, it became clear that Kelly would be unable to be transported to testify in an expeditious manner, in part because he was scheduled to attend the preliminary hearing in his own matter. Livingstons counsel was also unable to speak with Kellys counsel to determine whether Kelly would actually testify or would assert his right against self-incrimination. In response to the trial courts query as to when defense counsel had learned about the existence of the prospective witness, defense counsel replied, "As to something that would be relevant, I learned it last Friday in the afternoon." Livingston did not request a continuance. The trial court deemed Livingston to have rested.

(iii) New trial motion.

After the jury rendered its verdict, Livingston filed a motion for a new trial on the grounds new evidence had been discovered. In support of the motion, Livingston presented a handwritten, undated letter, purportedly from Peter Kelly, stating that Kelly was incarcerated in Orange County; he had recently contacted Munford, and learned of Livingstons trial; Kelly, not Livingston, was "the `Tray K who bought the Chevy Celebrity from a Spanish guy named Charlie"; Kelly was driving Livingstons red Impala when he met with Charlie; Charlie followed him to Livingstons Budlong address; two days later, Kelly sold the Celebrity to "a neighborhood friend named Terrell"; Kelly never saw the Celebrity again and had no involvement in the robbery; and Kelly was willing to testify to these facts. At the hearing on the motion, the parties stipulated that Kellys rap sheet showed his moniker was "Tray-K."

In a declaration, Romo averred in regard to the pretrial photographic lineup, that he had refused to circle the photograph or "sign the form" because the photo of Livingston only "looked similar" to the purchaser of the Celebrity. He did not identify Livingston in court because he did not recognize him. A private investigator had recently shown him a photograph of Kelly, whom he recognized as the purchaser of the car.

The evidentiary materials attached to the motion for a new trial are somewhat ambiguous as to which photographs were shown to Romo. Therefore, Romos declaration does not clearly establish that Romo identified a photograph of Kelly and identified him as the car buyer. However, defense counsels remarks during argument clarified this point and the parties did not dispute below that this was the intended import of Romos declaration.

In his memorandum of points and authorities, Livingston represented, inter alia, that after his retrial had concluded, a clerk from the Orange County court called to ask whether Kelly was still needed. Defense counsel was also able to locate Romo. He argued that Kellys and Romos favorable testimony would have changed the outcome of the trial, and that the failure to have Kelly transported so that he could testify deprived Livingston of a meritorious defense. Based upon this purportedly new evidence, Livingston argued he was entitled to a new trial.

The prosecution opposed the motion on the grounds, inter alia, that Livingston had failed to exercise due diligence.

The trial court denied the motion. It ruled that the evidence would not have changed the outcome of the trial. In particular, it opined that it was unpersuaded Livingstons offer of proof was "genuine and/or legitimate in regard to the true facts and circumstances of this case." It found Romo was not a credible witness and the timing of the disclosure of the new evidence made it suspect.

b. The trial court did not err by denying Livingstons motion for a new trial. Section 1181, subdivision (8), provides for the grant of a new trial "[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial." "A trial courts ruling on a motion for new trial is so completely within that courts discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion." (People v. Hayes (1999) 21 Cal.4th 1211, 1260-1261; People v. Earp (1999) 20 Cal.4th 826, 890.) When determining whether the trial court has abused its discretion, each case must be judged on its own facts. (People v. Delgado (1993) 5 Cal.4th 312, 328.)

"In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: `"1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits." " (People v. Delgado, supra, 5 Cal.4th at p. 328.) The trial court " `may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable. " (Id. at p. 329; cf. People v. Earp, supra, 20 Cal.4th at p. 890.)

We conclude the trial court acted within its discretion. First, Livingston failed to show he had exercised reasonable diligence to discover and produce the "new" evidence at trial. Both of the witnesses who purportedly were to offer new evidence were known to Livingston well before the second trial commenced. Kelly was purportedly a friend of Livingstons who often stayed at his home. Livingston must have been aware that Kelly used his car. As discussed supra, at the first trial Livingston indirectly advanced the theory that Romo had mistaken him for Kelly as the purchaser of the Celebrity. The parties discussed the import of this evidence at some length, including its relevance as evidence of third party culpability. Thus, Kellys existence and the materiality of his testimony were known to Livingston long before trial.

Neither was Romo a newly discovered witness. Romo testified at the first trial. Defense counsel had in his possession a photograph of Kelly at the first trial. Photographs of Kelly were shown to witnesses and introduced into evidence at the first trial. Livingston, therefore, could easily have shown the photograph of Kelly to Romo at that time and elicited the testimony in question.

Moreover, Livingston failed to exercise reasonable diligence to secure Kellys attendance at trial. Livingstons counsel informed the trial court on November 19, 2001, during the first trial, that he had located Kelly in the Orange County jail. Livingston therefore could have made arrangements well in advance of the retrial to have Kelly transported to Los Angeles to testify. Instead, he waited until the eleventh hour to do so, when Kellys attendance at trial became a logistical problem.

Second, as the trial court found, Livingston failed to show a different result was probable on retrial, because the "new" evidence was not credible. The jury was unlikely to credit Romos sudden identification of Kelly as the purchaser of the Celebrity. Evidence at trial, elicited from Livingstons own witnesses, suggested that when the car sale occurred Kelly was much heavier than Livingston. Velarde testified that she privately called Kelly "fat boy Peter." Munford testified that in May 2000, Kelly was heavier than Livingston. Given the significant weight difference between the two men, the jury was unlikely to believe that Romo mistook Kelly for the significantly thinner Livingston.

Moreover, the trial court found, based upon its observations of Romo during the first trial, that Romo was not a credible witness. The trial court found that Romo had a motive to be dishonest and recant his identification in light of his concerns about his own safety. Our review of the record establishes that the trial court did not abuse its discretion in this regard. (See, e.g., People v. Earp, supra, 20 Cal.4th at p. 890 [trial courts finding that newly discovered evidence was inherently untrustworthy and not worthy of belief was not an abuse of discretion].)

The trial court also found the timing of the purported discovery of Kellys testimony incredible. According to Livingstons aunt, Livingston had only allowed others to drive his Impala two or three times during the three year period preceding the XIV Karats offenses. If Kelly and Livingston were such close friends that Kelly often stayed at Livingstons house and was allowed to drive the Impala, it seems incredible that Kellys purchase of the getaway car would not have come to light sooner. As the trial court opined, "it does seem rather convenient that such testimony is something that came to the attention of counsel through his client at a point in time after the other three defendants had been convicted, and . . . there was no such suggestion when the four defendants were being tried together that Mr. Kelly intended to come in and implicate anyone. . . ."

In contrast to the weak character of the "new" evidence, the Peoples evidence was very strong. Jewelry taken in the robbery was found at Livingstons house. Calls were placed from a cellular telephone used by Livingston to Jenkins shortly before and after the crimes. Livingston was identified by Romo as the purchaser of the getaway car shortly after the crimes. Given the state of the evidence and the character of the "new" evidence, the trial court did not abuse its discretion by concluding that a different result was not probable had the proffered evidence been admitted.

Because we conclude the motion for the new trial was properly denied as discussed above, we do not reach the Peoples argument that the motion was not supported by the best evidence of which the case admitted, in that Kellys letter did not comply with the requirements of Code of Civil Procedure section 2015.5 [requiring that declarations offered in support of a matter comply with certain formalities].

c. The trial court did not err by failing to sua sponte continue the trial.

In a related vein, Livingston asserts that the trial court violated his rights to present a defense, to compulsory process, and to due process when it deemed the defense to have rested rather than sua sponte ordering a continuance. This contention lacks merit.

Livingston did not request a continuance, and therefore this claim is not properly before us. (People v. Alcala (1992) 4 Cal.4th 742, 782.) Moreover, a trial court has no duty to sua sponte impose an unrequested continuance. (Ibid .)

In any event, Livingstons claim fails on the merits. Continuances in a criminal case may be granted only upon a showing of good cause. (§ 1050, subd. (e); People v. Frye (1998) 18 Cal.4th 894, 1012.) The trial court "has broad discretion to grant or deny the request." (People v. Frye, supra, at pp. 1012-1013; People v. Jenkins (2000) 22 Cal.4th 900, 1037; People v. Howard (1992) 1 Cal.4th 1132, 1171.) "In determining whether a denial was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request. [Citations.]" (People v. Frye, supra, at p. 1013.) On appeal from a denial of a request for continuance, defendant must demonstrate a clear abuse of discretion or the trial courts decision will be affirmed. (People v. Samayoa (1997) 15 Cal.4th 795, 840.)

When a continuance is sought to secure the attendance of a witness, the defendant must establish that (1) he or she exercised due diligence to secure the witnesss attendance; (2) the witnesss expected testimony was material and not cumulative; (3) the testimony could be obtained within a reasonable time; and (4) the facts to which the witness would testify could not otherwise be proven. (People v. Jenkins, supra, 22 Cal.4th at p. 1037.) "The court considers ` "not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion." " (Ibid. )

Here, as we have explained supra, Livingston failed to establish diligence in obtaining Kellys testimony. Therefore, the trial court did not err by failing to grant a continuance.

2. Substantial evidence supported the trial courts finding that Romo was unavailable.

a. Additional facts.

Romo was unable to be located to testify at Livingstons retrial. The People sought to introduce Romos former testimony given at the preliminary hearing and the first trial, pursuant to Evidence Code sections 1290 and 1291. Former testimony is admissible under section 1291 only if the proponent of the evidence establishes that the witness is unavailable. (Evid. Code, § 1291, subd. (a).) Accordingly, the trial court conducted a hearing out of the presence of the jury at which Detective Linehan testified regarding the Peoples efforts to locate and subpoena Romo.

Linehan testified as follows. On May 29, 2002, approximately one week before trial commenced, Linehan and his partner visited Romos mothers house. Romo had previously identified the house as his residence and had previously been served there. Romos mother told the detectives that Romo did not live there, but sometimes visited. She stated that Romo was living with a friend, but she did not know the friends name or address. She promised to give Romo a message to call Linehan the next time she saw him. Later that day, Romos father called Linehan and informed him that Romo was in Las Vegas but would be returning on Thursday, May 30, 2002. Romos father stated he would have Romo call Linehan when Romo returned.

At 8:00 a.m. on May 30, 2002, the detectives returned to Romos mothers home. Romos car was present; Romo was not. Romos mother told the detectives that Romo had left with a friend. Linehan reiterated to Romos mother that it was very important she call Linehan if she saw Romo.

At 8:00 a.m. on May 31, 2002, the detectives returned to Romos mothers house and spoke to her again. She had still not seen Romo.

At 8:00 a.m. on June 4, 2002, the detectives returned to the mothers house a fourth time. She stated she had still not seen Romo. Linehan found it "very unusual that [Romo] hadnt been in contact with her, particularly since he had left off the car" he had been driving at the mothers house. Linehan discovered Romos fathers address and went to that residence. Romos father stated that he had not seen Romo, but believed Romo was living with a girlfriend in North Hollywood. Romos father did not know the girlfriends name or anything about her. Romos father stated that he would attempt to find Romo for Linehan.

On June 6, 2002, Linehan spoke to Romos probation officer, who indicated that the last address on file for Romo was the mothers address. The probation officer had only the same phone number for Romo which Linehan already possessed, and did not have a pager number. The probation officer had seen Romo on May 21, 2002, and Romos next appointment was not scheduled until June 21, 2002.

Linehan obtained Romos purported work address at Kens Stereo from the probation officer. When Linehan called the store, no one knew who Romo was or anything about him.

Linehan had checked county jail records for Romo every day since first attempting to locate him. Romo was not under arrest or in custody. Linehan had also checked the county coroners records, motor vehicle records, and a local hospital to no avail.

At the time of the hearing, Linehan had been instructed by his supervisor not to have additional contact with Romos mother because she had threatened to file a complaint for harassment.

Linehan had not had any contact with Romo between November 2001, after the first trial ended, and May 29, 2002. Linehan explained that it had been difficult to obtain Romos testimony at the first trial. Romo had been "very, very hesitant to come to court" because "he was afraid for his life."

Relying in part on this courts decision in People v. Diaz (2002) 95 Cal.App.4th 695, the trial court found the People had exercised reasonable diligence to obtain Romos testimony. It noted that Romo had been "a problematic witness throughout these proceedings both in terms of his desire to participate in the process and also his conduct and testimony during the course of the proceedings . . . ." It concluded that Romo was making efforts not to be located. The trial court also pointed out that Romo had testified at a prior trial where he was subject to full and complete cross-examination on the relevant issues.

b. Discussion.

A witness is unavailable if he or she is absent and "the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the courts process." (Evid. Code, § 240, subd. (a)(5); People v. Sanders (1995) 11 Cal.4th 475, 522; People v. Cummings (1993) 4 Cal.4th 1233, 1296.) The proponent of the statement has the burden of establishing unavailability. (People v. Cummings, supra, at p. 1296; People v. Diaz, supra, 95 Cal.App.4th at p. 706.)

There is no mechanical or bright line definition of "due diligence." (People v. Cromer (2001) 24 Cal.4th 889, 904.) Instead, what constitutes due diligence depends upon the specific facts of each case and the totality of efforts used to locate the witness. (People v. Sanders, supra, 11 Cal.4th at p. 523.) The term due diligence " `connotes persevering application, untiring efforts in good earnest, efforts of a substantial character. [Citations.]" (People v. Cromer, supra, at p. 904.) Among the factors we consider are: whether the search was timely begun; whether the proponent of the evidence reasonably believed prior to trial that the witness would appear willingly and therefore did not subpoena the witness when he or she was available; the importance of the witnesss testimony; whether leads were competently explored; and whether the witness would have been produced if reasonable diligence had been exercised. (Ibid.; People v. Sanders, supra, at p. 523.) The People need not pursue futile acts not likely to produce the witness for trial. (People v. Smith (2003) 30 Cal.4th 581, 611; People v. Hovey (1988) 44 Cal.3d 543, 562.) Under the Confrontation Clause of the federal Constitution, a witness can be considered unavailable only if the prosecution has made a good faith effort to obtain his or her presence at trial. (Barber v. Page (1968) 390 U.S. 719, 724, 725; People v. Smith, supra, at p. 609.)

The issue of whether a party exercised due diligence to locate a missing witness is a mixed question of law and fact. (People v. Cromer, supra, 24 Cal.4th at pp. 900-901.) Accordingly, when determining whether the facts found to exist by the trial court amount to due diligence, we exercise independent review. (Id. at pp. 893, 901.) We apply a deferential standard of review to the trial courts findings of historical fact. (Id. at p. 900.)

We conclude the record demonstrates the People exercised due diligence to procure Romos testimony. The Peoples efforts were undertaken in good faith, and were reasonable and substantial. The detectives attempted to serve Romo at his mothers house on four occasions. Linehan attempted to contact Romo through his relatives and at his purported workplace. Linehan checked other sources, such as the jails and a hospital, during his search. Linehans efforts were not unreasonable or merely cursory.

In support of his argument, Livingston contends (1) given Romos reluctance to testify in the first trial, the prosecution should have obtained additional contact information for him when the first trial resulted in a mistrial; (2) the prosecution made no effort to find Romo for six months between the two trials; (3) the prosecutions efforts to locate Romo were tardy and, had the detectives attempted to locate Romo sooner, they could have had the probation department order his presence; and (4) the prosecution should have taken additional steps to locate Romo, including checking unemployment, welfare, telephone, voter, social security, credit, or utility records and conducting surveillance of Romos mothers residence.

These arguments are unavailing. It is settled that the fact "additional efforts might have been made or other lines of inquiry pursued does not affect [a finding of due diligence]. [Citation.] It is enough that the People used reasonable efforts to locate the witness." (People v. Cummings, supra, 4 Cal.4th at p. 1298; People v. Diaz, supra, 95 Cal.App.4th at p. 706; People v. Lopez (1998) 64 Cal.App.4th 1122, 1128; People v. Guiterrez (1991) 232 Cal.App.3d 1624, 1641, disapproved on other grounds in People v. Cromer, supra, 24 Cal.4th at p. 901, fn. 3 ["Although appellant suggests the prosecution might have pursued other lines of inquiry (such as jobs, schools or voter registration records), the prosecution need not exhaust every potential avenue of investigation to satisfy its obligation to use due diligence to secure the witness." [Fn. omitted.]]; People v. Wise (1994) 25 Cal.App.4th 339, 344.) As we explained in Diaz, we " `will not reverse a trial courts determination [under § 240] simply because the defendant can conceive of some further step or avenue left unexplored by the prosecution. Where the record reveals . . . that sustained and substantial good faith efforts were undertaken, the defendants ability to suggest additional steps (usually, as here, with the benefit of hindsight) does not automatically render the prosecutions efforts "unreasonable." [Citations.] The law requires only reasonable efforts, not prescient perfection. [Citations.]" (People v. Diaz, supra, at p. 706.) Here, the record does not suggest that Linehan had any reason to believe the additional steps suggested by Livingston would have been fruitful, given Romos noncooperation.

We disagree that the prosecutions efforts were untimely. The search for Romo began approximately a week before trial. Courts have held that the fact a search began shortly before or during trial does not necessarily preclude a finding of reasonable diligence. (People v. Lepe (1997) 57 Cal.App.4th 977, 986-987 & fn. 1, disapproved on other grounds in People v. Cromer, supra, 24 Cal.4th at p. 901, fn. 3;People v. Saucedo (1995) 33 Cal.App.4th 1230, 1236-1239, and cases cited therein, disapproved on other grounds in People v. Cromer, supra, 24 Cal.4th at p. 901, fn. 3, [due diligence established, although prosecutor issued subpoena and began search for witness eight days before trial].)

Likewise, Livingstons argument that the People should have taken steps to keep abreast of Romos whereabouts during the intervening period between the two trials fails to persuade us. As we explained in Diaz, "A court cannot `properly impose upon the People an obligation to keep "periodic tabs" on every material witness in a criminal case, for the administrative burdens of doing so would be prohibitive. Moreover, it is unclear what effective and reasonable controls the People could impose upon a witness who plans to leave the state or simply "disappear," long before a trial date is set. [Citation.]" (People v. Diaz, supra, 95 Cal.App.4th at p. 706.) Here the trial courts conclusion that Romo was trying to avoid service was reasonable. Romo had told Linehan that he was afraid for his life if he testified. He stated that he absolutely did not want to be involved. As a detective testified in Diaz, giving a reluctant witness advance warning can sometimes be counterproductive, ensuring that the witness will leave the area to avoid testifying. (Id. at p. 707.) Here Linehan adopted the same strategy. He explained that, in light of Romos concerns about testifying at the prior trial, rather than calling or subpoenaing him in advance, "[i]t was better to just show up and, if he was there, to deal with it." We discern no error.

DISPOSITION

The judgment is affirmed.

We concur: KLEIN, P.J., KITCHING, J.


Summaries of

People v. Livingston

Court of Appeals of California, Second Appellate District, Division Three.
Nov 25, 2003
No. B162369 (Cal. Ct. App. Nov. 25, 2003)
Case details for

People v. Livingston

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TRAYVEON MASSIE LIVINGSTON…

Court:Court of Appeals of California, Second Appellate District, Division Three.

Date published: Nov 25, 2003

Citations

No. B162369 (Cal. Ct. App. Nov. 25, 2003)