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People v. Oliver

Court of Appeals of California, Second District, Division Five.
Nov 6, 2003
No. B164301 (Cal. Ct. App. Nov. 6, 2003)

Opinion

B164301.

11-6-2003

THE PEOPLE, Plaintiff and Respondent, v. THEODARIS KUAHSHEAN OLIVER, Defendant and Appellant.

Edward J. Haggerty, 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, Linda C. Johnson, Supervising Deputy Attorney General, Beverly K. Falk, Deputy Attorney General, for Plaintiff and Respondent.


Defendant, Theodaris K. Oliver, appeals from his convictions for: attempted murder; attempted second degree robbery; and firearm possession by a convicted felon. (Pen. Code[], §§ 187, 211, 664, 12021, subd. (a.).) The jury found in connection with the attempted murder and robbery counts defendant used and discharged a firearm causing great bodily injury. (§ 12022.53, subds. (b), (c), (d).) Defendant contends the trial court: erroneously found a witness to be unavailable; violated Evidence Code section 1350, subdivision (b) because inadequate notice of the intent to use the preliminary hearing transcript was given to defense counsel; failed to sua sponte instruct the jury to view defendants oral admission with caution; and the firearm possession by a convicted felon sentence must be stayed pursuant to section 654, subdivision (a). We agree that the firearm possession by a convicted felony sentence must be stayed but otherwise affirm the judgment.

Unless otherwise charged, all future statutory references are to the Penal Code.

First, defendant contends the trial court should not have found a witness, Kenny Williams, who was fully cross-examined at the preliminary hearing, was unavailable to testify for the prosecution before the jury. At trial, Mr. Williams was sworn as a witness and twice explicitly stated he would not testify. Mr. Williams testified that the prosecution had made promises to him which were not kept. The trial court warned Mr. Williams he could be found in contempt and incarcerated if he refused to answer questions. The trial court found Mr. William was unavailable to testify. Mr. Williams then was directed to wait in the hallway.

Defense counsel raised the issue of whether: Mr. Williams should be on the stand in front of the jury; Mr. Williams should be required to refuse to answer specific questions; and then Mr. Williamss preliminary hearing testimony would be read to the jury. When the prosecutor and the court raised the question as to whether such a cumbersome procedure would be prejudicial to defendant, there was a brief interruption in the proceedings. Defense counsel then said, "I think the court can declare his unavailability to proceed."

This entire issue has been waived. (Evid. Code, § 353, subd. (a); People v. Alvarez (1996) 14 Cal.4th 155, 186.) Insofar as the issue was raised in the new trial motion, it was untimely particular given defense counsels prior agreement that Mr. Williams was unavailable. There are well established and consistently applied California Supreme Court holdings requiring specific and timely objections in connection with a whole host of constitutional and statutory issues; they are controlling. (E.g. People v. Frye (1998) 18 Cal.4th 894, 969; People v. Dennis (1998) 17 Cal.4th 468, 521; People v. Alvarez, supra, 14 Cal.4th at p. 186; People v. Turner (1994) 8 Cal.4th 137, 177.)

In any event, no error occurred. We independently examine the trial courts ruling utilizing the historical facts before it. (People v. Cromer (2001) 24 Cal.4th 889, 896-903; People v. Louis (1986) 42 Cal.3d 969, 982-983.) The factors for determining unavailability listed in Evidence Code section 240 subdivision (a) are not exclusive. (People v. Smith (2003) 30 Cal.4th 581, 624; People v. Rojas (1975) 15 Cal.3d 540, 552.) In this case, the twice made under oath statement by Mr. Williams that he would not testify plus his claim that the prosecution had violated its promises to him demonstrates he was an unavailable witness for purposes of allowing his preliminary examination testimony to be read to the jury. (People v. Alcala (1992) 4 Cal.4th 742, 778-780; People v. Rojas, supra, 15 Cal.3d at p. 551.) Insofar as defendant suggests that further steps should have been taken to compel Mr. Williams to testify, that contention was not raised in the trial court and has been waived. (Evid. Code, § 353, subd. (a); People v. Alvarez, supra, 14 Cal.4th at p. 186.)

Second, defendant argues that the prosecution violated Evidence Code section 1350, subdivision (b)[] because insufficient warning was given concerning the use of Mr. Williamss preliminary examination testimony. Defendant argues that he was entitled to 10 days notice of the use of the preliminary examination transcript as required by Evidence Code section 1350, subdivision (b). Initially, this entire contention has been waived because it was not raised in the trial court. (Evid. Code, § 353, subd. (a); People v. Alvarez, supra, 14 Cal.4th at p. 186.) But we agree with the Attorney General that Evidence Code section 1350 has nothing to do with this case. Mr. Williamss preliminary examination testimony was received as prior recorded testimony by an unavailable witness pursuant to Evidence Code section 1291. In any event, Evidence Code section 1350, subdivision (b) allows the use of hearsay declarations in serious felony prosecutions without giving 10 days notice when good cause is present. Typically, issues of admissibility of evidence are reviewed for abuse of discretion. (People v. Alvarez, supra, 14 Cal.4th at p. 203; see Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1078.) In this case, the trial court reasonably could have concluded that the first time the prosecution discovered that it might be necessary use the preliminary hearing transcript was when Mr. Williams refused to testify. Under these circumstances, implicit in any ruling was a finding good cause existed within the meaning of Evidence Code section 1350, subdivision (b).

Evidence Code section 1350 states: "(a) In a criminal proceeding charging a serious felony, evidence of a statement made by a declarant is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness, and all of the following are true: [¶] (1) There is clear and convincing evidence that the declarants unavailability was knowingly caused by, aided by, or solicited by the party against whom the statement is offered for the purpose of preventing the arrest or prosecution of the party and is the result of the death by homicide or the kidnapping of the declarant.[¶] (2) There is no evidence that the unavailability of the declarant was caused by, aided by, solicited by, or procured on behalf of, the party who is offering the statement. [¶] (3) The statement has been memorialized in a tape recording made by a law enforcement official, or in a written statement prepared by a law enforcement official and signed by the declarant and notarized in the presence of the law enforcement official, prior to the death or kidnapping of the declarant. [¶] (4) The statement was made under circumstances which indicate its trustworthiness and was not the result of promise, inducement, threat, or coercion. [¶] (5) The statement is relevant to the issues to be tried. [¶] (6) The statement is corroborated by other evidence which tends to connect the party against whom the statement is offered with the commission of the serious felony with which the party is charged. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] (b) If the prosecution intends to offer a statement pursuant to this section, the prosecution shall serve a written notice upon the defendant at least 10 days prior to the hearing or trial at which the prosecution intends to offer the statement, unless the prosecution shows good cause for the failure to provide that notice. In the event that good cause is shown, the defendant shall be entitled to a reasonable continuance of the hearing or trial. [¶] (c) If the statement is offered during trial, the courts determination shall be made out of the presence of the jury. If the defendant elects to testify at the hearing on a motion brought pursuant to this section, the court shall exclude from the examination every person except the clerk, the court reporter, the bailiff, the prosecutor, the investigating officer, the defendant and his or her counsel, an investigator for the defendant, and the officer having custody of the defendant. Notwithstanding any other provision of law, the defendants testimony at the hearing shall not be admissible in any other proceeding except the hearing brought on the motion pursuant to this section. If a transcript is made of the defendants testimony, it shall be sealed and transmitted to the clerk of the court in which the action is pending. [¶] (d) As used in this section, `serious felony means any of the felonies listed in subdivision (c) of Section 1192.7 of the Penal Code or any violation of Section 11351, 11352, 11378, or 11379 of the Health and Safety Code."

Third, we agree with defendant that the trial court erroneously failed to comply with its sua sponte obligation to instruct the jury that defendants oral admissions should be viewed with caution as required by CALJIC No. 2.71. Nonetheless, any error was harmless. Defendant has failed to demonstrate that there is a reasonable probability of a different result had the jury been so instructed. (Cal. Const., art. I, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)

Fourth, defendant argues that the sentence as to count 3 for a violation of section 12021, subdivision (a) should be stayed pursuant to section 654, subdivision (a). We review this contention for substantial evidence of multiple criminal intentions. (People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Palmore (2000) 79 Cal.App.4th 1290, 1297.) We agree with defendant that there is no substantial evidence defendant possessed the firearm at any time other than during the commission of the attempted murder and robbery. Therefore, the sentence under count 3 must be stayed pursuant to section 654, subdivision (a). (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311-1312; People v. Kane (1985) 165 Cal.App.3d 480, 488; see 3 Witkin and Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, § 175, p. 246.)

The judgment is modified to stay the sentence as to count 3 pursuant to Penal Code section 654, subdivision (a). The judgment is affirmed in all other respects. The clerk of superior court is directed to prepare an amended abstract of judgment and forward it to the Director of Corrections.

We concur: GRIGNON, J. and ARMSTRONG, J.


Summaries of

People v. Oliver

Court of Appeals of California, Second District, Division Five.
Nov 6, 2003
No. B164301 (Cal. Ct. App. Nov. 6, 2003)
Case details for

People v. Oliver

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. THEODARIS KUAHSHEAN OLIVER…

Court:Court of Appeals of California, Second District, Division Five.

Date published: Nov 6, 2003

Citations

No. B164301 (Cal. Ct. App. Nov. 6, 2003)