Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF063119 Richard A. Erwood, Judge.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Defendant and appellant, Ruben Alberto Ramirez, Jr., appeals from his carjacking and vehicle theft convictions. Ramirez argues the trial court erred when it found that the victim and key witness was unavailable and allowed the prosecution to read his preliminary hearing testimony at trial. As discussed below, we agree with the trial court that the prosecution exercised reasonable diligence to secure the witness’s presence at trial, and so affirm the conviction.
Facts and Procedure
On September 19, 2008, around 4:00 p.m., the victim, Ruben Zavala, was putting gasoline into his gray Ford Mustang. Ramirez came up to Zavala and said something to him that Zavala did not understand. When Zavala finished pumping the gas and started to open his car door, Ramirez came closer. Zavala tried to close his car door quickly, but Ramirez prevented him from doing so. When Zavala tried to push Ramirez away, Ramirez drew a gun and tried to get in the driver’s seat. About the same time, Ramirez’s accomplice, John Guillen, socked Zavala in the eye and tried to push him into the car. As Zavala resisted, Guillen began to beat him and tried to take his wallet. Guillen continued to beat Zavala as Zavala fell to the ground. Zavala tried to throw his car keys to a passerby, but the passerby did not pick them up. Ramirez eventually picked them up, and the two men drove off in Zavala’s Mustang, with Ramirez in the driver’s seat.
Police apprehended both men after chasing them in the Mustang and later tracking them on foot after they abandoned the Mustang at a dead end and ran in different directions. On March 5, 2009, Zavala testified at Ramirez’s preliminary hearing. Defense counsel cross-examined Zavala.
The People filed the second amended information on May 12, 2010. The People charged Ramirez with carjacking (Pen. Code, § 215, subd. (a)) and unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)). The People also alleged that Ramirez had personally used a firearm during the carjacking (Pen. Code, § 12022.53) and that he had two strike priors (Pen. Code, § 667, subds. (c), (e)(1)) and four prison term priors (Pen. Code, § 667.5, subd. (b)). Ramirez pled not guilty to the charges and denied the special allegations.
On February 18, 2010, the People announced they were ready for trial. However, Ramirez asked for a Marsden hearing, after which the trial court relieved defense counsel. The last day for trial was ultimately reset for May 12, 2010.
People v. Marsden (1970) 2 Cal.3d 118.
On the morning of May 12, 2010, the People moved for a continuance because Zavala was not available to testify that day. Zavala had not arrived from Mexico the previous day as the People had arranged. The trial setting court denied the continuance because, although the People had established due diligence, a continuance would not be appropriate because the People had no way of knowing that Zavala would be available even if the court granted a continuance. The court sent the case out to a trial department for a jury trial that afternoon.
That afternoon, the trial court heard the People’s motion to admit Zavala’s preliminary hearing testimony. The court heard the following testimony from the district attorney’s investigator, who had been given the task of locating, contacting, and making travel arrangements for Zavala.
The district attorney’s investigator had initially located and contacted Zavala in northern California to arrange for him to testify at trial in September 2009. However, the trial was continued to February 2010. The investigator again contacted Zavala in February 2010, at which time Zavala was residing in Mexico. Zavala agreed to come to court to testify at trial. All travel arrangements were made, which involved Zavala flying to the border crossing, where he would be met by a United States Customs Service investigator. However, the February trial date was continued to May 10, 2010. The investigator conveyed this information to Zavala and told him he would be in touch. Zavala agreed to come to court for trial.
The investigator began attempts to contact Zavala again on April 27, 2010, by dialing the international cell phone number that he had previously used to contact Zavala. Zavala did not answer the first 40 telephone calls or return the first 10 voice mail messages. The investigator contacted Zavala’s family members living in the local area and they reported their only contact with Zavala was through the same international cell phone number. They also told the investigator that the telephone was pay-as-you-go, and it appeared Zavala was not returning the telephone calls because he was out of minutes. The investigator continued trying this number, along with the telephone number of the relative with whom he was thought to be staying, and was eventually able to speak with Zavala. He did not record the date of the first contact in his notes. On May 7, 2010, the investigator spoke with Zavala through a translator and provided him with his itinerary for May 11. Zavala was to fly from the City of Morelia, near his home, to Mexico City, change to an airplane flying to Tijuana, landing about 10:55 a.m., and then take a taxi to meet an investigator at the United States Customs Service. The investigator was to transport Zavala to court on May 12. Zavala stated he was afraid to fly, but agreed to come. The prosecution arranged to put minutes on Zavala’s telephone and told Zavala they would cover all of his travel expenses. Zavala stated that he had enough funds to get to the airport in Morelia and to take a taxi from the airport in Tijuana to the border crossing in San Ysidro, and the prosecution told him he would be reimbursed.
Zavala did not arrive at the border crossing as arranged. The investigator determined that Zavala had never boarded the airplane in Morelia. The investigator contacted Zavala’s mother, who told him that “he was currently working, and that he did not board the plane because they were in fear for him traveling inside of Mexico.”
The trial court ruled that the People had exercised due diligence in attempting to obtain Zavala’s live testimony because of the extensive contacts the prosecution had had with Zavala and because “this individual has been cooperative throughout the history of this case up until what amounts to the last minute.” The court allowed Zavala’s preliminary hearing testimony to be read to the jury.
The jury ultimately found Ramirez guilty of carjacking and vehicle theft, but found the gun allegation not true. Ramirez admitted the two strike priors and two of the prison term priors. The trial court granted the People’s motion to dismiss the other two prison term priors. On August 2, 2010, the trial court sentenced Ramirez to 27 years to life as follows: 25 years to life for the carjacking; 25 years to life for the vehicle theft, stayed pursuant to Penal Code section 654; and a year for each of the two prison term priors. This appeal followed.
Discussion
Ramirez argues the trial court erred when it found that the People exercised due diligence in securing Zavala’s presence for trial. Specifically, Ramirez argued it was unreasonable for the prosecution to expect Zavala to follow through with the arranged travel plans given that he was afraid of air travel.
“A criminal defendant has the right under both the federal and state Constitutions to confront the witnesses against him. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) This right, however, is not absolute. The high court recently reaffirmed the long-standing exception that ‘[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.’ (Crawford v. Washington (2004) 541 U.S. 36, 59 [158 L.Ed.2d 177, 124 S.Ct. 1354]; see People v. Cromer (2001) 24 Cal.4th 889, 892....) Evidence Code section 1291 codifies this traditional exception. [Citation.] When the requirements of Evidence Code section 1291 are met, ‘admitting former testimony in evidence does not violate a defendant’s right of confrontation under the federal Constitution. [Citations.]’ [Citation.]” (People v. Wilson (2005) 36 Cal.4th 309, 340, quoting People v. Mayfield (1997) 14 Cal.4th 668, 742.)
“Evidence Code section 1291, subdivision (a)(2), provides that former testimony is not rendered inadmissible as hearsay if the declarant is ‘unavailable as a witness, ’ and ‘[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.’ In turn, Evidence Code section 240, subdivision (a)(5), states a declarant is ‘unavailable as a witness’ if the declarant is ‘[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.’” (People v. Wilson, supra, 36 Cal.4th at p. 341.) Because Zavala testified at Ramirez’s preliminary hearing, and was subject to cross-examination, the only issue in this appeal is whether the prosecution used due diligence in its effort to obtain Zavala’s appearance at trial.
“The term ‘reasonable diligence’ or ‘due diligence’ under Evidence Code section 240, subdivision (a)(5) ‘“connotes persevering application, untiring efforts in good earnest, efforts of a substantial character. [Citations.]”’ [Citation.]... We independently review a trial court’s due diligence determination. [Citation.]” (People v. Wilson, supra, 36 Cal.4th at p. 341, quoting People v. Cromer, supra, 24 Cal.4th at p. 889.)
Here, the prosecution made substantial efforts to obtain Zavala’s testimony at trial. It made arrangements for Zavala to testify in September 2009, and later in February 2010, both of which trial dates were continued. The prosecution again made arrangements to bring Zavala to the trial set for May 12, 2010, and again Zavala agreed to go. There is no evidence at all in the record that Zavala was ever hesitant to testify at trial. In addition, although Zavala told the investigator, through a translator, on May 7, 2010, that he was afraid to fly, he never indicated that this would prevent him from traveling. Thus, based on each of the prosecution’s extensive contacts with Zavala, they fully and reasonably expected him to arrive to testify at trial.
Ramirez argues the prosecution should have sent someone to Zavala’s home in Mexico to personally escort Zavala to trial. However, as stated above, even though Zavala said he was afraid to fly, he never at any time said that this would prevent him from making the trip the prosecution had planned for him and paid for. As the People point out, reasonable diligence is all that is required; the fact that the People could have taken these additional steps to ensure Zavala’s presence does not make the efforts they did make unreasonable. (People v. Diaz (2002) 95 Cal.App.4th 695, 706.) Based on the number of contacts the prosecution had with Zavala over the course of the case, and the plain reasonableness of its belief that he would in fact appear, we simply cannot say that the prosecution acted without due diligence in attempting to bring Zavala to testify at trial.
We think little of Ramirez’s argument that the People should have tried to arrange for Zavala to give his testimony by teleconference instead of in person. Again, there was nothing inherently unreasonable about expecting Zavala to attend the trial after he had twice previously agreed to do so, one of which times had also required air travel. Therefore, there would have been no reason to employ the extraordinary measures that Ramirez suggests.
To conclude, the trial court did not violate Ramirez’s constitutional rights to confront his accuser. This is because Ramirez had previously had the opportunity to cross-examine Zavala at the preliminary hearing, and because Zavala was absent from the trial despite the prosecution’s due diligence efforts to present his live testimony.
Disposition
The conviction is affirmed.
We concur: RICHLI, J., KING, J.