Opinion
F071772
07-26-2018
THE PEOPLE, Plaintiff and Respondent, v. RAMON PEREZ RANGEL, Defendant and Appellant.
Michael L. Pinkerton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Paul A. Bernardino, and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F15900846)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Houry A. Sanderson, Judge. Michael L. Pinkerton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Paul A. Bernardino, and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Franson, J. and Peña, J.
-ooOoo-
Ramon Perez Rangel (defendant) stands convicted, following a jury trial, of inflicting corporal injury resulting in a traumatic condition on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a); count 1), second degree robbery (id., § 211; count 2), and dissuading a witness from testifying (id., § 136.1, subd. (a)(1); count 3). He admitted having a prior strike conviction (id., §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and having served three prior prison terms (id., § 667.5, subd. (b)). He was sentenced to a total term of 12 years in prison, and ordered to pay various fees, fines, and assessments. On appeal, we hold: (1) The complaining witness's preliminary hearing testimony was properly admitted, but (2) sentence on count 1 must be stayed. We modify the judgment accordingly and affirm as modified.
FACTS
As of October 14, 2014, defendant and C.M. were in a dating relationship. That day, she walked down to the car wash to meet him, so they could discuss reconciling their relationship. As they were walking back to a friend's apartment, defendant asked what was wrong with her arm. She had bitten herself the night before in keeping with her tendency to self-inflict wounds when upset, and when she told defendant, he gave her arm a kiss. Eventually, they got into an argument, because defendant thought C.M. was texting other men on her phone. She handed him her phone, but he would not give it to her when she wanted it back. At no time was there angry contact between them.
C.M.'s preliminary hearing testimony was read to the jury, as discussed in more detail, post.
Unspecified references to dates in the statement of facts are to the year 2014.
At approximately 1:20 p.m. on October 14, Fresno Police Officer Camacho responded to an apartment complex in the area of Olive and Cedar Avenues, in Fresno, following a domestic violence call. There, he contacted C.M. She was cooperative, but hesitant to answer questions. She appeared to be very scared. She often looked down at the ground rather than making eye contact with Camacho, and she cried at times. Camacho noticed a bite mark on her left bicep area. It was bleeding slightly. Camacho summoned an ambulance. While ambulance personnel were treating the wound, C.M. received a call on her cell phone. After she hung up, she told Camacho she had been speaking with defendant. She was quiet and seemed scared.
After C.M. was treated, Camacho spoke with her for approximately 20 minutes. She related that she and defendant were in an intimate dating relationship and had lived together for over a year, and that they had been living at the home of defendant's mother. They had broken up about three days earlier, however.
C.M. told Camacho that she met with defendant on October 14 at the apartment complex where Camacho contacted her. Rangel wanted to reconcile. They got into an argument, as he accused her of being with other men. He was jealous and wanted to see text messages on her cell phone. When she did not willingly give him her phone, he punched her on the left side of her head, then bit her arm. That caused her to release her grip on the phone. Defendant then rode off on his bicycle with it.
C.M. had hair in the area where she said defendant struck her, and Camacho was unable to see any injury there. There was a visible injury to her arm, however, photographs of which were shown to the jury and are included in the record on appeal.
During the interview, C.M.'s demeanor vacillated between scared, intimidated, and uncooperative, to cooperative. Initially, she said she did not want to press charges, but just wanted her phone back.
Fresno Police Officer Gomez also responded to the domestic violence call. The dispatch contained a description of the suspect, including that he was riding a bicycle, and listed him by name.
As Gomez responded, he saw defendant, who matched the description, riding a bicycle a few blocks from the location of the occurrence. Gomez contacted him, and they talked for a few minutes. During this time, defendant pulled a cell phone out of his pocket and made a call. He said something to the effect of, "they got me, and don't tell the police, or tell the police nothing happened." Gomez searched defendant and found a second cell phone in his possession.
Gomez transported defendant to the apartment complex where Camacho was interviewing C.M. Camacho conducted an in-field showup, and asked if defendant was Rangel. C.M. said it was not him, but did not look Camacho in the eye. During the in-field showup, defendant was yelling C.M.'s name. She looked very scared. About five minutes later, she said she felt bad that she did not identify him, but it actually was him. She made it clear he was the one who had caused her injury.
Camacho advised defendant of his rights and then asked what had happened. Defendant related that he and C.M. were in a cohabiting relationship, but had separated three days earlier. They got into an argument over their relationship. Defendant wanted C.M.'s cell phone so he could see if other men had been texting her. Defendant did not say he took C.M.'s phone, but he identified one of the two cell phones Gomez had seized as belonging to C.M. Defendant denied seeing a bite mark on C.M.'s arm or biting or hitting her.
After defendant was taken away to be booked, Camacho attempted to get a DNA sample from C.M. She pulled her arm away and refused to cooperate. A short time later, she permitted the sample to be obtained. She said she refused initially, because she knew what it was for, and she was afraid of defendant. That was also why she did not want to identify him initially, in addition to which, she loved him. She accepted Camacho's offer of a criminal protective order.
On the afternoon of October 14, defendant initiated a telephone call from jail to his mother. During the call, he told someone named Angie to make sure "she" did not come to court. He said he was just mad and was under the influence, but he loved her. He asked Angie to talk to C.M. and let her know he was sorry and he loved her. He also spoke with his grandmother and asked her to tell C.M. not to go to court, and to come back home.
On November 10, defendant initiated another call from jail, apparently to his mother's house. During the call, defendant told C.M. that he had received her letter and card. He apologized for "doing that" to her. He explained that the devil had been drugging him up, and that things would be different. He said he wanted to marry her, and that he loved her. He said he was sorry for what he did to her and that it would never happen again.
The parties stipulated C.M. visited defendant in jail on seven occasions between February 17, 2015, and April 14, 2015. They further stipulated defendant had a prior felony conviction for domestic violence against a different victim.
DISCUSSION
I
ADMISSION OF PRELIMINARY HEARING TESTIMONY AND RELATED STATEMENTS
Defendant contends the trial court erred in finding the prosecution exercised reasonable diligence in attempting to locate C.M. and obtain her presence at trial. As a result, he says, C.M. was not legally unavailable as a witness; therefore, her preliminary hearing testimony should not have been admitted; and, without the admission of that testimony, her statements to Camacho could not have been admitted. Defendant says the error violated his federal and state constitutional confrontation rights and cannot be found harmless. We conclude the prosecution demonstrated reasonable diligence.
"The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution's witnesses. [Citations.] That right is not absolute, however. An exception exists when a witness is unavailable and, at a previous court proceeding against the same defendant, has given testimony that was subject to cross-examination." (People v. Cromer (2001) 24 Cal.4th 889, 892 (Cromer); see Crawford v. Washington (2004) 541 U.S. 36, 68 (Crawford); Barber v. Page (1968) 390 U.S. 719, 722.)
Evidence Code section 1291, subdivision (a) provides in part: "Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶] . . . [¶] (2) The 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." A declarant is unavailable as a witness if, inter alia, he or she 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." (§ 240, subd. (a)(5).) A finding of witness unavailability under this statute satisfies the unavailability requirement of Crawford. (People v. Byron (2009) 170 Cal.App.4th 657, 671.)
Further statutory references are to the Evidence Code unless otherwise stated.
For purposes of this provision, "reasonable diligence" is often referred to as "due diligence." (Cromer, supra, 24 Cal.4th at p. 892.)
Once former testimony has been admitted, it is subject to disputation by evidence of prior inconsistent statements, albeit not in the identical manner as trial testimony. (Compare §§ 770 & 1235 with §§ 1202 & 1294; see, e.g., People v. Chism (2014) 58 Cal.4th 1266, 1294; People v. Blacksher (2011) 52 Cal.4th 769, 803-805, 806 & fn. 22, 808; People v. Curl (2009) 46 Cal.4th 339, 361; People v. Martinez (2003) 113 Cal.App.4th 400, 407-409.)
Defendant does not claim that, assuming C.M.'s preliminary hearing testimony was properly read to the jury, her statements to Camacho nevertheless were wrongly admitted. Rather, he accurately points out that the introduction of C.M.'s preliminary hearing testimony laid the foundation for the bulk of Camacho's trial testimony concerning the statements C.M. made to him at the time of his interview of her.
The proponent of former testimony — here, the prosecution — has the burden of proving unavailability of the witness by a preponderance of the evidence. (People v. Williams (1979) 93 Cal.App.3d 40, 51, disapproved on another ground in Coito v. Superior Court (2012) 54 Cal.4th 480, 499; accord, People v. Christensen (2014) 229 Cal.App.4th 781, 790.) "[T]o establish unavailability, the prosecution must show that its efforts to locate and produce a witness for trial were reasonable under the circumstances presented. [Citations.] (People v. Herrera (2010) 49 Cal.4th 613, 623.) "The obligation to use reasonable means to procure the presence of the witness has two aspects. The more obvious is the duty to act with due diligence in attempting to make an absent witness present. Less obvious, perhaps, but no less important 'is the duty to use reasonable means to prevent a present witness from becoming absent.' [Citation.]" (People v. Louis (1986) 42 Cal.3d 969, 991.) What constitutes due diligence depends on the facts of the individual case, and the totality of the proponent's efforts to achieve presence of the witness must be considered. (People v. Sanders (1995) 11 Cal.4th 475, 523.)
The record before us shows C.M. testified at the preliminary hearing on December 2, 2014. The case subsequently was dismissed and refiled, and defendant waived his right to a preliminary hearing after the refiling. Jury trial was tentatively set for April 9, 2015. Trial ultimately began on April 27, 2015.
On April 27, 2015, a body attachment issued for C.M. at the prosecutor's request. The prosecutor submitted proof of service on C.M., on April 22, 2015, of a subpoena to appear on April 27, 2015.
The next day, the prosecutor informed the court that she had been in contact with the investigative unit assigned to locate C.M., and there was an issue with the body attachment. The information conveyed to the prosecutor was that C.M. could not be arrested without a "hard copy" of the body attachment. The court confirmed it made the necessary orders, which were entered in the system.
On April 30, 2015, a due diligence hearing was held. The court took judicial notice that the body attachment was ordered on Monday, April 27, 2015. The order actually made it into the system late Tuesday, April 28, 2015.
In the course of finding C.M. unavailable, the court noted the problem was not the fault of the People. When the court clerk submitted the body attachment into the system, it did not transfer to the sheriff's department. The problem was discovered within hours, at which time the clerk used an older system that created paperwork the People physically could take to the jail.
Stacy Cordero, a senior investigator with the district attorney's office, testified that she became involved in the investigation the previous day, April 29, 2015. She went to an address on Oslin and contacted a woman who identified herself as D., C.M.'s mother. D. stated that C.M. had not had contact with her since the preceding Sunday, when C.M. had supervised visitation with her children, of whom D. had custody. D. said C.M. did not reside with her at that address, but that she believed C.M. resided at the address of defendant's family, on Tyler. D. said C.M. still loved defendant. She related that on Sunday, C.M. told D. that she had been served with a subpoena, and D. told her that she needed to go to court. Cordero gave D. her business card and asked her to call if she had contact with C.M. D. assured her that she would do so. As of the time of the hearing, Cordero had not heard from D.
Cordero did not verify whether the visits were through CPS (presumably Child Protective Services) or some other means or agency. Cordero made no attempt to find a social worker involved in the case.
Cordero then went to the Tyler address, where she contacted various family members. All said C.M. was not there. Cordero was not allowed entrance into the house to look for her.
Cordero returned to her office. The morning of the hearing, she checked to see whether C.M. had been arrested or in custody recently under any other names, or whether she had visited defendant. Cordero also called all local hospitals to verify C.M. had not been admitted. At 7:00 that morning, Cordero contacted Investigator Cantu and asked that Cantu attempt to serve the body attachment, secure (arrest) C.M., and bring her to court.
Cordero did not check the police report, in which an address on Hedges was mentioned. She did not investigate that address. The report also contained the name and phone number, and an address on Holmes, for the reporting party. Cordero did not attempt to contact that person or investigate that address. She did not conduct any Internet searches for C.M. She did not check any telephone numbers, because she had been told C.M. did not have a telephone.
During a section 402 hearing held on another matter prior to the due diligence hearing, Camacho testified that this was the address at which Camacho interviewed C.M. C.M. told him that she was staying there temporarily. He was able to contact her there for three days following his first contact with her.
Janette Cantu, a senior investigator with the district attorney's office, testified that on April 22, 2015, she served C.M. at the Tyler address. She asked C.M. for a phone number, but C.M. said she did not have one or even a message number. Cantu gave C.M. a business card.
On Monday, April 27, 2015, Cantu was informed C.M. had not appeared in court. Around noon the next day, she was instructed to attempt to arrest C.M. pursuant to a body attachment. She was unable to do so that day, because she was out of county on a different warrant. She made sure another investigator — Jeff Trashell — would handle C.M.'s matter. He was unable to do so, however, because there was an issue with the warrant being in the system. An investigator would not go out to serve a body attachment if a warrant was not in the system and had not been verified.
On the morning of the due diligence hearing, Cantu went to the Tyler address, where she had previously served the subpoena on C.M., and was informed C.M. was not there. Cantu also went to D.'s address, and D. said C.M. was not there. At some point, Cantu read the police report and saw mention of the address on Hedges. She believed she went to that location and asked for C.M., only to be informed C.M. did not live there. On the morning of the due diligence hearing, Cantu called the telephone number D. said should be called, but nobody answered and there was no means by which Cantu could leave a message. Cantu also tried the number contained in the police report for the reporting party, but it had been disconnected.
"We review the trial court's resolution of disputed factual issues under the deferential substantial evidence standard [citation], and independently review whether the facts demonstrate prosecutorial good faith and due diligence [citation]." (People v. Herrera, supra, 49 Cal.4th at p. 623; see Cromer, supra, 24 Cal.4th at pp. 902-903.) "[T]he term 'due diligence' is 'incapable of a mechanical definition,' but it 'connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.' [Citations.] Relevant considerations include ' "whether the search was timely begun" ' [citation], the importance of the witness's testimony [citation], and whether leads were competently explored [citation]." (Cromer, supra, at p. 904.)
We agree with defendant that C.M. was a critical witness with respect to the prosecution's case, and that she vacillated between being cooperative and being uncooperative. Nevertheless, she appeared for the preliminary hearing and was locatable, so as to be served with a subpoena, less than a week before trial was scheduled to start. (Cf. People v. Avila (2005) 131 Cal.App.4th 163, 169.) There was no evidence to suggest she would not appear at trial, if only to testify, as she did at the preliminary hearing, that defendant did not abuse her. (See People v. Wise (1994) 25 Cal.App.4th 339, 344.) When C.M. did not appear, the prosecution took, in our view, reasonable steps to locate her. (See People v. Lopez (1998) 64 Cal.App.4th 1122, 1128; People v. Wise, supra, 25 Cal.App.4th at p. 344.) That the body attachment was delayed because of problems with the system was not the prosecution's fault; nor does it appear C.M. could have been arrested for failing to appear — even if located — until the body attachment was operative.
"The prosecution is not required 'to keep "periodic tabs" on every material witness in a criminal case . . . .' [Citation.] Also, the prosecution is not required, absent knowledge of a 'substantial risk that this important witness would flee,' to 'take adequate preventative measures' to stop the witness from disappearing. [Citation.]" (People v. Wilson (2005) 36 Cal.4th 309, 342.)
Following our independent review, we conclude the prosecution bore its burden of establishing constitutionally adequate diligence in its attempt to procure C.M.'s attendance at trial. (See People v. Bunyard (2009) 45 Cal.4th 836, 855-856 & cases cited therein.) "Defendant's contention that the People should have done more . . . is irrelevant to our analysis. 'That additional efforts might have been made or other lines of inquiry pursued does not affect [our] conclusion. . . . It is enough that the People used reasonable efforts to locate the witness.' [Citations.]" (People v. Wise, supra, 25 Cal.App.4th at p. 344; see, e.g., People v. Thomas (2011) 51 Cal.4th 449, 503.)
In light of our conclusion, we need not reach the People's claim, advanced for the first time on appeal, that the judgment can be affirmed on the ground of forfeiture by wrongdoing.
II
FAILURE TO STAY SENTENCE ON COUNT 1
The trial court selected count 2 (robbery) as the principal term, then ordered that the terms imposed on counts 1 (cohabitant abuse) and 3 (witness dissuasion) run concurrently therewith. The court stated: "I agree with the probation officer that . . . this course of conduct . . . could be deemed to be one course of aberrant behavior."
Defendant now says the court was required to stay the sentence on count 1 pursuant to Penal Code section 654. We agree.
Penal Code section 654, subdivision (a) provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "[T]he section's proscription extends to include both concurrent and consecutive sentences . . . ." (In re Adams (1975) 14 Cal.3d 629, 636; accord, People v. Hernandez (2005) 134 Cal.App.4th 1232, 1239.)
Penal Code section 654's purpose is to ensure that punishment is commensurate with an offender's culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) Thus, the statute "precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of [Penal Code] section 654 depends on the 'intent and objective' of the actor. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268; see People v. Harrison (1989) 48 Cal.3d 321, 335.)
"The question whether [Penal Code] section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them. [Citations.] 'We must "view the evidence in a light most favorable to the [judgment] and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" [Citation.]' [Citation.]" (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313; accord, e.g., People v. Mejia (2017) 9 Cal.App.5th 1036, 1046; People v. Cleveland, supra, 87 Cal.App.4th at p. 271; but see People v. Perez (1979) 23 Cal.3d 545, 552 , fn. 5.)
Here, the trial court's finding was made in the context of the probation officer's recommendation that, pursuant to rule 4.425 of the California Rules of Court, the sentences "should run concurrently as the crimes were committed so close in time and place as to indicate a single period of aberrant behavior." However, "[Penal Code] section 654 is irrelevant to the question of whether multiple current convictions are sentenced concurrently or consecutively. . . . [Penal Code] [s]ection 654 does not allow any multiple punishment, whether concurrent or consecutive. [Citation.] Thus, the question of whether sentences should be concurrent or consecutive is separate from the question of whether [Penal Code] section 654 prohibits multiple punishment. [Citation.]" (People v. Deloza (1998) 18 Cal.4th 585, 594.) It follows that the trial court's finding does not, as defendant suggests, implicate error under Penal Code section 654. (See People v. Jones (1981) 124 Cal.App.3d 749, 753.)
By imposing separate sentences on all counts, the trial court implicitly found the offenses were committed pursuant to separate intents and objectives. With respect to count 1, the implied finding is not supported by substantial evidence. Rather, the evidence established both of defendant's abusive acts — the punch to C.M.'s head and the bite to her arm — had the sole intent and objective of accomplishing the taking of her phone, which taking formed the basis for the robbery count. Accordingly, Penal Code section 654 required the trial court to stay the sentence on count 1. (See, e.g., People v. Bauer (1969) 1 Cal.3d 368, 377; People v. Martinez (1984) 150 Cal.App.3d 579, 606, disapproved on another ground in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10.)
Defendant says this means the court security fee (Pen. Code, § 1465.8) and criminal conviction assessment (Gov. Code, § 70373) imposed with respect to count 1 must also be stayed. Defendant is wrong. Although Penal Code section 654 applies to penalty fines (see, e.g., People v. Tarris (2009) 180 Cal.App.4th 612, 627-628), it is settled the statute does not apply to financial obligations imposed under Penal Code section 1465.8 and Government Code section 70373 (People v. Sencion (2012) 211 Cal.App.4th 480, 483-484; People v. Sharret (2011) 191 Cal.App.4th 859, 865; People v. Crabtree (2009) 169 Cal.App.4th 1293, 1328; People v. Crittle (2007) 154 Cal.App.4th 368, 369-371).
DISPOSITION
The judgment is modified to provide that sentence on count 1 is stayed pursuant to Penal Code section 654. As so modified, the judgment is affirmed. The trial court shall cause to be prepared an amended abstract of judgment showing said modification, and shall forward a certified copy of same to the appropriate authorities.