Opinion
F076253
02-05-2020
THE PEOPLE, Plaintiff and Respondent, v. RAUL TORRES, Defendant and Appellant.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Kathleen A. McKenna, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F13905713)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M. Skiles, Judge. Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
While walking with his girlfriend along a street in Del Rey, California, on August 11, 2012, Michael Escalera was shot and killed by a gun fired from a vehicle. Defendant and Tomas Blanco were charged with first degree murder (Pen. Code, § 187, subd. (a)) (count1) and with shooting at another person from a motor vehicle (§ 26100, subd. (c)) (count 2). As to each count, it was alleged defendant personally and intentionally discharged a firearm in violation of section 12022.53, subdivisions (d) and (e)(1), and that the charged conduct was committed for the benefit of, at the direction of, or in association with a criminal street gang under section 186.22, subdivision (b)(1).
All further statutory references are to the Penal Code unless otherwise indicated.
At the first trial in October 2014, a mistrial was declared when the jury became deadlocked. The case was retried in July 2017. The jury found defendant guilty on both counts and found true all gun and gang enhancement allegations under sections 12022.53 and 186.22. The trial court imposed an aggregate indeterminate sentence of 50 years to life. On count 1, defendant was sentenced to a term of 25 years to life, and a consecutive term of 25 years to life for the firearm enhancement under section 12022.53, subdivisions (d) and (e)(1). The court also imposed a 10-year term for the gang enhancement under section 186.22, subdivision (b)(1), but stayed that term under section 654. On count 2, the court imposed the upper term of seven years (§ 26100, subd. (c)) with an additional, consecutive term of 25 years to life for the firearm enhancement under section 12022.53, subdivisions (d) and (e)(1), and a 10-year term for the gang enhancement under section 186.22, subdivision (b)(1). The sentences imposed for count 2 were stayed pursuant to section 654.
On appeal, defendant argues the trial court erroneously excluded the prior testimony of a defense witness who became unavailable before the trial. Defendant also maintains he is entitled to resentencing under Senate Bill No. 620 (Stats. 2017, ch. 682, §§ 1, 2) (Sentate Bill No. 620 or Sen. Bill No. 620) to allow the trial court an opportunity to exercise its discretion to strike the firearm enhancements.
The People concede remand is warranted for resentencing under Senate Bill No. 620, but they dispute the trial court erred in excluding prior testimony of a purportedly unavailable witness.
We agree with the parties that remand is appropriate to allow the trial court an opportunity to exercise its discretion, pursuant to Senate Bill No. 620, to strike the firearm enhancements under section 12022.53. In all other respects, the judgment is affirmed.
FACTUAL SUMMARY
Only the relevant facts and evidence are summarized below.
On August 11, 2012, Michael Escalera and his girlfriend, Sarah, were walking from the apartment they shared with Escalera's mother and sisters to a store a few blocks away. While they were walking on the sidewalk, a blue vehicle—with the front passenger side closest to them—pulled alongside them. The car's front windows were down, and Sarah could see defendant was the driver. Defendant pointed a gun at them from the driver's side of the car while the front-seat passenger leaned back. Sarah heard the gun fire, Escalera fell to the ground bleeding, the car drove off, and Escalera said he wanted to go back to their apartment just a block away in case the vehicle returned.
With Sarah's help, Escalera was able to get back to the street corner where the apartment building was located, and Sarah ran inside to tell Escalera's sisters he had been shot. Sarah ran back outside, but by then Escalera was lying facedown on the ground. Two of Escalera's friends drove by, and they stopped to help. One of Escalera's sisters called 911, sheriff's deputies and paramedics responded, but Escalera was pronounced dead at the scene. Defendant was charged with two counts related to Escalera's death: murder and shooting at another person from a motor vehicle. A trial was held in October 2014, but the jury hung, and a mistrial was declared.
The case was retried in July 2017. The prosecution introduced testimony that Escalera was a former Norteño gang member who had dropped out of the gang, and that defendant and Blanco were active Norteño members. After Escalera left the gang, active Norteño members would drive around Escalera's apartment yelling things out their windows such as "Dropout killer." A few months before the shooting, Sarah and Escalera were sitting in chairs outside the apartment adjacent to the street; defendant pulled up in his blue Buick with tinted windows, stood next to his car, and started arguing with Escalera. Ultimately, defendant returned to his vehicle and drove away without further incident.
Jessica, Escalera's sister who also lived at the apartment in Del Rey, had dated defendant a few years previously. On the night of the shooting, she was standing just outside the apartment, which was adjacent to the road, while making a telephone call at approximately 7:45 to 7:50 p.m. when she saw defendant driving past the apartment in a blue car with distinctive chrome rims. Before long, she saw him drive past the apartment again, going the other direction. He stopped at the stop sign at the end of the street, looked out his window and nodded to her—Jessica saw an individual in the passenger seat, but she did not recognize who it was. She finished her call and went back inside the apartment. A few minutes later, after Sarah came into the apartment to tell them Escalera had been shot, Jessica grabbed the cordless telephone and ran outside with Sarah while calling 911. She described defendant to the 911 emergency dispatcher.
Rosanna P. saw defendant and Tomas Blanco in Del Rey on the evening of the shooting in the parking lot of a grocery store a few blocks from Escalera's apartment. Defendant was standing next to his blue car with "big rims" and tinted windows, which she had seen him driving around town many times before. Defendant made a crass comment to her when she exited her vehicle in the parking lot, they exchanged unfriendly words, and she went inside the store with her children. When she returned to the parking lot four to five minutes later, defendant and Blanco were gone. When she and her children exited the car at their house, they heard shots, and then heard sirens and saw a helicopter a few minutes later.
Rosa M. was walking home from the same grocery store that evening with her best friend, Joselle, her three-year-old niece, and her seven-year-old brother. They were across the street from Escalera and Sarah when the shooting occurred. She saw a car park next to Escalera and Sarah, and the couple stopped walking. The passenger side of the vehicle was closest to Escalera and Sarah. Martinez saw defendant in the driver's seat, but she did not see the passenger. She knew defendant well: they had been in a relationship in the past, but they were not dating at the time of the shooting. She recognized the car that pulled up alongside Escalera and Sarah as defendant's—she had seen him driving it on many previous occasions; the wheels of the car had distinctive rims. After the car stopped next to Escalera and Sarah, Martinez heard a gunshot, the car drove away quickly, and she saw Escalera limping and running back to the apartments with Sarah.
Rosa had also seen defendant and Tomas Blanco earlier at the store where Rosa had been with the kids and Joselle. Rosa had spoken to defendant briefly before she walked into the store, which was not an angry conversation. Their relationship had not ended badly, and there was no acrimony between the two. Blanco talked with Joselle while they were in the store; Rosa and Joselle saw Blanco leave the store, and they exited the store with the kids a few minutes later.
The defense presented an alibi defense. Juanita F. testified defendant was at her house for a barbecue on a Saturday or Sunday in August 2012—defendant and her daughter were friends at that time. Defendant had arrived at Juanita's house with his friend, Anthony Thierry, about 7:00 p.m., and they stayed at the house for approximately 45 to 90 minutes. Thierry confirmed he had gone to the barbecue with defendant on the night of the shooting at approximately 7:00 p.m. in defendant's car, which had the smaller stock rims on it. The clerk at the Del Rey grocery store, where Rosanna and Rosa claimed to have seen defendant that night, testified she had not seen defendant in the store within a week of the shooting.
Despite the testimony of some witnesses who claimed to have seen defendant in Del Rey at the time of the shooting driving a car with distinctive chrome rims, defendant testified the chrome rims were not on his car that night. The front tires and chrome rims had been replaced with smaller stock rims a few weeks before, and he had moved the chrome rims to his mother's house in Del Rey on August 2, 2012. The rear two tires and chrome rims were taken off the car the morning of the shooting because they had been slashed. In the early hours of August 11, 2012, a girl whom defendant had been dating and her cousin slashed the rear tires of his vehicle while it was parked at his apartment in Fresno. Defendant had a broken wrist at the time, so when he discovered the flat tires in the morning, he called for roadside assistance and they took the two rear tires and chrome rims off the car and replaced them with the smaller stock rims defendant had in his trunk. He placed the slashed rear tires with the chrome rims on his apartment patio, although later he testified the rims stayed in his car. He drove to Del Rey at about 5:00 p.m. that night to drop off some items at his mother's house, and then he drove back to Fresno to pick up Thierry and they went to the barbecue. His mother's boyfriend testified that a set of chrome rims had been at defendant's mother's house for about two or three weeks before August 11, 2012. An investigating officer noticed a pair of chrome rims in the backyard of his mother's house on August 15, 2012.
Defendant admitted he knew Escalera and that the two had argued a few weeks before the shooting because Escalera had "flipped [defendant] off" when he had driven past the apartment, but they had no other problems. Defendant also admitted he had associated with the Norteño gang in the past, but he had dropped out after the birth of his daughter in 2011. Defendant knew Blanco; he also knew Jessica was Escalera's sister, but they had never dated. He had dated Rosa M. for a few months in the past, but that relationship had ended poorly, and Rosa had keyed his car.
The jury convicted defendant on both counts and found true all the gun and gang enhancement allegations. The court sentenced defendant to an aggregate term of 50 years to life, and defendant appealed.
DISCUSSION
I. Exclusion of Defense Witness's Prior Testimony
A. Background
Defendant argues the court erred in refusing to admit the prior trial testimony of defense witness Walter Villarreal due to Villarreal's unavailability. Defendant maintains the court failed to consider all the efforts made to serve Villarreal with a trial subpoena, including over 30 service attempts in 2015. Defendant asserts the court also failed to consider that defense investigators had sought out the witness's family and neighbors for information on his whereabouts, and the court failed to acknowledge evidence that Villarreal was evading service and had become an unwilling witness. Defendant argues the court erred in faulting defense investigators for not requesting assistance from law enforcement in locating Villarreal, even though the lead investigator testified law enforcement was unwilling to aid a defense investigator in locating a witness. In sum, defendant contends the defense made diligent attempts to locate and serve Villarreal: 30 service attempts were made in 2015 at the Del Rey residence, six more service attempts were made in 2017 at the Del Rey residence, and then they searched for Villarreal in Texas, located an address, and attempted to serve him there four times without success.
The People dispute the court erred in refusing to admit Villarreal's prior trial testimony as an unavailable witness. According to the People, only a few attempts were made to serve Villarreal in Del Rey in 2017, the only resource the defense used to locate the witness was a single database, and the same failed service methods from 2015 were attempted again in 2017 with the same unsuccessful results. The difficulty locating Villarreal in 2015 should have alerted defense counsel that "simply going to [Villarreal's] prior address was not a fruitful method for locating the witness." The People further maintain the defense did not request assistance from law enforcement or use any other resource to locate Villarreal. Moreover, no specific information was provided about the efforts the Texas investigator made to serve Villarreal in the two days before the hearing on this matter. As such, the People assert defendant failed to exercise due diligence in locating Villarreal, Villarreal was not unavailable for purposes of the prior-testimony hearsay exception, and his prior trial testimony was properly excluded.
1. Villarreal's October 2014 Trial Testimony
Walter Villarreal testified at the first trial on October 21, 2014. On the evening of August 11, 2012, he heard a "pop" sound that seemed fairly close to the house; he was unsure if the sound was fireworks or gunshots—neither was unusual. He walked to his front door to determine what had caused the noise, and he saw a car driving by his house, eastbound on Morro, at a high rate of speed. It was a small, blue car with what looked to be primer paint on its trunk—i.e., gray primer that is typically on cars before they are painted. Because cars speed down his street all the time, it did not occur to him the blue vehicle he saw could have been related to the "popping" sound he heard that he later discovered was a shooting.
As the car went by the house, Villarreal stepped outside the house; he looked left and saw a bunch of people milling around. He looked to his right, and the blue car made it to the end of the street and made a right turn, disappearing from sight. Although it was "a long way down the road," he saw "some heads" through the car's back window. He went back into the house, and then he heard sirens. At the time, Villarreal was an on-call firefighter. When his pager did not alert, he turned on his scanner, and he heard deputies were coming to Del Rey to secure the scene of a shooting. He put on his gear and went to the scene to assist once he heard the ambulance had been cleared to approach the scene. Once at the scene, he provided assistance at the paramedic's direction; after the victim had been pronounced dead, Villarreal returned home, but then went back to the scene to return a utility belt. Back at the scene, Villarreal was questioned by a deputy to whom Villarreal explained his role in assisting the paramedic. It did not occur to Villarreal to mention to the deputy the "pop" noise he had heard and the blue car going by his house because "[c]ars speed down [his] street all the time" and "[t]hat was the last thing on [his] mind."
Investigators from the district attorney's office questioned Villareal at his house in Del Rey. He also had a phone call with someone for the defense with whom he discussed what he had seen and heard on August 11, 2012, before he went to assist at the scene of the shooting. The contact with defense arose after Villarreal had a conversation with defendant's mother. She had asked him whether he had seen anything. Villarreal told her that he was home, heard "a pop," went outside, and saw a car speed by, which was "nothing new" as it "happens a lot." She asked if her son's defense lawyer could call him, and Villarreal agreed to the contact.
2. Procedural Background
The jury in the first trial was unable to reach a verdict, and on October 28, 2014, a mistrial was declared. A new trial date was tentatively set for August 3, 2015. In February 2015, new counsel was appointed for defendant, and the retrial was set for March 5, 2015. The trial was continued multiple times in 2015, largely based on discovery issues relating to an investigating officer's personnel records. Discovery delays continued throughout 2016 and into 2017. On May 22, 2017, defense filed its final motion to continue the retrial based on missing discovery materials; the trial court granted the motion that day and reset the trial for July 17, 2017.
On July 17, 2017, defendant filed a motion to admit the prior trial testimony of Walter Villarreal from the 2014 trial due to his unavailability. Defendant maintained that despite efforts to serve Villarreal over 30 times in 2015, attempts to locate him were unsuccessful. In 2017, defense made five additional unsuccessful attempts to serve Villarreal at his residence in Del Rey. In April 2017, Villarreal's mother told the process server her son had moved to Texas, but she did not supply an address; when a final attempt to serve Villarreal in Del Rey was made on July 17, 2017, Villarreal's mother instructed the process server not to come back to their house as he was unwelcome. On July 26, 2017, a defense investigator located a Texas address for Villarreal, and four further unsuccessful service attempts on Villarreal were made at that address.
At a pretrial hearing on July 17, 2017, defense counsel stated the service matter as to Villarreal was "still developing," and the court indicated it would address the defense motion to admit Villarreal's prior trial testimony "if and when we need to."
B. Analysis
On July 28, 2017, during July 2017 retrial, the court held a hearing outside the presence of the jury regarding defendant's motion to admit Villarreal's 2014 trial testimony due to Villarreal's unavailability. The trial court ruled Villarreal was not unavailable as a witness because the defense had not exercised reasonable diligence in attempting to locate him; thus, Villarreal's 2014 trial testimony was inadmissible. Defendant contends the trial court erred in finding the efforts to locate Villarreal were inadequate. We disagree.
Testimony given at a prior criminal trial may be introduced at a later court proceeding if, among other things, the declarant is unavailable. (Evid. Code, § 1291, subd. (a) (1), (2).) The unavailability of a witness may be established where the witness 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." (Evid. Code, § 240, subd. (a)(5).) "Although section 240 refers to 'reasonable diligence,' [our high] court has often described the evaluation as one involving 'due diligence.'" (People v. Cromer (2001) 24 Cal.4th 889, 898.)
As Villarreal was a defense witness, and defendant is the proponent of admitting Villarreal's prior trial testimony, the confrontation clause is not implicated. Nevertheless, the standard for due diligence under the state law prior-testimony hearsay exception is the same as that which applies to assessing unavailability for purposes of the confrontation clause. (People v. Herrera (2010) 49 Cal.4h 613, 622, quoting People v. Valencia (2008) 43 Cal.4th 268, 291-292 [as it pertains to unavailability under the Evid. Code and the 6th Amend.'s confrontation clause, "'California law and federal constitutional requirements are the same ....'"].)
"What constitutes due diligence to secure the presence of a witness depends upon the facts of the individual case. (See People v. Cavazos (1944) 25 Cal.2d 198, 200-201.) The term is incapable of a mechanical definition. It has been said that the word 'diligence' connotes persevering application, untiring efforts in good earnest, efforts of a substantial character. (People v. Horn (1964) 222 Cal.App.2d 1, 5.) The totality of efforts of the proponent to achieve presence of the witness must be considered by the court. Prior decisions have taken into consideration not only the character of the proponent's affirmative efforts but such matters as whether he reasonably believed prior to trial that the witness would appear willingly and therefore did not subpoena him when he was available (People v. Banks (1966) 242 Cal.App.2d 373, 377), whether the search was timely begun, and whether the witness would have been produced if reasonable diligence had been exercised [citation]." (People v. Linder (1971) 5 Cal.3d 342, 346-347.)
Other factors include the importance of the witness's testimony and whether leads to the witness's possible location were reasonably explored. (People v. Thomas (2011) 51 Cal.4th 449, 500.) In cases where the defendant is attempting to locate and subpoena a witness, the finite realities of time and money may properly enter the due diligence calculus. (People v. Linder, supra, 5 Cal.3d at p. 348.) Where, as here, the facts surrounding the service attempts are undisputed, we independently review whether the undisputed facts demonstrate due diligence. (People v. Cromer, supra, 24 Cal.4th at pp. 896-903.)
Aindra Evans testified she had been hired to serve Villarreal with a subpoena in 2015 and 2017. She made 16 attempts to serve him in 2015 at his last known residence in Del Rey. In June 2015, she spoke with Villarreal's grandmother, who said Villarreal was not there, but she offered no other details about his whereabouts. On July 6, 2015, Evans received a phone call from a blocked number; the caller said Villarreal was at his house on Morro Street in Del Rey. Evans went to the Morro Street residence, and a car pulled up and the driver asked if Evans was looking for Villareal. Evans indicated she was, and the driver said if Evans followed him around the corner in her car, he would tell Evans where to locate him. When Evans drove around the corner, "a whole bunch of Hispanic guys came out and sat on [her] car and told [her she] need[ed] to get out of there and stop looking for [Villareal]." Evans felt threatened and that was the last attempt she made in 2015 to serve Villarreal with a trial subpoena. Evans went back to the same Del Rey residence again in March 2017 on four separate occasions, but no one answered the door.
Alan Meindersee attempted service on Villarreal at the Morro Street residence in Del Rey on April 21, 2017. A woman who identified herself as Walter's mother answered the door, and she informed Meindersee that Villarreal had moved to Texas, but she refused to give any other details. He left a copy of the subpoena with Villarreal's mother and asked that she provide it to her son.
Meindersee's declaration mistakenly listed the service attempt date as April 12, 2017; the court clarified with Meindersee the correct date was April 21, 2017.
Charles Hallman, a private investigator, testified 30 unsuccessful service attempts on Villareal were made in 2015. In April 2017, after he obtained information Villarreal was in Texas, he searched a "TLO" database, which performs skip tracing, but he could find no address associated with Villarreal in Texas—only the Del Rey address was noted in the database. Then, two days before the July 28, 2017, hearing, Hallman discovered an address for Villarreal in Texas on the TLO database. Hallman contacted a private investigator in Wichita Falls, Texas, who made four unsuccessful attempts to serve Villarreal with a trial subpoena at the Texas address. Upon the court's questioning, Hallman explained he had never asked law enforcement for information about Villarreal's location because when he had asked for assistance from law enforcement in the past, he had been told that unless he is a law enforcement officer, he cannot obtain that information without going through the subpoena process. Hallman also conceded that before service efforts were resumed in March 2017, no efforts were made to determine whether Villarreal was still located at the Del Rey residence where they had attempted to serve him in 2015.
Sheri Hall, an investigator for the district attorney's office, testified she had spoken with Villarreal at his residence on Morro Street in Del Rey in September 2015. She did not recall whether she attempted to serve a subpoena on him at that time. She had been to his residence before September 2015, but she had not returned since then.
Based on this testimony, we conclude the trial court properly ruled defendant was not reasonably diligent in attempting to locate Villarreal. This conclusion does not rest on an absence of herculean surveillance efforts or a no-holds-barred investment of time and resources to locate and serve Villareal. Reasonable diligence is not measured in theoretical possibilities, abstract alternatives, or futile gestures. It is measured by what actions are reasonable under the circumstances presented. (People v. McElroy (1989) 208 Cal.App.3d 1415, 1428 ["The law requires only reasonable efforts, not prescient perfection."], disapproved on other grounds by People v. Cromer, supra, 24 Cal.4th at p. 901, fn. 3; People v. Smith (2003) 30 Cal.4th 581, 611 [reasonable diligence does not demand engaging in futile acts].) The record does not establish the efforts taken to locate Villarreal were reasonably diligent under the circumstances presented.
By 2015, Villarreal was quite clearly an unwilling witness. Twenty-two unsuccessful service attempts were documented in the summer of 2015 at Villareal's residence in Del Rey, and Hallman testified eight other undocumented attempts were made that summer with no success. Not only was there evidence Villarreal was evading service, a process server was physically intimidated in July 2015 when she attempted to serve Villarreal at the Del Rey address. Then, due to multiple continuances of the trial, there was a 19-month hiatus in attempting to locate or serve Villarreal, stretching from July 2015 to March 2017.
When service attempts resumed in March 2017, legitimate factors weigh against concluding the due diligence threshold was satisfied. Defense maintains Villarreal was a critical witness because he was the only one who, just after the shooting occurred, described seeing a vehicle that was not consistent with defendant's car. In other words, Villarreal's testimony offered some support for defendant's alibi defense, and defendant maintains Villarreal's testimony was so vital in this regard its exclusion at the retrial was a prejudicial error of constitutional magnitude. The importance of a witness's testimony amplifies the due diligence standard. (People v. Louis (1986) 42 Cal.3d 969, 990-991 [due diligence standard more stringent when the absent witness was vital to the prosecution's case].)
Despite indications Villarreal had become an unwilling witness coupled with the defense's perception Villarreal's testimony was vital to defendant's alibi defense, Hallman conceded that before service attempts were resumed in March 2017, no effort was made to confirm whether Villarreal was still located at the Del Rey residence or any other information that would provide alternative locations to attempt service. Instead, the same failed service methods were deployed again at a location where Villarreal had not been confirmed to reside for nearly two years.
Beyond that, when information was received in April 2017 that Villarreal had relocated to Texas, Hallman checked the TLO database, which revealed no Texas address associated with Villarreal. Yet, there is no evidence Hallman rechecked the database prior to July 26, 2017, when the database revealed a Texas address for Villarreal. Hallman testified the TLO database is updated frequently, but he was unsure how often. There is no evidence he sought information about when the database would next be updated after his unfruitful search in April, whether the database sends notification if updates relevant to a search query have been made, or whether it was impossible to determine when updates would occur and further repeat searches were cost prohibitive. There is no information why the Texas address was not discovered until July 26, 2017, just before the prosecution concluded its case-in-chief; thus, there is basis to conclude the failure to locate the Texas address until July 26, 2017, exhibited reasonable diligence.
Additionally, while the defense and their investigator may have rightly questioned the legitimacy of the information Villarreal had relocated to Texas, no attempts to serve a trial subpoena on Villarreal in Del Rey were made between April 21, 2017, and July 17, 2017—there is no evidence any research efforts were made to confirm Villarreal was still in Del Rey or California generally, other than the single check of the TLO database in April.
Finally, even assuming Hallman had been taking all reasonable measures to confirm Villarreal's address in California and obtain updates from the TLO database between April and July, there is no evidence defense was prepared to subpoena an out-of-state witness should a precise location for Villarreal in Texas become known. A California trial court subpoena cannot compel an out-of-state witness to California to testify—it is unenforceable. (Minder v. Georgia (1902) 183 U.S. 559, 561-562; People v. Masters (1982) 134 Cal.App.3d 509, 520-522, superseded by statute on other grounds [a subpoena issued by a California court delivered at any place outside of California has no legal effect].) Evidence Code section 240, subdivision (a)(5), requires the proponent of the prior testimony to establish he was unable to procure the witness's attendance by the "court's process," which includes interstate process. (People v. Joines (1970) 11 Cal.App.3d 259, 266; People v. Nieto (1968) 268 Cal.App.2d 231, 235-241.)
An out-of-state witness may be compelled to California to testify in a criminal proceeding through the Uniform Act to Secure the Attendance of Witnesses From Without the State in Criminal Cases (Uniform Act), which California adopted in 1937. (§ 1334 et seq.) Section 1334.2 outlines the process for seeking to compel an out-of-state witness to appear for a criminal prosecution, which begins by obtaining a certificate from the court where the prosecution is pending that the out-of-state witness is material. (Ibid.) That certification is then presented to the appropriate state court where the witness resides for a determination whether the witness is indeed material and necessary, that it will not cause undue hardship to the witness to attend the proceedings and testify, that the laws of the state where the prosecution is pending will protect the witness from arrest and service of civil and criminal process, and that the witness will be furnished in advance certain necessary travel and per diem sums. (Ibid.) Upon these findings, the other state's court will issue a subpoena compelling the witness's appearance. (Ibid.; see Tex. Code Crim. Proc., Art. 24.28, § 3, subd. (b).)
The Uniform Act has been adopted in all 50 states, and Texas has codified its provisions in the Texas Code of Criminal Procedure. (See Tex. Code Crim. Proc., Art. 24.28, § 3, subd. (a).) --------
Despite the purported importance of Villarreal's testimony, the defense never sought a continuance to locate Villarreal or indicated to the court there may be a need to secure a certificate for service on an out-of-state witness material to the defense case either when the defense requested a trial continuance in May 2017 or when Hallman discovered a Texas address for Villarreal on July 26, 2017. Thus, when Hallman finally discovered a Texas address for Villarreal on July 26, 2017—which was not necessarily reasonably timely on this record—and then hired a private investigator to attempt service of the subpoena in Texas on July 27, 2017, there is no evidence that subpoena was enforceable. Because the record is silent as to what steps could (or could not) have been taken to search for Villarreal in the TLO database between April and July, there is no basis to conclude that locating an address for Villarreal in Texas at the end of July was reasonably diligent. When the Texas address was discovered, there is no evidence the trial subpoena the investigator attempted to serve in Texas was enforceable or that defense took any steps to obtain an enforceable subpoena through the Uniform Act. In other words, even if Villarreal had been served in Texas but nonetheless refused to appear, on this record we still would be unable to conclude defense used all reasonable means to secure his attendance at trial.
We conclude the trial court did not err in refusing to admit Villarreal's prior trial testimony as there was insufficient evidence to conclude reasonable diligence had been used to secure his appearance pursuant to Evidence Code section 240, subdivision (a)(5). Defendant contends the exclusion of this evidence constituted federal constitutional error. However, because the trial court did not err under state law in excluding this evidence over defendant's objection, his claim that the exclusion of evidence violated his constitutional rights to a fair trial and to present a defense are unpersuasive. (People v. Fuiava (2012) 53 Cal.4th 622, 670; People v. Hall (2007) 41 Cal.3d 826, 834 ["As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's [federal constitutional] right to present a defense."].) Concluding there was no error, we decline to conduct a harmless error analysis. (See People v. Miramontes (2010) 189 Cal.App.4th 1085, 1103.)
II. Sentencing
Defendant argues the case should be remanded for resentencing under Senate Bill No. 620. The People concede remand is appropriate pursuant to Senate Bill No. 620 to allow the court an opportunity to exercise its discretion to strike the firearm enhancements imposed under section 12022.53, subdivisions (d) and (e).
The jury found true the section 12022.53, subdivision (d) and (e) enhancements alleged on counts 1 and 2. The court imposed the enhancements as to both counts, but stayed the enhancement as to count 2. At the time of sentencing, the trial court had no discretion to strike the firearm enhancement imposed under section 12022.53. Effective January 1, 2018, Senate Bill No. 620 amended sections 12022.5 and 12022.53. Pursuant to those amendments, "[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (§§ 12022.5, subd. (c), 12022.53, subd. (h).) "The discretion conferred by the statute 'applies to any resentencing that may occur pursuant to any other law' [citation], and it applies retroactively to nonfinal judgments." (People v. McDaniels (2018) 22 Cal.App.5th 420, 446, quoting § 12022.53, subd. (h) & citing People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.)
We accept the parties' position that the statute applies retroactively to defendant's case. (People v. Phung (2018) 25 Cal.App.5th 741, 763.) The People concede, and we agree, remand for a new sentencing hearing is appropriate. "[W]hen the record shows that the trial court proceeded with sentencing on the ... assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228; see People v. Almanza (2018) 24 Cal.App.5th 1104, 1110 [remand required unless record reveals clear indication trial court would not have reduced the sentence even if it had the discretion to do so at the time of sentencing].) During sentencing, the trial court stated twice the sentences imposed for the firearm-use enhancement were mandatory, and there is no clear indication the court would not have stricken the sentence enhancements had it the discretion to do so. Remand is appropriate.
We express no opinion how the trial court should exercise its discretion on remand.
III. Clerical Error
The court imposed a sentence on count 1 as follows: "So as to Count 1 [under section 187, subdivision (a),] the Court is imposing the mandatory sentence of 25 years to life." As to the firearm enhancement under section 12022.53, subdivisions (d) and (e), the court imposed an additional, consecutive term of 25 years to life. The court indicated the total "aggregate sentence as to Count 1 is 25 years to life with a consecutive 25 years to life for the firearms enhancement." The abstract of judgment does not include the sentence of 25 years to life imposed for the conviction of first degree murder on count 1, it only includes the 25 years to life imposed for the firearm enhancement under section 12022.53.
Where there is a discrepancy between the oral pronouncement of judgment and the minute order or abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) The clerical error in the abstract of judgment must be corrected to accurately reflect the sentence imposed as to count 1. (Id. at p. 185 [appellate courts that have properly assumed jurisdiction of cases may order correction of abstracts of judgment that did not accurately reflect the oral judgments of the sentencing court].)
DISPOSITION
The matter is remanded to allow the trial court to consider whether to exercise its discretion to strike or dismiss the firearm enhancements pursuant to Senate Bill No. 620 (see §§ 1385, 12022.5, subd. (c), 12022.53, subd. (h)), and, if necessary after the exercise of that discretion, resentence defendant as appropriate. The trial court is also instructed to prepare an amended abstract of judgment reflecting the 25-years-to-life sentence imposed under section 187, subdivision (a), as to count 1. The amended abstract of judgment shall be forwarded to the Department of Corrections. In all other respects, the judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
POOCHIGIAN, J.