Opinion
B200350
9-3-2008
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL BASSEY, Defendant and Appellant.
Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Appellant Samuel Bassey was convicted, following a jury trial, of one count of driving under the influence of alcohol and causing injury in violation of Vehicle Code section 23153, subdivision (a), and one count of driving with a 0.08 percent blood alcohol level and causing injury, both felonies. The jury found true the allegation that appellant personally inflicted great bodily injury on the victim within the meaning of Penal Code section 12022.7, subdivision (a). The trial court imposed a total sentence of five years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, contending that the trial court erred in permitting the People to use the preliminary hearing testimony of Wendi Castillo, one of the victims. Respondent contends that the trial court erred in failing to impose a security fee on each of the counts. We order the abstract of judgment amended to add the security fees, and affirm the judgment of conviction in all other respects.
Facts
On May 18, 2006, between 9:10 and 9:30 p.m. Ivan Aguinaga was standing next to a parked car on 83d Street in Los Angeles with his girlfriend Wendi Castillo. Appellant drove his van down 83d Street, swerved onto the wrong side of the street and hit Aguinaga and Castillo. Aguinaga suffered a cut on his side and had internal bleeding requiring surgery. It took 27 staples to close the cut. He has a scar 12 inches long from the injury.
After hitting Aguinaga and Castillo, appellant continued to drive a short distance, then stopped. Several people ran up to the van and pulled appellant out. Someone took the keys to the van.
The entire incident was witnessed by Cassandra McIsaac. She noticed that appellant smelled of alcohol, his speech was slurred and his walk was unsteady.
Los Angeles Police Department Officer Kevin Shaw responded to the scene. When the officer spoke with appellant, he noticed that appellants eyes were bloodshot, he smelled of alcohol and his speech was slurred. Appellant acknowledged that he had had three or four beers earlier. Officer Shaw administered field sobriety tests. Appellant performed poorly on them. He was arrested for driving under the influence.
At the police station, a breath test was administered. Appellants first blow into the Breathalyzer yielded a result of 0.14, his second blow was 0.11. Due to the discrepancy, Officer Shaw told appellant to blow a third time. Appellant refused to blow properly. He was advised that refusal would result in the immediate loss of his drivers license. He maintained his refusal.
Los Angeles Police Department criminologist Tatiana Garcia testified at trial and opined that appellant had between 0.13 and 0.16 percent blood alcohol content at the time he hit Aguinaga and Castillo.
Appellant did not present any evidence at trial.
Discussion
1. Unavailable witness
Appellant contends that the prosecution did not make a sufficient showing of due diligence in its attempts to locate Wendi Castillo and so the trial court erred in permitting the use of her preliminary hearing testimony. We see no error.
"Evidence of former testimony is not made inadmissible by the hearsay rule 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." (Evid. Code, § 1291, subd. (a)(2); see also § 686, subd. (3)(a).)
A declarant is an "unavailable witness" if he 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 courts process." (Evid. Code, § 240, subd. (a)(5).) Whether the proponent has exercised reasonable diligence in attempting to secure a witnesss presence is a question dependent upon the totality of the facts of the individual case. (People v. Sanders (1995) 11 Cal.4th 475, 523.) The courts determination of the proponents diligence is reviewed de novo. (People v. Cromer (2001) 24 Cal.4th 889, 892-893.)
The totality of the proponents efforts must be considered in assessing whether it exercised reasonable diligence. (People v. Sanders, supra, 11 Cal.4th at p. 523.) The court may consider whether the witness would have been produced if reasonable diligence had been exercised. (Ibid.) While the proponent must exercise reasonable diligence, he need not do everything possible to procure a witness for trial. Thus, a finding of unavailability is not defeated by a showing that the proponent could have done more to locate the witness. (People v. Cummings (1993) 4 Cal.4th 1233, 1298.)
Here, Erick Mankau, a District Attorney investigator, personally served a subpoena on Castillo at her residence on April 16 ordering her to appear in court on April 23. Castillo had previously been cooperative with the prosecution.
When Mankau went to Castillos residence on April 24, the apartment was empty and had a "For Rent" sign in the window. He called the number on the sign and spoke with the person renting out the apartment. That man said that he did not have any contact information for Castillo. The man added that he had seen Castillo the day before driving in the neighborhood in a white Buick or Oldsmobile. Castillos previous addresses were in the same area. Mankau searched the area, but did not see Castillo or a white Buick/Oldsmobile. Mankau also spoke with the neighbor who lived next door to the now empty apartment, but she had no idea of Castillos whereabouts.
Mankau returned to his office and searched DMV records. He did not find an updated address for Castillo. There were no vehicles registered in her name. Mankau also searched the on-line white pages and a web search engine that searches for peoples personal information, but got no results. He checked the county jail and missing persons report, but found no record of Castillo. He also called Castillos probation officer three times, but was unable to reach him. Mankau left messages with the probation officer, but did not receive a reply.
We find these efforts to constitute reasonable diligence. Appellant contends that there were other avenues that could have been explored, such as contacting hospitals or the probation officers supervisor. However, these possibilities do not negate the substantial efforts made by Investigator Mankau. (People v. Cummings, supra, 4 Cal.4th at p. 1298 [finding of unavailability not defeated by showing proponent could have done more to locate witness].) Further, the information uncovered by Investigator Mankau strongly suggests that Castillo had chosen to disappear and to conceal her whereabouts. She made no mention of the move when served with the subpoena, and did not tell her landlord or her neighbor where she was going. Thus, it seems extremely unlikely that the avenues of investigation would have borne fruit. (See People v. Sanders, supra, 11 Cal.4th at p. 523 [court may consider whether the witness would have been produced if reasonable diligence had been exercised].)
Further, even assuming for the sake of argument that the trial court had erred in admitting Castillos preliminary hearing testimony, we would find the error harmless under any standard of review. Aguinaga and McIsaac provided live detailed testimony about the incident. Their testimony was not disputed. Officer Shaw testified that appellant admitted that he was driving the van when he hit Aguinaga. Officer Shaws testimony about his observations of appellants intoxication and the results of appellants breath tests were not disputed. There is no reasonable possibility or probability that appellant would have received a more favorable outcome if Castillos testimony had been excluded.
2. Fees and fines
On October 1, 2007, this Court requested that the parties brief the effect of People v. Chavez (2007) 149 Cal.App.4th 1340 on the fines imposed in this case. Chavez considers the effects of section 1465.7 and Government Code section 70372 on fines imposed in criminal cases. The California Supreme Court granted review in Chavez, S153920. On October 5, 2007, the Governor approved Senate Bill No. 425 which was enacted to clarify that the state construction penalty is not to be imposed on restitution fines. Section 22 of that bill states that it was enacted in part to "construe and clarify the meaning and effect of existing law and to reject the interpretation given to the law in People v. Chavez (2007) 150 Cal.App.4th 1288." Thus, appellant concludes, and respondent agrees, that the state construction penalty does not apply to the restitution or parole revocation fines imposed in this case.
The Court dismissed review and remanded the case to this Court on October 24, 2007.
Respondent contends, and we agree, that a $20 court security fee pursuant to section 1465.8, subdivision (a)(1) should have been imposed on each of appellants convictions in this case. (§ 1465.8, subd. (a)(1); see People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866; People v. Crittle (2007) 154 Cal.App.4th 368, 370-371 [court security fee is imposed even if punishment is stayed on the conviction].)
Disposition
A court security fee of $20 is imposed on both counts one and two pursuant to section 1465.8, subdivision (a)(1). The clerk of the superior court is instructed to prepare an amended abstract of judgment reflecting these additional fines and to deliver a copy to the Department of Corrections and Rehabilitation. The judgment of conviction is affirmed in all other respects.
We concur:
TURNER, P. J.
MOSK, J.