Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Kern County, No. BF121603B, Clarence Westra, Jr., Judge.
Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
A jury convicted appellant Eddie Ray Haywood of possession of cocaine base for sale, a violation of Health and Safety Code section 11351.5. Haywood then admitted two prior drug-related convictions and a prison prior. He contends the trial court committed reversible error when it denied his request to have read into evidence former codefendant Brandon Brewster’s prior testimony from a suppression hearing and also denied his request made on the first day of trial for an order requiring the prison authorities to produce Brewster to testify at the trial. Alternatively, he claims defense counsel rendered ineffective assistance for not seeking earlier to compel Brewster’s testimony. We will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On December 10, 2007, Bakersfield Police Officer Brent Stratton and three other officers went to the apartment of codefendant Brewster to arrest him. Brewster answered the door but then tried to close the door on the officers. Stratton was able to put his arm and foot in the doorway to prevent the door from closing.
After entering the apartment, Stratton saw three other adults and an infant. A pregnant woman was lying on the couch, codefendant Jerome Evans was sitting on the couch holding the infant, and Haywood was at the kitchen table.
On the table in front of Haywood was a six-inch stand, on top of which was an “off-white chunky” substance Stratton suspected was rock cocaine and a razor blade. Also on the table was a grocery bag containing $539 in cash. Stratton believed the chunky substance was being cut with the razor blade in order to be sold.
After Brewster was handcuffed, Stratton conducted a patdown search of Haywood. Stratton found a plastic baggie containing more rock cocaine and $139 in Haywood’s pants pocket.
In a search of the apartment, Stratton found more plastic baggies, a digital gram scale, four cell phones, and a plastic baggie containing cocaine base under the couch cushion.
Stratton advised Haywood of his rights. Haywood waived his rights and admitted he was selling cocaine to support his own habit. Haywood claimed he had just started selling that day.
Haywood and codefendants Brewster and Evans were charged with possession of cocaine base for sale. It also was alleged that Haywood had suffered four prior felony convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a), and that he had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
Haywood filed a motion to suppress evidence. Prior to the hearing on the motion, Brewster pled no contest to a charge of felon in possession of a gun in exchange for dismissal of all remaining charges and testifying at the suppression hearing. After a hearing was held, the trial court denied the motion.
The trial court declared a mistrial during Haywood’s first trial when Haywood’s counsel became ill. In the second trial, the jury convicted Haywood of possessing cocaine base for sale. In a bifurcated proceeding, the trial court found two of the prior conviction allegations not true, and Haywood admitted the remaining two prior conviction allegations and the prior prison term.
The trial court sentenced Haywood to the lower term of three years on the underlying offense, plus three years for each of the prior convictions, and one year for the prior prison term, for a total term of 10 years.
DISCUSSION
Haywood contends the trial court erred prejudicially in denying his request for a removal order for Brewster or allowing Brewster’s suppression hearing testimony to be read into evidence at trial. Alternatively, Haywood contends defense counsel rendered ineffective assistance because he failed to seek a removal order for Brewster prior to the start of trial.
Factual Summary
As part of his no contest plea, Brewster agreed to testify at the suppression hearing. At the suppression hearing, Brewster testified that he lived at the apartment with his girlfriend and their child. No one else lived in the apartment. Brewster further testified that Haywood and Evans had never spent the night at the apartment and, on the day of the arrests, Haywood and Evans had arrived at the apartment approximately five to 10 minutes before Stratton and the other officers.
During Haywood’s first trial, defense counsel called Brewster to testify; Brewster invoked the Fifth Amendment. After Brewster invoked the Fifth Amendment, defense counsel sought to have Brewster’s testimony from the suppression hearing read at trial. There was discussion between the trial court and counsel as to how to obtain a transcript of the hearing. The first trial ended in a mistrial about two days after this discussion.
On the morning of the commencement of the second trial, defense counsel requested that Brewster be deemed unavailable so that his prior testimony from the suppression hearing could be read. The trial court determined there was an insufficient showing that Brewster presently was unavailable, even though he had invoked the Fifth Amendment at the first trial.
Defense counsel next requested that the trial court sign a removal order, requiring that Brewster be brought from state prison to testify. The trial court found no removal order in the file and opined that such a process could take a few weeks. Defense counsel responded that Brewster was in Wasco, a Kern County facility, removal would take only one day, and a prior order for removal was a continuing order. The trial court could find no signed order or any continuing order for Brewster to appear and testify. The trial court, however, did dispatch the bailiff to see if Brewster had been brought to court for the trial.
The trial court went on to state:
“Unavailability means something more than just because we don’t have him here and perhaps some procedures haven’t been followed that I make a finding if [sic] a person’s unavailable. Removal orders are removal orders provided for under the Penal Code.
“And I don’t know -- I’m not saying you didn’t do what you thought you would be able to do, but at this point the Penal Code hasn’t been complied with. [¶] …[¶]
“So at this point all I know is he’s not here, and all I know is there’s no specific Penal Code Section 1324 order in the file directing that he be here. That’s all I know.”
Analysis
Order to produce prisoner
Penal Code section 2621 states that when a material witness who is a prisoner in a state prison must be brought before a trial court, an order for the prisoner’s temporary removal from prison “may” be made by the trial court. The word “may” generally denotes a permissive standard as contrasted with the mandatory nature of the word “shall.” (People v. Failla (2006) 140 Cal.App.4th 1514, 1521.) Penal Code section 1567, which also addresses bringing a prisoner in a state prison before a trial court for any proceeding, uses the discretionary word “may” when referencing the authority of the trial court to issue an order.
Here, the trial judge exercised his discretion to deny the removal order requested on the first day of trial because it was untimely. That is a valid reason for denying a removal order, and we conclude the trial court did not abuse its discretion. (Pen. Code, § 2621; People v. Smith (1985) 38 Cal.3d 945, 960; People v. Dillinger (1968) 268 Cal.App.2d 140, 150.)
Unavailability of witness
Evidence Code section 240 provides that an individual is unavailable if he or she is absent from the hearing and the trial court is unable to compel his or her attendance by its process, or if the person is absent and the proponent has exercised reasonable diligence but has been unable to procure the individual’s attendance by the court’s process. (Id., subd. (a)(4), (5).)
Haywood argues the trial court erred in refusing to declare Brewster to be an unavailable witness pursuant to Evidence Code section 240. Such a finding was necessary to admit Brewster’s suppression hearing testimony into evidence at trial. We disagree with Haywood’s argument for two reasons.
First, there is no evidence that Brewster’s attendance could not be compelled. Haywood simply made no timely attempt to compel Brewster’s presence at the trial. That does not mean that Brewster was unavailable because his attendance could not be compelled. A party must use “‘due diligence’” to compel a witness’s testimony before seeking to declare a witness unavailable. (People v. Cromer (2001) 24 Cal.4th 889, 898.)
Second, Evidence Code section 240, subdivision (a)(1) deems a witness unavailable if the witness refuses to testify based on a privilege. Haywood’s claim that Brewster would invoke the Fifth Amendment if called to testify and that Brewster should therefore be deemed unavailable fails as an unsupported conclusion. Everyone agreed that at the time of the second trial, Brewster had been convicted and sentenced for his involvement in the events of December 10, 2007, and was in the custody of the California Department of Corrections. Brewster presumably had not appealed because the conviction was the result of a plea agreement. If no appeal were pending, Brewster would not be able to invoke the Fifth Amendment because “the privilege expires when the time to file an appeal has passed with no notice of appeal filed.” (People v. Fonseca (1995) 36 Cal.App.4th 631, 637.)
Prejudice from alleged trial court errors
If the trial court erred, and we do not think that it did, any error was not prejudicial.
Where a trial court’s erroneous ruling is not a refusal to allow a defendant to present a defense, as claimed here by Haywood, but rejects only certain evidence concerning the defense, the error is not a constitutional one and is analyzed for prejudice under the standard of People v. Watson (1956) 46 Cal.2d 818. That standard holds that the judgment should be reversed only if it is reasonably probable that the defendant would have obtained a more favorable result absent the error. (People v. Garcia (2008) 160 Cal.App.4th 124, 133.) In Garcia, this court held that the trial court had erred in refusing to issue a removal order, but concluded that the error was not a constitutional one and analyzed it for prejudice under a Watson standard. (Garcia, at pp. 132-133.) As we stated in Garcia:
“A similar rule was applied in People v. Cudjo (1993) 6 Cal.4th 585. There, the trial court erroneously excluded the testimony of a proffered defense witness—who confessed to the crime in a hearing outside the jury’s presence—on the ground that the confession was not credible. [Citation.] The Supreme Court held that this error was not a constitutional one and, therefore, the Watson standard for prejudice applied. [Citation.] Under that standard, the error was harmless in light of the powerful evidence of the defendant’s guilt. [Citation.]” (Id. at p. 133.)
Applying the Watson standard here, any error in refusing to admit Brewster’s suppression hearing testimony was harmless. (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) Evidence of Haywood’s guilt was overwhelming. Cocaine was found in quantities large enough for sale in Haywood’s pants pocket and on the table in front of where he was seated. In addition, $139 was found in Haywood’s pocket, further indicating sales. After being read his rights, Haywood confessed to selling cocaine in order to support his own drug habit.
Ineffective assistance of counsel
Finally, we reject Haywood’s claim that defense counsel rendered ineffective assistance. In order to establish ineffective assistance, Haywood must prove both deficient performance and prejudice as a result of counsel’s deficient performance. (People v. Salcido (2008) 44 Cal.4th 93, 170.) Prejudice is assessed under a Watson standard. (Salcido, at p. 170.) Since we concluded that any error in not admitting Brewster’s testimony was harmless, Haywood cannot establish prejudice resulting from any alleged deficient performance by counsel. Therefore, the ineffective assistance of counsel claim fails. (Ibid.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., GOMES, J.