Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC619871
ELIA, J.Following a jury trial, defendant Javier Leal was found guilty of three counts of assault with a deadly weapon and by force likely to produce great bodily injury in violation of Penal Code section 245, subdivision (a)(1), each involving a different weapon (knife, bottle, and bat or stick), committed during a group beating of a victim. As to each count, the jury found true a criminal street gang enhancement allegation within the meaning of section 186.22, subdivision (b)(1)(B). The jury found not true allegations of personal infliction of great bodily injury within the meaning of section 12022.7, subdivision (a), with regard to counts two (bottle) and four (bat or stick). The jury found defendant not guilty of a fourth count of assault with a deadly weapon, namely a chain, and by force likely to produce great bodily injury in violation of section 245, subdivision (a)(1) (count three).
All further statutory references are to the Penal Code unless otherwise stated.
Section 12022.7, subdivision (a), provides: "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years."
The court sentenced defendant to a total prison term of eight years consisting of a three year principal term on count one (knife) and a consecutive five year enhancement term under section 186.22, subdivision (b)(1)(B). The court imposed concurrent three year terms on the other two aggravated assault convictions and stayed the attached criminal street gang enhancements.
On appeal, defendant challenges the court's finding of due diligence supporting the admission of the preliminary examination testimony of a material witness determined to be unavailable and he raises a related ineffective assistance of counsel claim. Defendant raises a number of claims related to sentencing.
We reverse and remand for limited resentencing.
A. Evidence and Procedural History
Santa Clara County Superior Court case no. 598515 was dismissed for lack of prosecution on February 10, 2006 because the prosecution was not ready to proceed to trial after the court denied the prosecution's motion to admit the transcript of the preliminary hearing testimony of Teresa Rivera at trial because it found the prosecution had not exercised due diligence warranting a finding of witness unavailability under Evidence Code section 240. The prosecution refiled a felony complaint the same day, February 10, 2006.
An information charging defendant with three counts of aggravated assault within the meaning of section 245, subdivision (a)(1), was filed on February 24, 2006. An amended information was filed on April 24, 2006. It charged four counts of aggravated assault within the meaning of section 245, subdivision (a)(1), committed with a knife, bottle, chain, and bat or stick, respectively. A criminal street gang enhancement was alleged as to each count (§ 186.22, subd. (b)(1)) and an enhancement for personal infliction of great bodily injury within the meaning of sections 12022.7, subdivision (a), and 1203, subdivision (e)(3), was alleged as counts two and four (bottle and bat or stick).
The evidence at trial showed the following. On July 1, 2005, Esteban Hernandez met Martin Lopez outside Hernandez's apartment near Alma and together they began walking across the street to Lopez's Ford Ranger truck. A car containing about five people drove up. Someone in the car asked Hernandez in Spanish whether he was a Sureño. Hernandez, who was originally from Mexico, was wearing a white shirt that said "Los Angeles" in blue lettering. The person asked Hernandez, "Do you . . . feel so hot with your pinche shirt . . . [?]" "Pinche" shirt loosely translates to "fucking" shirt. The person told Hernandez to take off the shirt.
Lopez, who was feeling "very confused," began walking toward his truck away from the situation. Four people got out of the car, surrounded Hernandez, and attacked him.
Hernandez was bending over and trying to protect himself with his arms or hands. Hernandez thought three of the people had thrown beer bottles at him. Lopez, who did not see the entire attack because he was heading toward his truck, saw someone throw a beer bottle at Hernandez. Lopez witnessed someone open the car's trunk, get out a bat or wooden stick, and land a blow to Hernandez's neck. The bat was about 18 inches to two feet long and about two or three inches in diameter. Hernandez saw someone with a bat standing by the car during the attack but could not remember being hit with the bat. The person who initially had spoken to Hernandez and who was not defendant, tried to stab Hernandez in the stomach but Hernandez blocked the move with his arm and suffered a stab wound to his left forearm. Hernandez managed to get into Lopez's truck. The assailants and the car fled.
Hernandez was taken to the hospital. The stabbing wound on Hernandez's left forearm required stitches. In addition, a wound to the top of Hernandez's head required five staples to close. His neck was also injured and became swollen. Hernandez sustained a lasting injury to a finger, which he can no longer fully straighten or bend as a result of the stab wound to his arm.
At about 8:30 p.m. on July 1, 2005, San Jose Police Officer Gustavo Perez received a call regarding an assault with deadly weapons on Alma. He spoke with Teresa Rivera, age 60, a resident of the area who was standing near the pickup truck in which the victim was sitting when he arrived. Rivera described to him a small car with five people, four of whom got out of the vehicle and surrounded the victim. The attack occurred on Mastic Street on the east side of the DMV.
According to the officer, Rivera recognized and identified two of the assailants. Rivera was initially hesitant to identity the attackers because the individuals knew her and knew she lived in the area. She eventually told the officer that someone named Pedro had wielded a bat and struck the victim three or four times on the victim's back or upper body and "two of those strikes landed on the victim's head." Rivera stated to the officer that she had seen a person named Javier strike the victim two times with a chain on the victim's upper body. She told the officer that a third individual was holding a knife and a fourth individual struck the victim on the top of the head with a beer bottle and then threw the bottle at the victim. The officer recalled that Rivera told him that a fifth person drove off in the vehicle and Pedro, Javier, and the two other assailants ran off.
Rivera's testimony given at the preliminary examination in December 2005 was read to the jury. She testified that she knew defendant because he used to be her daughter's friend and he was from the neighborhood. In July 2005, she had seen a man beaten by several other men with knives, chains, and bottles on Alma in San Jose. The attackers included defendant and Pedro, whom she had previously seen hanging out together. The group had arrived by car. She saw Pedro holding a bottle in his hand and saw him hit the victim with the bottle. Rivera testified that she saw someone stab the victim with a knife, someone hit the victim with a bat, and someone hit him with a metal chain. She indicated that the knife wrapped in a T-shirt was handed off to Pedro, who ran off. Everything happened quickly and the attackers took off running.
At the preliminary hearing, Rivera had initially denied seeing defendant with a chain and said she did not remember telling police that she saw defendant with a chain in his hands. Rivera admitted to being "very, very scared" to be in court and being afraid of defendant's friends. She later recalled telling police that defendant had a chain during the assault and he had hit the victim with the chain. But she indicated she confused Javier with another younger man, whose name she did not know and who had a lighter complexion but who looked a lot like defendant. She did not know whether Javier or this other person had the chain. Rivera acknowledged that she was nervous. She stated that she was still scared to testify against defendant because she lives in "an ugly area."
Lopez did not see Hernandez being stabbed or being hit with a chain. Hernandez did not see anyone with a chain. Lopez had been in shock during the attack and did not see any of the assailants' faces clearly. When Hernandez was interviewed a week or two later, he identified the person who had stabbed him. But he was unable to identify the other attackers.
San Jose Police Officer Ted Reckas, whom the court recognized as an expert in Hispanic criminal street gangs, testified regarding the Norteño and Sureño gangs in general and the West Side Mob, a Norteño gang, in particular. He stated that Norteño gang members "will perceive any Mexican national as a Sureño because he's from the southern area." Norteño gang members call all Mexican nationals "scraps," meaning individuals on "the bottom of the barrel."
Officer Reckas stated that the West Side Mob's primary activities included homicides, robberies, assaults with deadly weapons, other assaults and batteries, drug trafficking, vandalism, and tagging. The "epicenter" of the West Side Mob's territory was the Alma center and the DMV on Alma. The officer opined, based upon field identifications and other specified evidence, that defendant was "a validated" gang member of the West Side Mob.
Officer Reckas testified that the question whether someone was a Sureño was a common challenge before a gang attack. Someone like Hernandez would be considered a classic "scrap" and "a classic natural target for people like the defendant and Pedro Escada." Officer Reckas explained that the circumstances of a group of young Hispanics approaching a person who looks like Hernandez, who is wearing a shirt with blue lettering saying "Los Angeles," and who is in the area of the Alma center and the DMV, and someone asking whether he is a Sureño, strongly indicates that the questioner is a member of a Norteño gang "from that area, which would be West Side Mob." In his opinion, when a beating with assorted dangerous weapons follows the question whether the person is a Sureño, the attack is being carried out for the benefit of the criminal street gang because the beating enhances the reputation of the gang as being strong, powerful, and violent and the reputation of the individuals committing the assault ands sends "a message out to everybody that if you enter their territory, you will be dealt with; you will be assaulted."
Officer Reckas confirmed that the gangs rely upon witness intimidation to get away with crimes and it was extremely common for witnesses to retract identifications. He described in detail Rivera's fear about coming into court to testify at the preliminary hearing and apparent intimidation of Rivera in court by defendant's brothers, both associates of the West Side Mob. She reluctantly testified at the preliminary hearing but she was afraid to testify at trial and had avoided Officer Reckas's subsequent attempts to subpoena her for trial.
B. Unavailability of Material Witness
1. Admission of Former Testimony of Witness Determined to be Unavailable
Defendant asserts that admission of Rivera's preliminary hearing testimony at trial violated his right to confrontation under the Sixth Amendment to the United States Constitution because "the prosecution did not engage in a diligent, good faith effort to procure Rivera's testimony at trial." He maintains that the admission of Rivera's preliminary hearing testimony violated both Evidence Code section 240, defining the phrase "unavailable as a witness," and the Sixth Amendment's confrontation clause and is reversible error under both People v. Watson (1956) 46 Cal.2d 818, 836 and Chapman v. California (1967) 386 U.S. 18.
"The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution's witnesses. (U.S. Const., 6th Amend.; Cal. Const. art. I, § 15.) 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.) "In California, the exception to the confrontation right for prior recorded testimony is codified in section 1291, subdivision (a) . . . ." (Id. at p. 898.)
Evidence Code section 1291 states an exception to California's hearsay rule, which bars admission of "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200.) Evidence Code section 1291, subdivision (a), provides: "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." "Former testimony" includes "given under oath" in "[a]nother action or in a former hearing or trial of the same action." (Evid. Code, § 1290, subd. (a).) Under Evidence Code section 240, with an exception not here applicable, a hearsay 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." (Evid. Code, § 240, subd. (a)(5); see People v. Cromer, supra, 24 Cal.4th at p. 898 ["reasonable diligence" under section 240 often referred to as "due diligence"].)
In People v. Cromer, supra, 24 Cal.4th 889, the California Supreme Court established that reviewing courts must apply an independent or a de novo standard of review, rather than the more deferential abuse of discretion standard, when evaluating a trial court's due diligence determination under Evidence Code section 240, subdivision (a)(5). (Id. at pp. 892-893.) The Supreme Court in Cromer directed appellate courts to "independently review a trial court's determination that the prosecution's failed efforts to locate an absent witness are sufficient to justify an exception to the defendant's constitutionally guaranteed right of confrontation at trial" (id. at p. 901, fn. omitted) and disapproved specified decisions to the contrary. (Id. at p. 901, fn. 3.) The court explained that the trial court determines the historical events where there are disputed factual issues, but an appellate court "make[s] the predominantly legal determination that those facts do or do not demonstrate prosecutorial due diligence in locating the absent witness." (Id. at p. 902.)
The Cromer court stated: " '[D]ue 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]." (24 Cal.4th at p. 904.)
The United States Supreme Court declared in Ohio v. Roberts (1980) 448 U.S. 56, 74 [100 S.Ct. 2531] (overruled on other grounds in Crawford v. Washington (2004) 541 U.S. 36, 67 [124 S.Ct. 1354]): "The basic litmus of Sixth Amendment unavailability is established: '[A] witness is not "unavailable" for purposes of . . . the exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.' [Citations.] [¶] Although it might be said that the Court's prior cases provide no further refinement of this statement of the rule, certain general propositions safely emerge. The law does not require the doing of a futile act. Thus, if no possibility of procuring the witness exists (as, for example, the witness' intervening death), 'good faith' demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. 'The lengths to which the prosecution must go to produce a witness . . . is a question of reasonableness.' [Citation.] The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness." (See Barber v. Page (1968) 390 U.S. 719, 724-725 [88 S.Ct. 1318] ["[A] witness is not 'unavailable' for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial"].)
In Crawford, the United States Supreme Court rejected any general reliability exception to the constitutional right of confrontation, which abrogated the determination in Ohio v. Roberts, supra, 448 U.S. 56 that hearsay statements of a declarant not present for cross-examination at trial are admissible at trial if they bear adequate "indicia of reliability," that is they fall within a "firmly rooted hearsay exception" or reflect "particularized guarantees of trustworthiness" (id. at p. 66). (Crawford v. Washington, supra, 541 U.S. at pp. 62-69.) Crawford declared that, in general, "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." (Id. at pp. 68-69.) The court acknowledged the exception for unavailable witnesses: "Where testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." (Id. at p. 68.) Testimonial evidence certainly includes "prior testimony at a preliminary hearing." (Ibid.) Defendant has not claimed in this appeal that the preliminary hearing testimony was inadmissible because he lacked an adequate prior opportunity to cross-examine Rivera.
The trial court's determination of insufficient prosecutorial diligence (see Evid. Code, § 240) and its dismissal of the case for lack of prosecution (see § 1382) in the first prosecution does not necessarily mean, however, that the prosecutor failed to exercise due diligence to secure the same witness's attendance at the trial in this case, the second prosecution. We must examine the facts adduced at the time of the April 18, 2006 hearing on the prosecutor's pretrial motion under Evidence Code section 240.
Victor Reyes, a senior advocate for the Victims of Crime Program in Santa Clara County, testified at the April 18, 2006 hearing that he had been in communication with witness Rivera for several months until approximately the week before the April 18, 2006 hearing. The senior advocate testified that Rivera lived at a particular San Jose address and was still residing there as of the week prior to the hearing. Rivera had told him that she did not want to testify and she was afraid to testify because of people in the neighborhood. Rivera had indicated that she was not going to be around and was planning on avoiding attempts to serve her. She was leaving her residence early in the morning and returning late in the evenings.
San Jose Police Officer Ted Reckas testified that he was the investigating officer in the present case. He acknowledged that he served Rivera for the preliminary hearing held on December 9, 2005 and that a body attachment warrant had issued on December 7, 2005. Officer Reckas indicated that he had gone out and looked for her and, at some point, he had persuaded her to come to court and she was transported in a law enforcement vehicle. She was hostile and scared about testifying at the hearing. The police brought her back for the second day of the preliminary hearing as well.
Prior to February 10, 2006, the date of dismissal of the first prosecution, Officer Reckas had gone to Rivera's San Jose home approximately five to seven times in an effort to locate her after he learned that she had gone to Mexico to avoid testifying at trial. He located her family members in Mexico, who indicated she had been in Mexico, and he made efforts to contact her there. Roughly within the week prior to the scheduled trial date in the first prosecution, Officer Reckas had a Spanish speaker from his police unit call Rivera at a telephone number he obtained for her in Mexico.
After the first prosecution was dismissed for lack of prosecution on February 10, 2006 and a new information was filed on February 24, 2006, Officer Reckas attempted to subpoena Rivera for trial in the second prosecution. Officer Reckas received the trial subpoena for Rivera from the district attorney's office on March 10, 2006. The same day at 7:00 a.m., the officer attempted to serve Rivera at her San Jose residence on Plum Street but he was unable to make contact with anybody there. On March 14, 2006, he went to the residence at 6:00 a.m. but was unable to get any response. He looked in the windows to the extent he could but saw no one. He knocked on the neighbors' door and asked whether they had seen Rivera but obtained no information.
Officer Reckas repeatedly returned to Rivera's residence without making contact with Rivera. He went to the residence at 1:30 p.m. on March 16, 2006, 5:30 a.m. on March 17, 2006, and at 11:00 a.m. on March 22, 2006. On the March 22, 2006 visit he was able to speak with an upstairs tenant who informed him that Rivera still lived there and she had been seen recently. The officer returned the next morning, March 23, 2006, at 7:30 a.m. and March 27, 2006 at 10:00 p.m. but was unable to get any response. He went back again at 5:15 a.m. on March 29, 2006, at 11 p.m. on March 30, 2006. On each of the visits, Officer Reckas knocked on the door and windows. On all of his night time visits, the kitchen light was on.
Prior to the trial date in the first prosecution, Officer Reckas had spoken with Rivera's husband at their residence. But during his March 2006 attempts to serve the subpoena in the second prosecution, the officer had not seen Rivera's husband. Although her husband normally slept on the couch, the officer did not see bedding, pillows, or any other indication that someone was sleeping on the couch when he looked in the window. Rivera's husband had no established place of employment and took "pick-up jobs."
The officer made unsuccessful attempts to contact Rivera at her residence on April 5, 2006 at 4:30 a.m., April 10, 2006 at 11:00 p.m., April 11, 2006 at 9:45 p.m, April 12, 2006 at 1:45 a.m., April 17, 2006 at 11:00 p.m. No one answered the door or responded to his knocks on the windows. Rivera did not work and she had no place of employment at which to contact her.
Officer Reckas telephoned Rivera's residence every time he visited from outside the apartment but no one answered. At times, he left his business card at Rivera's residence and found the card gone when he returned. Officer Reckas asked neighbors to call when they saw Rivera at home but he never received a call. Victor Reyes contacted Officer Reckas at least two or three times to let the officer know he had just received a call from Rivera. Officer Reckas also unsuccessfully tried to contact Rivera's daughter, who resided in the San Jose area. The officer had previously spoken with the daughter when trying to locate Rivera for the trial in the first prosecution. During the two weeks before the hearing, Officer Reckas had uniformed beat officers working the swing shift go by Rivera's residence and knock on the door. But the officer did not try to call the phone number in Mexico that he had previously obtained. He did not check to see if the telephone listing was still in her name. He did not talk to Rivera's landlord or check the utilities to her apartment.
Defendant argues that the officer's actions of "knocking on the door of the same empty apartment day after day and night after night" were not untiring efforts of a substantial character. The record does not show, however, that Rivera's apartment was empty throughout March and April 2006. There was evidence supporting a finding that Rivera had returned from Mexico to her San Jose residence. An upstairs tenant told Officer Reckas on March 22, 2006 that Rivera was still living there and had been seen recently and a Senior Advocate for the Victims of Crime Program had been in communication with Rivera, he had spoken with her during the week prior to the April 18, 2006 hearing, he knew she was still living in the same place, and had been told by Rivera that she was deliberately avoiding service of the subpoena by leaving early and returning late to her home.
Officer Reckas testified at the hearing on February 10, 2006 in the first prosecution that the San Jose Police Department had received a phone call from Rivera that morning. She had spoken with a Spanish-speaking officer and indicated she would not return from Mexico for another two weeks.
The record does not demonstrate that the prosecution knew or should have known that Rivera was likely to leave the United States and temporarily go to Mexico following the preliminary hearing on December 8, 2005. She attended that preliminary hearing and testified, albeit reluctantly, and the prosecution knew where she lived. In any event, Officer Reckas had no information suggesting that Rivera had remained in Mexico or temporarily returned to Mexico during the period he was trying to subpoena her in March and April 2006. Rather, it appeared Rivera had returned to San Jose from Mexico and she was deliberately avoiding Officer Reckas's attempts to personally serve her with the trial subpoena in the refiled case.
"The prosecution is not required 'to keep "periodic tabs" on every material witness in a criminal case . . . .' (People v. Hovey (1988) 44 Cal.3d 543, 564 . . . .) 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. (Ibid., citing People v. Louis (1986) 42 Cal.3d 969 . . . .)" (People v. Wilson (2005) 36 Cal.4th 309, 342.)
Defendant complains that the police did not attempt to conduct any Internet searches, access "databases not available to the general public," or "explore possible immigration-related leads." He suggests that the court could have ordered Rivera, impliedly when she appeared at the preliminary examination, to appear at the arraignment, and then, when she appeared at the arraignment, the court could have ordered her to appear for trial. He further proposes that the court "could have ordered her to post security for her appearance pursuant to Penal Code section 1332, subdivision (a) and, if she refused to post security, it could have ordered her to be taken into custody" under section 1332, subdivision (b).
It is pure speculation to suppose that the prosecution could have, pursuant to section 1332, successfully sought an order for a written undertaking, which would have been subject to forfeiture upon her failure to appear, or an order for her detention, which would have been subject to an automatic, initial two-day review and 10-day reviews thereafter, if she refused to comply with the order for a written undertaking. A witness's constitutional right not to be "unreasonably detained" (Cal. Const., art. I, § 10) "requires procedural safeguards allowing the interests of the witness to be heard," including a right to notice of the basis for any detention, "counsel, either retained or appointed," and the right to present evidence under section 1332. (In re Francisco M. (2001) 86 Cal.App.4th 1061, 1075-1076.) Even presuming adequate notice of a section 1332 proceeding could have been provided to Rivera, it is unclear how Rivera would have been detained if personal service of a subpoena could not be accomplished. In any event, if the prosecution exercised reasonable diligence to procure Rivera's attendance, it makes no difference that additional efforts might have been made or other lines of inquiry might have been pursued. (See People v. Wilson, supra, 36 Cal.4th at p. 343; People v. Cummings (1993) 4 Cal.4th 1233, 1298.)
Section 1332 provides: "(a) Notwithstanding the provisions of Sections 878 to 883, inclusive, when the court is satisfied, by proof on oath, that there is good cause to believe that any material witness for the prosecution or defense . . . will not appear and testify unless security is required, at any proceeding in connection with any criminal prosecution . . ., the court may order the witness to enter into a written undertaking to the effect that he or she will appear and testify at the time and place ordered by the court or that he or she will forfeit an amount the court deems proper. [¶] (b) If the witness required to enter into an undertaking to appear and testify, either with or without sureties, refuses compliance with the order for that purpose, the court may commit the witness, if an adult, to the custody of the sheriff . . . until the witness complies or is legally discharged. [¶] (c) When a person is committed pursuant to this section, he or she is entitled to an automatic review of the order requiring a written undertaking and the order committing the person, by a judge or magistrate having jurisdiction over the offense other than the one who issued the order. This review shall be held not later than two days from the time of the original order of commitment. [¶] (d) If it is determined that the witness must remain in custody, the witness is entitled to a review of that order after 10 days. [¶] (e) When a witness has entered into an undertaking to appear, upon his or her failure to do so the undertaking is forfeited in the same manner as undertakings of bail."
Between March 10, 2006 and April 18, 2006, Officer Reckas made numerous fruitless attempts to serve Rivera at her residence at various times, including very early in the morning and late at night when she could be expected to be at home. Rivera was a recalcitrant witness whose residence was known but who was deliberately seeking to avoid service. Officer Reckas went to Rivera's home 14 times in the little over a month preceding the April 18, 2006 hearing and tried to contact Rivera's daughter to no avail. The prosecution had no leads regarding her whereabouts that were ignored.
Without doubt, Rivera's testimony was essential to the prosecution's case against defendant because she was the only witness able to identify defendant as a participant in the assault. But the prosecutorial efforts to subpoena Rivera were commensurate with the criticalness of her testimony. Officer Reckas exerted sustained and concerted efforts to personally serve the subpoena on Rivera for more than a month up and through the night before the hearing on April 18, 2006.
Assuming without deciding that the constitutional claim was not waived by the failure to raise it below (but see Evid.Code, § 353; People v. Seijas (2005) 36 Cal.4th 291, 302; People v. Carter (2003) 30 Cal.4th 1166, 1196, fn. 6), we conclude, based upon our independent review, that the prosecution exerted diligent, good-faith efforts to obtain Rivera's presence at trial. The finding of witness unavailability did not violate Evidence Code section 240 or the Sixth Amendment's confrontation clause and, therefore, the finding does not require reversal.
2. Ineffective Assistance of Counsel
Defendant argues that his counsel rendered ineffective assistance of counsel by failing to seek writ review of the dismissal of the first information, which was dismissed without prejudice by the court on February 10, 2006 for lack of prosecution (see § 1382), after the court found the prosecutor had failed to exercise due diligence to procure Rivera's attendance by the court's process (see Evid. Code, § 240, subd. (a)(5)). Defendant tells us that a panel of prospective jurors had been sworn and jury selection had been completed in the first prosecution and, therefore, defendant had been brought to trial within the meaning of section 1382 and dismissal pursuant to that section was not warranted since witness Rivera was not unavailable within the meaning of Evidence Code section 240.
Defendant complains that the dismissal amounted to a de facto continuance allowing extra time to locate the witness even though the prosecution was not entitled to a continuance. Defendant suggests that the People should have been forced to proceed to trial without Rivera as a witness in the first prosecution, which presumably would have resulted in the prosecutor dismissing the case with prejudice since defendant could not have been convicted without Rivera's testimony. In addition, defendant also asserts that his counsel rendered ineffective assistance by failing to oppose relitigation of the issue of the prosecutor's diligence in attempting to procure Rivera's attendance at trial in the second prosecution. He states that the ineffective assistance of counsel was "clearly prejudicial," presumably because this case proceeded to trial, Rivera's preliminary hearing testimony connecting defendant to the assaults was admitted, and defendant was convicted.
At the hearing on February 10, 2006 in the first prosecution, the court indicated that prospective jurors and alternate jurors were waiting downstairs. After the denial of the motion to admit the preliminary hearing transcript because Rivera was an unavailable witness, the prosecutor informed the court that the People could not proceed to trial without either the witness or the preliminary hearing transcript. The court thereupon dismissed for lack of prosecution. Defendant has cited no authority for the proposition that the court was required to force the prosecutor to proceed to trial without an essential witness.
"To implement [the right to a speedy trial], our Legislature enacted section 1382, which requires dismissal when a defendant is not 'brought to trial' within the statutorily prescribed period after the filing of the information. (Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 776 . . . .) A defendant is 'brought to trial' under section 1382 when the court has 'committed its resources to the trial, and the parties must be ready to proceed and a panel of prospective jurors must be summoned and sworn.' (Rhinehart v. Municipal Court, supra, at p. 780.)" (People v. Lewis (2001) 25 Cal.4th 610, 629.) "Even if voir dire is not commenced, a panel of prospective jurors must be summoned and sworn in order for an accused to be 'brought to trial.' That stage of the proceedings is evidence that, barring a negotiated plea or a dismissal under section 1385, a trial will occur. However, swearing the panel, by itself, is not sufficient. The trial court must also comply with the other requirements." (Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 780, fn. 12.) Thus, where a jury is impaneled solely to avoid a dismissal under section 1382 but the other requirements are not met, for example a court is not ready to try the case to conclusion, a case is not "brought to trial" within the meaning of section 1382. (Id. at p. 780.)
The record before us does not show that defendant was "brought to trial" under the applicable test. The mere administration of the oath of truthfulness to all prospective jurors at the beginning of jury selection does not necessarily mean a defendant has been brought to trial within the meaning of section 1382. On February 10, 2006, the prosecution was clearly not ready to proceed to trial in the first prosecution against defendant without either Rivera as a live witness or her testimony from the preliminary hearing in the first prosecution. (Cf. In re Chuong D. (2006) 135 Cal.App.4th 1303, 1310-1311 [prosecutor not actually ready to try case because only prosecution witness able tie Chuong to assault unavailable to testify].)
Code of Civil Procedure section 232 mandates the administration of two different juror oaths: "(a) Prior to the examination of prospective trial jurors in the panel assigned for voir dire, the following perjury acknowledgement and agreement shall be obtained from the panel, which shall be acknowledged by the prospective jurors with the statement 'I do': [¶] 'Do you, and each of you, understand and agree that you will accurately and truthfully answer, under penalty of perjury, all questions propounded to you concerning your qualifications and competency to serve as a trial juror in the matter pending before this court; and that failure to do so may subject you to criminal prosecution.' [¶] (b) As soon as the selection of the trial jury is completed, the following acknowledgment and agreement shall be obtained from the trial jurors, which shall be acknowledged by the statement 'I do': [¶] 'Do you and each of you understand and agree that you will well and truly try the cause now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court.' " A criminal jury trial does not commence for purposes of the Double Jeopardy Clause until the jury is empaneled and sworn. (Serfass v. U.S. (1975) 420 U.S. 377, 388 [95 S.Ct. 1055]; see Crist v. Bretz (1978) 437 U.S. 28, 38 [98 S.Ct. 2156] [federal rule that jeopardy attaches when the jury is empaneled and sworn applicable to states through the Fourteenth Amendment].) Defendant entered a plea of not guilty and did not invoke the constitutional guarantee against double jeopardy (U.S. Const., amend. 5). In addition, defendant in his opening brief states, "To avoid jeopardy attaching, the parties agreed that the jury would not be sworn until the court had a chance to conduct a hearing on February 10, 2006 on issues related to the potentially absent witness."
Moreover, a dismissal for want of prosecution is not a de facto continuance since it terminates the action. (See § 1384 [upon dismissal, defendant must be discharged from custody and his bail exonerated].) "Dismissal [under section 1382] does not necessarily mean, however, that the defendant is immune from further prosecution. [Citations.]" (Townsend v. Superior Court (1975) 15 Cal.3d 774, 780.) "[One] order for the dismissal of a felony action made before jeopardy has attached is not a bar to further prosecution (Pen. Code, § 1387), and upon refiling the 60-day time period within which to bring defendant to trial (Pen. Code, § 1382, subd. (2)), starts anew [citation])." (Bellizzi v. Superior Court (1974) 12 Cal.3d 33, 37, fn. 4; see §§ 1387 [two-dismissal rule], 1387.1 [additional opportunity to refile charges in specified circumstances], see also § 1388 [defendant must be notified of refiling and rearraignment].) A re-filed case is not a continuation of the previously dismissed case. (See Paredes v. Superior Court (1999) 77 Cal.App.4th 24, 28-29.) The question of the prosecutor's diligence in procuring Rivera's attendance at trial in the present case by the court's process was an entirely independent inquiry from the question of the prosecutor's diligence in the dismissed case and the determination of reasonable diligence in this case cannot be regarded as merely a relitigation of the diligence issue decided in the dismissed case.
Defendant has failed to demonstrate that his defense counsel rendered constitutionally ineffective assistance. He neither showed that counsel's performance was deficient because it "fell below an objective standard of reasonableness . . . under prevailing professional norms" (Strickland v. Washington (1984) 466 U.S. 668, 688 [104 S.Ct. 2052]) nor that counsel's actions resulted in prejudice in this case, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.)
C. Sentencing
1. Criminal Street Gang Enhancement
Defendant asserted in his opening brief, and the People conceded, that the trial court erred by imposing a five-year enhancement term pursuant to section 186.22, subdivision (b)(1)(B), since none of the assaults of which he was convicted was a "serious felony" within the meaning of section 1192.7, subdivision (c). In his reply brief, defendant withdrew this argument, which he believed was "premised on a misreading" of section 1192.7, subdivision (c), which includes an assault with a deadly weapon within the definition of "serious felony." Nevertheless, we review the original contention because "in a 'narrow class' of cases the trial court's omission or erroneous imposition of a particular sentence or term required by law results in an 'unauthorized' sentence, which is subject to correction by the reviewing court despite the absence of an objection by either party in the trial court. [Citations.]" (In re Sheena K. (2007) 40 Cal.4th 875, 882, fn. 3; see People v. Smith (2001) 24 Cal.4th 849, 852.)
Section 186.22, subdivision (b)(1), provides in pertinent part: "[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: [¶] (A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court's discretion. [¶] (B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years."
The crime of assault "with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury" (§ 245, subd. (a)(1)) is not specifically listed in section 1192.7, subdivision (c). "Personal use" is not a necessary element of an assault in violation of section 245, subdivision (a)(1). (See People v. Equarte (1986) 42 Cal.3d 456, 466.) But " 'any felony' -- including assault with a deadly weapon -- may be found to constitute a serious felony if the prosecution properly pleads and proves that defendant personally used a deadly or dangerous weapon in the commission of the offense" within the meaning of section 1192.7, subdivision (c)(23). (Id. at p. 465.) Similarly, an assault in violation of section 245, subdivision (a)(1), may be a serious felony within the meaning of section 1192.7, subdivision (c), if it is pleaded and proved that the defendant personally inflicted great bodily injury upon any person other than an accomplice (§ 1192.7, subd. (c)(8)).
"Serious felony" within the meaning of section 1192.7, subdivision (c), also includes "any felony in which the defendant personally uses a firearm" (§ 1192.7, subd. (c)(8)), "assault with intent to commit rape or robbery" (§ 1192.7, subd. (c)(10)), "assault with a deadly weapon or instrument on a peace officer" (§ 1192.7, subd. (c)(11)), "assault by a life prisoner on a noninmate" (§ 1192.7, subd. (c)(12)), "assault with a deadly weapon by an inmate" (§ 1192.7, subd. (c)(13)), "assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220" (§ 1192.7, subd. (c)(29)), "assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245" (§ 1192.7, subd. (c)(31)), and "assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Sections 245.2, 245.3, or 245.5" (§ 1192.7, subd. (c)(32)) but these provisions are inapplicable to this case.
As to each of the three assaults in violation of section 245, subdivision (a)(1) (counts one [knife], two [bottle], and four [bat or stick]), the jury found true that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members, within the meaning of section 186.22, subdivision (b)(1)(B). With regard to the assault with a knife charged in count one, there was no special allegation to establish that the offense was a "serious felony" within the meaning of section 1192.7, subdivision (c). There was no allegation or finding that defendant personally inflicted great bodily injury (§ 1192.7, subd. (c)(8)) or that defendant personally used a dangerous or deadly weapon (§ 1192.7, subd. (c)(23)) in committing the assault charged in count one, which, if found true, would have authorized an additional term of five years under section 186.22, subdivision (b)(1)(B). As to counts two and four, there were special allegations of personal infliction of great bodily injury within the meaning of section 12022.7, subdivision (a), but the jury found those allegations not true.
It is true that section 1192.7, subdivision (c)(28), makes "any felony offense, which would also constitute a felony violation of Section 186.22," a serious felony. In People v. Briceno (2004) 34 Cal.4th 451, 459, the California Supreme Court interpreted this statutory language to include "within its ambit any felony offense committed for the benefit of a criminal street gang under the section 186.22(b)(1) gang sentence enhancement." But the court clarified that "any felony that is gang related is not treated as a serious felony in the current proceeding, giving effect to section 186.22(b)(1)(A). [Citation.]" (Id. at p. 465, italics added.) It stated that this interpretation "avoids the impermissible bootstrapping that would occur if any felony that is gang related is also deemed serious in the current proceeding." (Ibid.)
We conclude that the trial court imposed an unauthorized sentence pursuant to section 186.22, subdivision (b)(1)(B). Upon remand, the trial court may impose gang enhancements pursuant to section 186.22, subdivision (b)(1)(A), the lesser included enhancement, based upon the jury's true findings. (See People v. Bautista (2005) 125 Cal.App.4th 646, 657 [reversing enhancement term imposed under section 186.22, subdivision (b)(1)(B) and remanding for resentencing pursuant to section 186.22, subdivision (b)(1)(A)].)
2. Ineligibility for Probation
Defendant argues that the trial court improperly found defendant ineligible for probation under section 1203, subdivision (e)(2), and, therefore, the judgment must be reversed. Section 1203, subdivision (e), provides: "Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: . . . [¶] (2) Any person who used, or attempted to use, a deadly weapon upon a human being in connection with the perpetration of the crime of which he or she has been convicted." It has been held that section 1203, subdivision (e)(2), requires personal use of a deadly weapon. (People v. Alvarez (2002) 95 Cal.App.4th 403, 408.)
The probation report indicated that defendant's eligibility for sentencing was limited pursuant to section 1203, subdivision (e)(2), and he was ineligible for probation absent a finding that the case was unusual and the probation officer did not recommend such a finding. At the sentencing hearing, the court stated that it had considered the probation report. Before sentencing defendant to prison, the court observed that the assault had been vicious and the victim had been seriously injured. The court told defendant after imposition of sentence that, even if the grant of probation were not restricted, the court "would not have granted you probation because of the great danger to the community until you've had some of the correction and rehabilitation that the state has to offer."
On this record, defendant's claim of reversible sentencing error must fail. Given the court's express statement that it would not have granted probation regardless of section 1203, subdivision (e)(2), we cannot conclude it is reasonably probable that a result more favorable to defendant would have been reached had the court found the provision inapplicable. (See Cal. Const., art. VI, § 13; People v. Watson, supra, 46 Cal.2d 818, 836.)
Defendant's related ineffective assistance of counsel claim must also fail based upon the court's comments. The legal standard for such a claim "encompasses both a deficient performance prong and a prejudice prong. [Citations.]" (People v. Gurule (2002) 28 Cal.4th 557, 627.) In addition to showing that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms" (Strickland v. Washington, supra, 466 U.S. at p. 688), a defendant must "affirmatively prove prejudice" by showing "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at pp. 693-694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.) Thus, even assuming defense counsel provided ineffective assistance by not arguing at the time of sentencing that defendant was not presumptively ineligible for probation, defendant cannot establish prejudice on this record given the court's expressed unwillingness to grant probation to defendant regardless of section 1203, subdivision (e)(2).
3. Section 654
Section 654, subdivision (a), provides: "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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." "Ordinarily, a section 654 claim is not waived by failing to object below. '[T]he waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.' (People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3 . . . .) . . . This exception is not required by the language of section 654, but rather by case law holding that a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654. (See People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17 . . . .)" (People v. Hester (2000) 22 Cal.4th 290, 295.)
"Few if any crimes, however, are the result of a single physical act. 'Section 654 has been applied not only where there was but one "act" in the ordinary sense . . . but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.' [Citation.] [¶] Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State (1960) 55 Cal.2d 11, 19.) But a "course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]" (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11; cf. e.g. People v. Gaio (2000) 81 Cal.App.4th 919, 935 [three bribes occurring months apart separately punishable].)
Defendant asserts that punishment on counts two and four should have been stayed under section 654 because there was a single victim and defendant "harbored a single criminal intent toward the victim." The People agree that punishment should be stayed on count two (bottle) but, citing People v. Coleman (1989) 48 Cal.3d 112, 162, the People assert that defendant may be punished for count four (bat or stick) in addition to count one (knife) because "the final assault, the attempt to stab [the victim] in the stomach was a gratuitous act of extreme violence apparently intended to eliminate a witness."
In Coleman, supra, 48 Cal.3d 112, the defendant contended that section 654 precluded him from being punished for "both the assault with intent to murder Karen (count five) and the robbery of the same victim (count seven)." (Id. at p. 162.) The California Supreme Court rejected this argument, stating: "There is ample evidence to support the trial court's implicit finding that defendant's intent and objective in assaulting Karen, by stabbing her, was separate from, rather than incidental to, his intent and objective in committing the robbery. Prior to the assault, defendant had essentially completed the robbery by compelling Karen to assist and not interfere with his gathering the valuables and preparing for flight. Ms. Neidig then entered the kitchen, and defendant killed her with the shotgun. He next ordered Karen to lie down and stabbed her in the back. The trial court could properly conclude that defendant committed the assault with the intent and objective of preventing the victim from sounding the alarm about the murder, and that this intent and this objective were separate from, not incidental to, the robbery. [Citations.]" (Id. at pp. 162-163.)
In this case, a careful examination of the evidence does not reveal any basis for concluding that defendant had a separate intent or objective with regard to any assaultive conduct of which he was convicted. All three assaults were done with the apparent intent of and objective of inflicting injury upon the victim during a relatively brief, frenzied gang attack. In addition, defendant's liability for the assaults as an aider and abettor rather than necessarily as the direct perpetrator in no way affects our section 654 analysis. Under California law, direct perpetrators and aiders and abettors are considered principals in the commission of a crime. (See §§ 31, 971; People v. Calhoun (2007) 40 Cal.4th 398.) The record does not support the inference that the course of conduct was divisible based upon intent or objective. (But cf. People v. Trotter (1992) 7 Cal.App.4th 363, 368 [three shots fired from vehicle in quick succession at pursuing police officers separated by sufficient time to allow reflection and "each shot evinced a separate intent to do violence"].) We conclude that the concurrent prison terms imposed on counts two and four must be stayed pursuant to section 654. (See In re Wright (1967) 65 Cal.2d 650, 652, 655.)
The judgment is reversed and the matter is remanded for resentencing. Upon remand, the trial court shall exercise its discretion under section 186.22, subdivision (b)(1)(A), to decide whether to impose an additional enhancement term of two, three, or four years as to each count and stay execution of sentence on counts two and four pursuant to section 654.
WE CONCUR: RUSHING, P. J., PREMO, J.