Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. PA064824 Cynthia L. Ulfig, Judge.
Vanessa Place, 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, Joseph P. Lee and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
MALLANO, P. J.
Defendant Kristine McFall appeals from the judgment entered following a jury trial in which she was convicted of two counts of pimping, two counts of false imprisonment by violence, and a single count of pandering by procuring, with a finding that a principal was armed with a firearm as to one count. Defendant contends that her federal constitutional right to confront witnesses was violated by the admission of one victim’s preliminary hearing testimony at trial. We affirm.
BACKGROUND
For about three and one-half weeks in May and early June of 2009, Hilda M. lived in a house with defendant, several other young women, and “Romeo.” Chelsea M. lived there for a few days. Men arrived at the house in response to an Internet ad and paid defendant for massages with “a happy ending, ” which were provided by Hilda, Chelsea, or one of the other women who lived in the house. Hilda went home twice while she was living at the Burnett Avenue house, but each time, defendant phoned her and threatened to hurt her family if she did not return to the house. On the night of June 7, 2009, Romeo sent Hilda and Chelsea out to work the streets as prostitutes. One of Chelsea’s customers agreed to drive her home because she did not want to return to the Burnett Avenue house. When Hilda arrived back at the house without Chelsea, defendant and Romeo demanded that Hilda tell them where Chelsea was. She refused until defendant brought Romeo’s friend “Cuz” downstairs with a shotgun. Cuz pointed the gun at Hilda’s head, and she revealed Chelsea’s location at a motel. Defendant and Romeo burst into the motel room and ordered Chelsea to accompany them. Chelsea complied out of fear, and they returned to the Burnett Avenue house. There, defendant punched Chelsea three or four times in the stomach and face. Hilda called 911, and the police came to the house.
Defendant testified that Hilda rented a room in the house for about six weeks and worked as a masseuse. Chelsea stayed in the house for about two weeks, but did not give massages. The massages were not supposed to involve any sexual activity, and defendant informed the customers of that policy. Defendant admitted that the Internet ads she posted may have inadvertently suggested sexual activity. The money collected from customers was placed in a coffee can to which everyone in the house had access. Hilda was free to come and go as she wished. On the night of June 7, 2009, Chelsea and Hilda went out on their own initiative to work as prostitutes. Hilda phoned defendant in the early morning hours and asked for a ride home. Defendant and Romeo picked up Hilda, who also wanted them to pick up Chelsea and told them where Chelsea was. They returned to the house and picked up Stacey, who also lived in the Burnett Avenue house, and went to the motel. Stacey forced her way into the room and ordered Chelsea to get in the car. Chelsea complied, and they all went back to the house, where Stacey yelled at Chelsea and Hilda. Defendant heard Romeo say, “Don’t hit her, ” but defendant did not see what happened. Defendant never saw a gun in the house. Defendant struck Chelsea once with an open hand after Chelsea spat in defendant’s face.
The jury convicted defendant of two counts of pimping (Pen. Code, § 266h, subd. (a); all further statutory references pertain to the Penal Code unless otherwise specified), two counts of false imprisonment by violence (§ 236), and a single count of pandering by procuring (§ 266i, subd. (a)(1)). It found that in the commission of one of the false imprisonments, a principal was armed with a firearm. (§ 12022, subd. (a)(1).) The jury could not reach a verdict on two counts of kidnapping. The court sentenced defendant to four years in prison.
DISCUSSION
The parties stipulated that Chelsea was legally unavailable to testify at trial. Her preliminary hearing testimony was then read into the record at trial, without objection.
Citing Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354] (Crawford), defendant now contends that the admission of Chelsea’s preliminary hearing testimony violated her federal constitutional right to confront the witnesses against her. She argues that she did not have “a constitutionally meaningful opportunity to cross-examine” Chelsea at the preliminary hearing.
Defendant forfeited her claim by failing to raise a confrontation objection to the admission of Chelsea’s preliminary hearing testimony. (People v. Williams (2008) 43 Cal.4th 584, 626.) Indeed, defendant did not object to the admission of the preliminary hearing testimony on any ground.
Although defendants generally have a constitutional right to confront their accusers at trial, this right is not absolute, and in appropriate cases it may yield to other legitimate interests. (People v. Carter (2005) 36 Cal.4th 1114, 1172 (Carter).) “An exception to the confrontation requirement exists where the witness is unavailable, has given testimony at a previous judicial proceeding against the same defendant, and was subject to cross-examination by that defendant.” (Ibid.) “Further, the federal Constitution guarantees an opportunity for effective cross-examination, not a cross-examination that is as effective as a defendant might prefer.” (Ibid.)
Evidence Code section 1291 permits a witness’s prior testimony to be used against a criminal defendant at trial only when the witness is unavailable and the defendant “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” trial. (Evid. Code, § 1291, subd. (a)(2).) When the requirements of Evidence Code section 1291 are met, admitting the witness’s former testimony does not violate a defendant’s federal constitutional right of confrontation. (People v. Herrera (2010) 49 Cal.4th 613, 621 (Herrera).)
The California Supreme Court has repeatedly rejected contentions that a defendant’s opportunity to cross-examine an unavailable witness at the preliminary hearing was inadequate, after Crawford, to permit admission of the former testimony at trial (Herrera, supra, 49 Cal.4th at pp. 621–622; People v. Valencia (2008) 43 Cal.4th 268, 293–294 (Valencia); Carter, supra, 36 Cal.4th at pp. 1171–1174), as has at least one decision of the Court of Appeal (People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1548–1551).
In Carter, supra, 36 Cal.4th 1114, the court explained that even if the opportunity to cross-examine the witness at the preliminary hearing is not “‘“an exact substitute for the right of confrontation at trial, ”’” no confrontation violation results from the admission at trial of the preliminary hearing testimony of an unavailable witness “‘“because the interests of justice are deemed served by a balancing of the defendant’s right to effective cross-examination against the public’s interest in effective prosecution. ”’” (Id. at p. 1173.) Further, “‘a defendant’s motive in cross-examining a witness at a preliminary hearing may differ somewhat from the motive at trial, but nevertheless the earlier testimony may be admissible at the trial under [Evidence Code] section 1291 because the “motives need not be identical, only ‘similar.’”’” (Ibid.) In addition, “‘as long as a defendant was provided the opportunity for cross-examination, the admission of preliminary hearing testimony under Evidence Code section 1291 does not offend the confrontation clause of the federal Constitution simply because the defendant did not conduct a particular form of cross-examination that in hindsight might have been more effective.’” (Id. at pp. 1173–1174.)
In Valencia, supra, 43 Cal.4th 268, the court further explained, “‘[A] defendant’s interest and motive at a second proceeding is not dissimilar to his interest at a first proceeding within the meaning of Evidence Code section 1291, subdivision (a)(2), simply because events occurring after the first proceeding might have led counsel to alter the nature and scope of cross-examination of the witness in certain particulars.’” (Id. at pp. 293–294.)
When Chelsea testified at the preliminary hearing, defendant was present and represented by counsel, who cross-examined Chelsea, as did the two codefendants. Defendant’s interest in cross-examining Chelsea at the preliminary hearing was similar, if not identical, to what her motive at trial would have been, that is, to discredit Chelsea’s testimony to the extent it showed that defendant had committed the charged offenses. The court did not restrict defendant’s cross-examination of Chelsea at all. Thus, even if defendant had preserved her claim by objecting in the trial court, we would conclude that the admission of Chelsea’s preliminary hearing testimony at trial did not violate defendant’s right of confrontation.
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, J. CHANEY, J.