Opinion
D073453
06-20-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES ANTHONY OTIS, Defendant and Appellant.
Christopher A. Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Tami S. Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV-1501291) APPEAL from a judgment of the Superior Court of San Bernardino County, Colin J. Bilash, Judge. Reversed. Christopher A. Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Tami S. Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury found James Anthony Otis guilty of human trafficking to commit pimping (Pen. Code, § 236.1, subd. (b)) (count 1); pimping (§ 266h, subd. (a)) (count 2); pandering by procuring (§ 266i, subd. (a)(1)) (count 3); and simple battery (§ 242) (count 4). In a bifurcated proceeding, Otis admitted having suffered a prior strike conviction (§§ 1170.12, subds. (a)-(d), § 667, subds. (b)-(i).). After granting Otis's motion for a new trial with respect to count 4, the trial court sentenced Otis to an aggregate term of 40 years in prison, including an aggravated term of 20 years on count 1, doubled due to the prior strike conviction. The court imposed sentences of two years on counts 2 and 3, and stayed execution of these sentences pursuant to section 654.
All subsequent statutory references are to the Penal Code unless otherwise specified.
After the jury rendered its verdicts, Otis filed a motion for new trial, based on the jury's inadvertent receipt of an e-mail from the alleged victim to a victim witness advocate describing her relationship with Otis. The trial court granted the motion for new trial as to count 4, but denied the motion as to the other counts. The People dismissed count 4 without prejudice prior to sentencing.
On appeal, Otis claims that the trial court violated his Sixth Amendment right to confront adverse witnesses by admitting in evidence the alleged victim's (C.R.) preliminary hearing testimony. Otis maintains that the People failed to make a sufficient showing that C.R. was unavailable for trial, and that it was therefore improper for the court to admit her preliminary hearing testimony in evidence.
Upon our de novo review, we conclude that the trial court erred in determining that C.R. was legally unavailable for trial. Although the People were aware that C.R. was a critical witness and that she had previously failed to appear in court as directed for a pretrial hearing, the record indicates that after C.R. failed to appear, the People conducted no investigation whatsoever to determine C.R.'s whereabouts in order to secure her presence at trial. Under these circumstances, it cannot be said that the People engaged in " ' " 'untiring efforts in good earnest,' " ' " to locate and present C.R. for trial. (People v. Herrera (2010) 49 Cal.4th 613, 622 (Herrera).) Such efforts were required before dispensing with Otis's constitutionally guaranteed right of confrontation. (Id. at p. 620.)
We further conclude that the error in admitting the preliminary hearing testimony requires reversal. C.R.'s preliminary hearing testimony was the primary evidence introduced against Otis at trial, and the prosecutor referred to the transcript of that testimony repeatedly during her closing argument. In addition, the jury asked for a readback of C.R.'s preliminary hearing testimony during deliberations. The People, who carry the burden of establishing that the violation of Otis's constitutional right to confrontation was harmless, present no argument as to a lack of prejudice on appeal. Given this record, we cannot conclude that the erroneous admission of C.R.'s preliminary hearing testimony was harmless beyond a reasonable doubt. Accordingly, we are compelled to reverse the judgment.
The People may retry Otis on remand. However, to the extent that the People seek to admit C.R.'s prior testimony at a new trial on remand on the ground that she remains legally unavailable, the trial court shall ensure that the record reflects that the People have exercised reasonable diligence to secure her presence at trial.
The record indicates that C.R. was present in court during postverdict proceedings.
Otis also contends that the jury's erroneous receipt of the e-mail referred in footnote 2, whether considered alone or in combination of with his other claim of error, also requires reversal of the judgment. In light of our reversal of the judgment on the grounds stated in the text, we need not consider this contention since it is unlikely to recur on remand.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People's evidence
C.R. came to California from Michigan in December of 2014 and began working as a prostitute. She met Otis shortly after arriving in California, while walking on a street where prostitutes commonly solicit customers. Otis told C.R. that she appeared not to "know what [she] was doing." C.R. and Otis exchanged contact information.
Approximately two weeks later, C.R. called Otis because she "didn't have anywhere to go." After the call, S.M., a prostitute who had worked for Otis for approximately seven years, picked up C.R. S.M. lived with Otis and was the mother of his child. S.M. instructed C.R. with respect to the prices to charge for various sex acts. C.R. started working for Otis as a prostitute that night.
C.R. continued to work for Otis as a prostitute for several months. During this time, Otis was physically violent with C.R. on several occasions, and he dissuaded her from ceasing to prostitute herself on his behalf.
On April 7, 2015, C.R. was living with Otis and S.M. C.R. contacted her best friend in Michigan and told the friend that she was afraid to leave Otis. C.R.'s friend contacted law enforcement. Officers arrived at the apartment that C.R shared with Otis and S.M to conduct a "[s]afety check." Upon arrival, the officers asked Otis whether he knew C.R. Otis said that he did not know her. C.R. could hear the police from her bedroom, but she did not come out because she was scared. The officers saw no signs of distress in the apartment and left. After the police left, Otis took C.R.'s phone, called her a "snitch," and told her to leave. C.R. left the apartment.
Approximately two hours later, during the early morning hours of the following day, Otis's neighbor contacted the police to report a possible incident of domestic violence involving C.R. The police responded to the neighbor's apartment and contacted C.R., who was inside the neighbor's apartment. After speaking with C.R., an officer contacted Otis. Otis again denied knowing C.R. The officer then spoke with S.M. S.M. admitted that C.R. was living in the apartment that S.M. shared with Otis. S.M. showed officers where C.M. was living, and permitted the police to search C.R.'s room. Police located items belonging to C.R. in her room.
As discussed in part II.C, post, the neighbor testified in the People's rebuttal case.
Later that morning, police searched Otis's apartment. They found multiple cell phones, including one belonging to S.M. and one later determined to belong to Otis. Police also found business cards for adult entertainment businesses, and documents related to Web sites that advertise prostitution. In addition, police found what appeared to be a "script" for a prostitute to use while soliciting customers over the telephone.
Chino Police Officer Melissa Garcia reviewed numerous text messages sent from Otis's phone and several texts sent between Otis's phone and C.R.'s phone. The messages suggested that Otis was C.R.'s pimp and that she was living at his residence. Text messages recovered from Otis's phone also suggested that he was S.M.'s pimp, and that S.M. assisted Otis in his pimping activities.
The People played recordings of jailhouse phone calls between Otis and S.M. at trial. During one call, Otis told S.M. that Otis had to prove that he was not living off prostitution activities and that he wanted S.M. to help provide him with documents related to another legal business that Otis claimed to operate. B. Defense evidence
As discussed in greater detail in part III.C.8, post, the defense presented evidence that C.R. had recanted her preliminary hearing testimony inculpating Otis.
Otis's associates testified that references in text messages sent between them and Otis suggesting that he was a pimp were sent in jest.
Two prostitutes testified that Otis was a client and not their pimp. C. Rebuttal evidence
S.M. testified that both she and C.R. were prostitutes.
As discussed in part III.C.10, post, the People played a recording of Officer Garcia's April 8, 2015 interview with C.R. in which C.R. stated that Otis was her pimp, and made other statements inculpating Otis.
Otis's neighbor saw C.R. standing outside of the neighbor's unit in the early morning hours of April 8. C.R. was shaking and limping, and appeared to be in need of assistance. C.R. told the neighbor that she was injured, and that she was hiding from Otis. C.R. also told the neighbor that she was prostituting herself on behalf of Otis.
III.
DISCUSSION
The trial court committed reversible error in determining that the People
demonstrated that C.R. was legally unavailable for trial, thus permitting
the admission of her preliminary hearing testimony in evidence
Otis claims that the trial court violated his Sixth Amendment right to confrontation by admitting C.R.'s preliminary hearing testimony in evidence. Otis maintains that the People failed to make a sufficient showing that C.R. was unavailable for trial, and that it was therefore improper to admit her preliminary hearing testimony in evidence. A. Governing law
"A criminal defendant has the right, guaranteed by the confrontation clauses of both the federal and state Constitutions, to confront the prosecution's witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.)" (Herrera, supra, 49 Cal.4th at p. 620.) "Although important, the constitutional right of confrontation is not absolute. [Citations.] 'Traditionally, there has been "an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant [and] which was subject to cross-examination . . . ." [Citation.]' [Citation.] Pursuant to this exception, the preliminary hearing testimony of an unavailable witness may be admitted at trial without violating a defendant's confrontation right." (Id. at p. 621.)
The Herrera court summarized the law governing whether a witness is unavailable for purposes of the federal constitutional law, as follows:
"A witness who is absent from a trial is not 'unavailable' in the constitutional sense unless the prosecution has made a 'good faith effort' to obtain the witness's presence at the trial. [Citation.] The United States Supreme Court has described the good faith requirement this way: '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.' " (Herrera, supra, 49 Cal.4th at p. 622.)
California law also permits the introduction of an unavailable witness's former testimony. Evidence Code section 1291, subdivision (a)(2) codifies an exception to the hearsay rule and provides that "former testimony," such as preliminary hearing testimony, does not constitute inadmissible hearsay 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." (Ibid.) As the Herrera court explained:
"Under [Evidence Code] section 240, subdivision (a)(5) (section 240(a)(5)), a witness is unavailable when he or she 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.' (Italics added.) The term '[r]easonable diligence, often called "due diligence" in case law, " 'connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.' " ' [Citation.]" (Herrera, supra, 49 Cal.4th at p. 622.)
"Considerations relevant to the due diligence inquiry 'include the timeliness of the search, the importance of the proffered testimony, and whether leads of the witness's possible location were competently explored.' [Citations.] In this regard, 'California law and federal constitutional requirements are the same.' " (Herrera, supra, 49 Cal.4th at p. 622.) B. Standard of review
In People v. Cromer (2001) 24 Cal.4th 889, 899 (Cromer), the California Supreme Court determined the "proper standard of appellate review for a trial court's due diligence determination," in determining whether a witness is legally unavailable for trial. The Cromer court held, "[A]ppellate courts should 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.)
The Cromer court explained that while a reviewing court must "apply a deferential standard of review to the trial court's factual findings," pertaining to "the prosecution's failed efforts to locate the absent witness," these "facts will rarely be in dispute." (Id. at p. 900.) The parties present no such factual disputes in this case.
The Cromer court stressed the need for de novo review of a trial court's due diligence finding, explaining, "Without independent review, in the words of the high court in [Ornelas v. United States (1996) 517 U.S. 690, 697], '[a] policy of sweeping deference would permit, "[i]n the absence of any significant difference in the facts" ' the application of the Sixth Amendment ' "[to] tur[n] on whether different trial judges draw general conclusions that the facts are sufficient or insufficient to constitute" ' due diligence." (Cromer, supra, 24 Cal.4th at p. 901.) Accordingly, the Cromer court disapproved numerous Court of Appeal decisions in which courts had applied the abuse of discretion standard of review to a trial court's due diligence determination. (Id. at p. 901, fn. 3.) C. Factual and procedural background
1. C.R.'s April 2015 statements to Officer Garcia
Officer Garcia interviewed C.R. on the morning of April 8, 2015. During the interview, C.R. told Garcia that she was a prostitute. In addition, C.R. said that Otis had been her pimp for four months, that she lived with him, and that he had physically abused her on several occasions. C.R. described how Otis acted as her pimp, including monitoring her internet advertisements for prostitution services and explaining sexual jargon. C.R. explained further that Otis "takes all the money and takes care of me." C.R. stated that she had attempted to leave town on a bus, but that Otis had prevented her from doing so.
2. C.R.'s preliminary hearing testimony
C.R. worked as a prostitute for Otis between mid-December 2014 and April 8, 2015. She gave all of the money that she earned to Otis. C.R. stated that Otis had been physically abusive to her on several occasions. She described specific instances of such abuse, including a time when he "threw [her] on the ground" and she had received treatment at a hospital for a knee injury that she suffered as a result of his assault. C.R. stated that she had tried to leave Otis, but he told her that she was not leaving him because she was the only White girl working for him.
3. Otis objects to the potential introduction of C.R.'s preliminary hearing testimony in his trial brief
Otis filed a trial brief on August 26, 2015. In his brief, Otis objected to the potential introduction of C.R.'s preliminary hearing testimony at trial. Otis argued that admission of C.R.'s preliminary hearing testimony would be permissible only if C.R. were properly found to be legally unavailable for trial. Otis contended that C.R. could be found legally unavailable only if the People exercised reasonable diligence to procure C.R.'s attendance at trial, but were unable to secure her presence.
At the time Otis filed his trial brief, the People had not requested to be permitted to present C.R.'s preliminary hearing testimony.
4. C.R.'s August 28, 2015 appearance in court and interview with the People and the defense
C.R. appeared voluntarily in court on August 28 and the parties announced that they were ready for trial. The court ordered C.R. to remain on call for the prosecutor.
That same day, the prosecutor, defense counsel, and an investigator for the defense conducted a joint interview with C.R. During the interview, C.R. recanted her preliminary hearing testimony. For example, C.R. explained that she had told a defense investigator that Otis was not her pimp and that C.R. had told the truth to the investigator. C.R. stated that she had testified that Otis was her pimp at the preliminary hearing because she felt that she would not be permitted to "go home" unless she provided such testimony. C.R. also stated that she had lied about Otis having assaulted her.
During the interview, C.R. stated that she was currently living with S.M. and babysitting S.M.'s child. C.R. said that she had come back to California "to make things right," because she had not been honest in some of her previous statements. C.R. indicated that she was planning to testify on Otis's behalf at the trial.
5. The September 3 hearing
C.R. was present in court on September 3. At the outset of the hearing, the prosecutor stated, "I just found out that our confidential victim [C.R.] is recanting." The prosecutor further stated:
"And so that brings up the issue where she will need an attorney appointed because she testified at a preliminary hearing. And if she is going to say that she testified falsely under oath, she needs to be advised about that."
Later during the hearing, the prosecutor stated the following concerning C.R.'s whereabouts:
"[A]s of Friday [August 28], while we were here for readiness . . . I texted my victim witness advocate and she had reassured me what I had been told, which was that the victim [C.R.] was in Michigan and that they knew where she was and she was cooperative.
"She had been contacting our advocate pretty regularly. So when she turned up to be in Court and with the defendant's girlfriend [S.M.], ready to testify for the defendant, it was a surprise to myself and to other people in the office, just because of the nature of the contact that she's had in this time frame."
The court ordered C.R. to return to court on September 8.
6. C.R.'s failure to appear in court on September 8
On September 8, the court remarked that C.R. had been ordered back to court that day, but that "[S.M.] says that [C.R.] is not coming." The court asked the prosecutor whether she wanted the court to issue a warrant for C.R.'s arrest. The prosecutor responded in the affirmative. The court issued a warrant for C.R.'s arrest.
The court's September 8 minute order states, "Bench warrant is issued against witness [C.R.] . . . in the amount of $100,000. (Court orders witness [C.R.] not be cite released)."
7. The trial court's September 17 ruling that C.R. was legally unavailable
At a hearing on September 17, the prosecutor requested that the trial court rule that C.R.'s preliminary hearing testimony could be admitted at trial. The prosecutor stated that she was requesting the order so as "to make sure we can go forward on Monday if [C.R.] doesn't appear."
The trial court noted that C.R. had been ordered to appear on September 8, and that she had not done so. The court asked whether the People had determined whether C.R. was in custody. The prosecutor responded that she knew that C.R. was not in custody as of the previous day (September 16), because C.R. had been responding to e-mails from the People's victim advocate, Margarita Gonzalez.
The court inquired whether the People had attempted to arrest C.R.
The prosecutor responded, "We don't know where she is. This is her e-mail address."
The court replied:
"No, but has anyone tried to arrest her? Has anyone gone to her house, the last known address, in an effort to arrest her. You have to make an effort to arrest her."
The prosecutor explained, "We don't have an address." The prosecutor added that, when C.R. was first contacted by the People, she was "in the process of moving out" of Otis's house and that "[C.R.] gave [the People] a Michigan address." The People had subsequently had contact with C.R. via e-mail and through two different phone numbers. However, the prosecutor indicated that C.R. was no longer responding to phone calls and that "the only way [the People] could reach out to her at this point was through e-mail . . . ."
The court then asked whether the People had ever had a physical address for C.R. The prosecutor responded:
"Not one in California; . . . only the one in Michigan. [¶] When she returned to California, and I became aware of that on August the 28th, she told me that she was living with the defendant's girlfriend [S.M.]. But like I said, [Otis] had moved out. [¶] I saw [Otis's] girlfriend [S.M.] yesterday and I said, is she living with you? She said, no."
The prosecutor continued, "I would ask the Court to find that she is unavailable and permit us to use the preliminary hearing transcript where she was cross-examined by [defense counsel]."
Defense counsel objected and argued that, in order for C.R.'s preliminary hearing testimony to be admissible, the People were required to demonstrate that C.R. was unavailable under Evidence Code section 240. Defense counsel maintained that in order to make such a showing, "the People have to exercise reasonable diligence to produce [C.R.'s] attendance." Defense counsel argued that the "fact she sent an e-mail, and she didn't show up is not enough diligence by the prosecutor to allow the former testimony to come in."
The prosecutor then clarified with the court that C.R. had voluntarily returned from Michigan to California after the preliminary hearing. The court stated:
"All right. And so they had service on her. She was ordered back by this Court twice. [¶] And I don't believe the People have to show anything else. I mean, it would be different if they haven't served her, then you would have, I think, valid legal points on the issue of trying to locate her based on the e-mail contact. But the fact that she had been ordered by this Court, personally by myself, to be here I think overcomes any threshold objection under [Evidence Code section] 240."
Defense counsel argued that admitting C.R.'s preliminary hearing testimony would violate Otis's Sixth Amendment right to confront adverse witnesses. In support of this argument, defense counsel maintained that certain discovery had been obtained since the preliminary hearing, and that defense counsel's ability to cross-examine C.R. at the preliminary hearing was therefore not an adequate substitute for cross-examination at trial.
After considerable argument concerning this issue, defense counsel returned to the trial court's finding that the People had exercised due diligence in attempting to locate C.R. for trial. Defense counsel stated, "So the Court is making its ruling they've exercised due diligence under the theory that [C.R.] sent them an e-mail?" After the court responded in the negative, defense counsel continued, "I mean, what have they done. Nothing. They haven't done anything, Your Honor. "
The trial court responded by reiterating its belief that once the court ordered C.R. back to court, "[h]er failure, in and of itself, to come back is sufficient [for the court to deem C.R. legally unavailable]." The court continued, "Their obligation has been fulfilled by bringing her to Court on multiple occasions and the Court ordering her back. And based on representations that I am being told that they have never had a physical address for her, the communication now is by e-mail only, and she has verbally indicated — well, I don't know. [¶] On the phone too, or just through e-mail, she indicated she has no intentions of appearing?"
Gonzalez clarified that C.R. had indicated that she would not appear solely by e-mail.
The court asked Gonzalez to read the relevant e-mails into the record. Gonzales complied:
"[Gonzalez]: On September 16th,[] 1:09 p.m., I sent [C.R.] an e-mail stating:
'Good morning, [C.R.]. I know this is a difficult situation and you have gone through a lot this couple of months. But we are near the finish line. I know you may be scared and . . . have a lot of mixed feelings, and it's normal to be having mixed emotions. Please call me as soon as possible so that I can walk you through what may happen in court and provide you assistance that you may need. The Court has ordered your presence and it is extremely important that you present yourself on Thursday, September 17th, 2015, at 8:30 in the morning in courtroom R-5. [¶] My work cell number is (909) --.' "
As noted in the text, the hearing occurred the following day, September 17.
Gonzalez said that she had received an e-mail back from C.R. that same day at 1:30 p.m. that stated:
" 'Why do I have to go? They didn't need me before and I don't have transportation right now.' "
Gonzalez explained that approximately a half hour later, she e-mailed C.R. the following:
" '[C.R.], on September 3rd, 2015, the judge ordered you to return to court on September 8th, 2015, at 1:30. Since you didn't present yourself to Court on September 8th, 2015, a bench warrant has been issued. It is very important for you to come to Court on Thursday, September 17, 2015, at 8:30, Department R-5.
" 'If you don't have transportation, one of our investigators can pick you up. I am sure this is not easy for you and stressful that you have to show up to court. I am here to answer any questions you may have. You have my contact information, call me at any time.' "
C.R. emailed Gonzalez back, " 'Won't I go to jail if I come because I have a warrant?' "
Gonzalez emailed C.R., " 'Hi [C.R.], if you come to court, you can talk to the judge. He is the only one that can decide if you get arrested or not.' "
The court confirmed that Gonzalez had sent the last e-mail at 5:04 p.m. the previous day.
The court proceeded to reject defense counsel's suggestion that the court require the People to utilize C.R.'s e-mail address or cell phone number to attempt to locate her at that time, on the ground that such efforts would require a search warrant, would "go beyond due diligence," and would not necessarily reveal C.R.'s physical location.
After the court rejected this suggestion, defense counsel reviewed the contacts that the defense had had with C.R., including noting that a defense investigator had "contact with her on September the 11th."
The prosecutor commented that, "It should be noted for [the] record that in the interviews provided by the defense [C.R.] has completely recanted." The prosecutor added that "of course we need her here," and stated that "she was here and the People asked for her to be ordered back."
The court remarked, "I mean it's clear right now, based on the information the Court has, she has voluntarily, you know, decided she is not coming."
Defense counsel then stated, "And then one last point. [¶] Her importance is paramount in this case; I mean, she [is] the alleged victim. So that, to me, raises the level of due diligence that is necessary in this case. If it was an ancillary witness, that's one thing, but this is the victim."
The court responded:
"Well, I don't necessarily disagree with that. But all you can do is get the witness to come into Court. I ordered her back. [¶] I had no legal authority to put her in custody pending the trial, nor would the D.A. have had authority to ask for me [to] do that as a material witness because she had never indicated that she would not cooperate.
"And given the fact that she had voluntarily come back from Michigan on her own, before she even needed to and was coming to Court, indicated that she was going to cooperate.
"So, I mean, nobody can really do much more than that."
8. The reading of C.R.'s preliminary hearing testimony at trial
During the People's presentation of evidence at the trial, the court reporter read a partially redacted version of C.R.'s preliminary hearing testimony to the jury. Defense counsel reiterated his objection to the reading of the testimony.
The redactions are not material for purposes of this appeal.
9. C.R.'s statements recanting her testimony and statements inculpating Otis are introduced at trial
The defense played a recording of C.R.'s August 28 interview during which C.R. recanted her preliminary hearing testimony. In addition, a defense investigator testified that, during a July 2015 interview, C.R. admitted having lied about Otis being her pimp. The investigator stated that C.R. said that she had lied because an investigator with the district attorney's office and a victim witness advocate had threatened her.
10. The playing of C.R.'s April 2015 interview with Officer Garcia at trial
During their rebuttal case, the People played a video recording of Officer Garcia's April 8 interview of C.R. D. The trial court erred in admitting C.R.'s preliminary hearing testimony on the ground that she was unavailable for trial
In order for a trial court to admit a witness's preliminary hearing testimony at a trial on the basis that the witness is unavailable to testify, the People must first demonstrate that they exercised reasonable diligence but were unsuccessful in securing the witness's presence for trial. (Herrera, supra, 49 Cal.4th at pp. 621-622.) In determining whether the People exercised reasonable diligence, we must review the record to determine whether the People demonstrated " ' " 'untiring efforts in good earnest, efforts of a substantial character,' " ' " (id. at p. 622.) to secure C.R.'s presence for trial.
The record indicates that the People requested that the court issue a warrant for C.R.'s arrest after she failed to appear in court on September 8. The People also attempted to contact C.R. by telephone at two different phone numbers at unspecified times, but were unsuccessful in reaching her. Finally, Gonzalez e-mailed C.R. on September 16 and urged her to come to court the following day. That is the totality of the People's efforts reflected in the record to obtain C.R.'s presence for trial. We agree with Otis that these efforts were not sufficient.
The prosecutor stated at the September 17 hearing, "So we've used two numbers that we've had for her and haven't reached anyone."
Most importantly, none of the factors that the Supreme Court has specified as being relevant to a determination of the due diligence inquiry supports the conclusion that the People exercised due diligence in this case. With respect to the " 'timeliness of the search' " (Herrera, supra, 49 Cal.4th at p. 622), the People knew, as of September 8, that C.R. had failed to appear in court. However, aside from the Court's issuance of the September 8 arrest warrant, the record does not indicate that the People undertook any efforts to locate C.R. until September 16, the day before the People requested that the court declare C.R. legally unavailable for trial.
As noted in the text above, while the record indicates that the People attempted to reach C.R. by phone, there is no indication as to when those efforts were undertaken. On September 16, the prosecutor stated that she had spoken with S.M. and S.M told her that C.R. was not living with her. In addition, on September 16, Gonzalez emailed C.R.
With respect to the " 'the importance of the proffered testimony' " (Herrera, supra, 49 Cal.4th at p. 622), C.R. was the alleged victim in the case, and her testimony was of critical importance to the prosecution. The prosecutor acknowledged as much at the September 17 hearing, stating that an order permitting the admission of C.R.'s preliminary hearing testimony, was necessary "to make sure we can go forward on Monday if [C.R.] doesn't appear."
Further, the People were aware that C.R. had recanted her preliminary hearing testimony and that during the August 28 interview, she had expressed her intention to testify on Otis's behalf at trial. While this fact may have reduced the People's motivation to locate C.R. for tactical reasons, C.R.'s conflicting statements only heightened the importance of securing her presence at trial so that the jury could observe her demeanor in person in assessing her credibility. (Cf. People v. Garton (2018) 4 Cal.5th 485, 501 ["a jury may consider a witness's demeanor while testifying in order to determine the witness's credibility"].)
It is also clear that it cannot be said that " 'leads of [C.R.'s] possible location were competently explored.' " (Herrera, supra, 49 Cal.4th at p. 622.) On August 28, C.R. told the prosecutor that she was staying with S.M. However, there is no evidence that any representative of the People ever went to S.M.'s residence, even after September 8 when C.R failed to appear in court. Moreover, while the prosecutor stated that S.M. had told the prosecutor on September 16 that C.R. was not living with her, there is nothing in the record to suggest that the People ever investigated whether S.M. was being truthful. Further, at the September 8 hearing at which C.R. failed to appear, the court stated, "[S.M.] says that [C.R.] is not coming." Despite these indications that S.M. and C.R. had been in contact, the record does not indicate that the People even asked S.M. whether she knew where C.R. could be located, much less that the People conducted surveillance of S.M. in an attempt to locate C.R.
The People do not contend that they were unaware of S.M.'s address.
In addition, the record indicates that the People were aware of: the general locations where C.R. had worked as a prostitute, a specific hotel at which C.R. had been contacted by the police, and the Internet Web site that C.R. used to advertise her prostitution services. Yet, there is nothing in the record to suggest that the People made any efforts to use any of this information to attempt to locate C.R.
The record also indicates that C.R. provided the People with an address in Michigan, and that, as of September 2, the People had the phone number of C.R.'s friend, who was the "initial reporting party" in this case. Yet, there is nothing in the record to suggest that the People explored these possible leads, either.
The People contend that "[t]he prosecution's efforts in this case are precisely the type of efforts the courts have upheld as due diligence." In support of this contention, the People argue the following:
"For example, in People v. Andrade, the court concluded that the prosecution exercised reasonable diligence in attempting to locate a juvenile witness who disappeared after she testified at the preliminary hearing. (People v. Andrade (2015) 238 Cal.App.4th 1274, 1294.) The prosecution's efforts included 'making numerous
calls to Jane Doe IV and her family; checking multiple statewide databases for Jane Doe IV and her family; [and] attempting to contact Jane Doe IV on social media Web sites.' (Ibid.)
"Similarly, in People v. Diaz, the court held that the prosecution exercised due diligence in attempting to produce a witness who 'purposely made herself unavailable because she was unwilling to testify.' (People v. Diaz (2002) 95 Cal.App.4th 695, 706.) The court found sufficient that the police attempted to personally serve the witness with a subpoena, spoke to her mother, went to her schools, checked with local hospitals and the Department of Motor Vehicles, and also checked to see if she had been arrested. (Id. at pp. 706-707.)"
As Otis notes in reply, the cases cited by the People serve only to demonstrate how inadequate the People's search for C.R. was in this case. Unlike in Andrade, the record does not indicate that the People made any calls to C.R.'s friends or family, there is no evidence that the People checked any statewide databases, and there is no evidence that the People attempted to use social media Web sites to locate C.R. Unlike in Diaz, there is no evidence that the People made any attempt to speak with C.R.'s family members, that they sent investigators to locations that she was known to frequent, or that they checked with local hospitals or the Department of Motor Vehicles for information regarding C.R.'s whereabouts.
During the trial, Officer Garcia testified concerning a photograph that she stated that she had "found . . . on [C.R.'s] Facebook," thereby suggesting that the People had some knowledge of C.R.'s social media presence. However, there is no evidence in the record that the People attempted to locate C.R. for trial through social media Web sites.
The People cite two additional cases, People v. Wilson (2005) 36 Cal.4th 309 (Wilson) and People v. Hovey (1988) 44 Cal.3d 543 (Hovey) in support of their contention that they made reasonably diligent efforts to locate C.R. In Wilson, a detective testified that he visited a missing witness's last known address, attempted to locate the witness's known associates, and checked police, county, and state records with the 15 different names that the witness had used. (Wilson, supra, at p. 341.) In Hovey, the Supreme Court described the prosecution's efforts to locate a witness as follows:
"[T]he record discloses that, at some point during the two-and-one-half-year interval between the preliminary hearing and the trial, Lee's whereabouts became unknown. More than one month before Lee's trial testimony was needed, investigators from the district attorney's office attempted to locate him. Learning that Lee had been released on 'interstate parole' to Oklahoma authorities, the investigators made further inquiries and learned that Lee's Oklahoma parole had terminated and that Oklahoma authorities were unaware of Lee's present location. Attempts to locate or call Lee's parents and in-laws were unsuccessful. Records from the Oklahoma police and Federal Bureau of Investigation were consulted to no avail. The Oklahoma officers cooperated in attempting to find Lee by following numerous leads, making various telephone calls and checking arrest and drivers' license records. The People's investigators made, by defendant's own count, approximately 17 telephone calls to various sources in a vain attempt to uncover Lee's whereabouts. This number does not include additional calls by local authorities in Oklahoma." (Hovey, supra, at pp. 562-563.)
In this case, as recounted above, the record contains evidence that the People: 1) called two phone numbers that C.R. had provided them and; 2) urged C.R. to come to court in an e-mail. Thus, the People's investigation in this case does not resemble, in any fashion, the investigations employed in Wilson or Hovey.
As discussed in the text, the trial court stated that C.R.'s failure to return to court after having been ordered to do so was "in and of itself" sufficient for the court to find that she was legally unavailable. The People do not make this argument on appeal, and we have found no authority to support such reasoning.
In sum, the People conducted, at best, "a desultory and indifferent search" (People v. Mendieta (1986) 185 Cal.App.3d 1032, 1039) for C.R. and failed to demonstrate reasonable diligence in attempting to secure her presence at trial. Accordingly, we conclude that the trial court erred in admitting C.R.'s preliminary hearing testimony on the ground that she was legally unavailable for trial. E. The error requires reversal
The erroneous admission of C.R.'s preliminary hearing testimony violated Otis's federal constitutional right to confront adverse witnesses. (See Herrera, supra, 49 Cal.4th at pp. 621-622.) Accordingly, the People bore the burden of proving that the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) The People make no argument on appeal that any error in admitting the testimony was harmless, and after our own review of the record for prejudice, we cannot conclude that the error was harmless beyond a reasonable doubt.
The California Supreme Court has not decided "the significance, if any, of the Attorney General's failure to brief the question of prejudice," on appeal. (People v. Grimes (2016) 1 Cal.5th 698, 720.)
To begin with, C.R.'s improperly admitted preliminary hearing testimony was the primary evidence introduced against Otis at trial with respect to the charged offenses. Further, C.R.'s preliminary hearing testimony was extremely inculpatory on all counts. With respect to the pimping and pandering charges, C.R. stated that she worked as a prostitute for Otis for several months, that she gave all of the money that she earned while working as a prostitute to him, and that he assisted her in engaging in prostitution in various ways, including paying for her internet prostitution advertisements, giving her money to buy condoms, driving her to work as a prostitute, and paying for hotel rooms where she would engage in prostitution. With respect to the jury's verdict finding Otis guilty of a battery, C.R testified that Otis had been "physical with [her]," on April 8, and that he had slapped her on another occasion. Testimony that Otis was violent, and that he had engaged in pimping and pandering with C.R. also supported the human trafficking count. In addition, C.R. testified at the preliminary hearing that she was afraid of Otis, that Otis had threatened her with physical violence, that Otis told her that she could not leave him because she was the only White girl working for him, and that she felt that she was unable to leave Otis. This testimony provided strong evidence supporting the human trafficking count.
In order to prove that Otis was guilty of human trafficking, the People were required to prove that he "deprive[d] or violate[d] the personal liberty of [C.R.] with the intent to effect or maintain a violation of [various crimes, including pimping]." (§ 236.1.) Section 236.1 defines " '[d]eprivation or violation of the personal liberty," as "includ[ing] substantial and sustained restriction of another's liberty accomplished through force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person, under circumstances where the person receiving or apprehending the threat reasonably believes that it is likely that the person making the threat would carry it out." (§ 236.1, subd. (h)(3).)
Exacerbating the error in admitting C.R.'s preliminary hearing testimony, the prosecutor repeatedly referred to the testimony during closing argument. The prosecutor's heavy reliance on the improperly admitted testimony heighted the possibility of prejudice. (See People v. Diaz (2014) 227 Cal.App.4th 362, 384 ["A prosecutor's reference to evidence that should not have been presented to the jury increases the potential for prejudice flowing from the error"]; People v. Cruz (1964) 61 Cal.2d 861, 868 ["There is no reason why we should treat this evidence as any less 'crucial' than the prosecutor—and so presumably the jury—treated it"].) In fact, the record contains an affirmative indication that the jury viewed the improperly admitted evidence as significant, since it requested a readback of C.R.'s preliminary hearing testimony during deliberations.
In observing that the prosecutor relied on the improperly admitted evidence during her closing argument, we do not mean to suggest that the prosecutor acted improperly. The prosecutor received a favorable, albeit erroneous, ruling from the trial court and was entitled to present argument based on that evidence during closing argument.
In addition, the defense presented evidence that C.R. had recanted her preliminary hearing testimony, and argued that she had a motive to fabricate her inculpatory testimony. Further, there are indications in the record that the jury did not view the evidence in this case, even with the improperly admitted evidence, as overwhelming. In addition to requesting a read back of C.R.'s prior testimony, the jury asked four other questions during deliberations, including seeking clarification with respect to one of the elements of the human trafficking count and requesting a readback of two other witnesses' testimonies. (See People v. West (1983) 139 Cal.App.3d 606, 610 ["The closeness of this case is demonstrated by the fact that the jury asked for rereading of a substantial portion of the testimony, [and] asked for a rereading of some instructions . . . ."].)
Specifically, during closing argument, defense counsel referred to the People's expert's testimony that a prostitute may receive more favorable treatment from the police if she cooperates in the prosecution of her pimp.
Under these circumstances, we cannot conclude that the People have carried their burden of demonstrating that the improper admission of the alleged victim's former testimony inculpating Otis was harmless beyond a reasonable doubt—particularly in view of the fact that the People have presented no argument on appeal that any error in admitting C.R.'s preliminary hearing testimony was harmless.
Otis also argued on appeal that the trial court erred in permitting the People to play a video recording of Officer Garcia's April 8 interview of C.R during their rebuttal case. The record and the parties' briefs are not entirely clear as to the basis upon which this evidence was admitted and whether, and on what basis, the defense objected to the admission of such evidence. In any event, in light of our reversal of the judgment on the grounds stated in the text we need not address this argument.
However, for the guidance of the parties and the court on remand, we note that in People v. Kopatz (2015) 61 Cal.4th 62, 84 (Kopatz), the Supreme Court held that evidence of a declarant's prior consistent statements are not admissible at a trial as substantive evidence pursuant to Evidence Code sections 1236 and 791 where the declarant does not testify at the trial. (Citing People v. Hitchings (1997) 59 Cal.App.4th 915, 922.) The Kopatz court explained that the prior consistent statements of such a declarant are "not consistent with his 'testimony at the hearing within the meaning of Evidence Code section 1236." (Kopatz, supra, at p. 84, italics added.) The Kopatz court noted that prior consistent statements of an unavailable witness may be admissible pursuant to Evidence Code section 1202 to " 'support the credibility of the [hearsay] declarant,' " (Kopatz, at p. 85, quoting Evid. Code, § 1202) in cases in which the foundational requirements for the introduction of the statements contained in section 791 are met.
Otis also argues, in the alternative, that his trial counsel provided ineffective assistance to the extent that we conclude that his counsel failed to adequately preserve Otis's Sixth Amendment objection to the improper admission of testimonial hearsay. The People concede, and we agree, that trial counsel adequately preserved Otis's constitutional claim with respect to the improper admission of C.R.'s preliminary hearing testimony, upon which we reverse the judgment. Thus, we need not consider Otis's claim of ineffective assistance of counsel.
IV.
DISPOSITION
The judgment is reversed.
AARON, J. WE CONCUR: BENKE, Acting P. J. DATO, J.