Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA109908, Yvonne T. Sanchez, Judge.
James Koester, 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, Assistant Attorney General, Yun K. Lee and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Christopher Gregory Puerto appeals from the judgment entered following a jury trial that resulted in his conviction for inflicting corporal injury on a spouse. The trial court placed Puerto on probation for three years, on condition he serve 120 days in jail.
Puerto contends: (1) admission of the victim’s preliminary hearing testimony violated his Sixth Amendment confrontation rights and was prejudicial error; (2) admission of evidence he had committed previous domestic violence against the same victim was prejudicial error; (3) the trial court erred by failing to give a unanimity instruction; and (4) the cumulative effect of the purported errors requires reversal. Discerning no prejudicial error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues on appeal was as follows. Appellant and Amber Williams were married and had four children together. They and the children lived in a Whittier apartment building. Ramar Towers had been their next door neighbor for over four years, and knew them well.
On March 22, 2009, at approximately 9:00 a.m., Towers heard Puerto and Williams arguing and doors slamming. After the pair had argued for approximately one hour, Towers went to their door to tell Puerto to “chill out and calm down.” He overheard Williams ask Puerto, “ ‘Why did you push me?’ ” Puerto responded that he had not pushed Williams; she had tripped. Towers also heard Puerto tell Williams that if she called police, he would claim that she started the argument and “would have the kids taken away.”
Williams answered Towers’s knock at the door. She was crying, angry, and had a bloody lip. Towers told her, “ ‘Amber, I am not going to deal with this like this. I am either going to call your dad, or I am going to call the police.’ ” Williams indicated she did not want Towers to call her father. Puerto left the apartment, and Towers telephoned 911. Towers told the dispatcher that Puerto and Williams were “physically fighting” and Williams had a bloody lip and mouth.
Los Angeles County Deputy Sheriff Arturo Gabriel and other deputies responded to the 911 call. Williams was crying and distraught. She told Gabriel that she had gotten into an argument with Puerto, who had become very angry. Puerto pushed her against a wrought iron storage shelf, causing her to hit the back of her head and fall to the ground. Puerto then grabbed her around the neck and punched her numerous times in the face and back of the head with his fist. Deputy Gabriel observed that the left side of Williams’s face was slightly swollen and red, her upper lip was slightly swollen, her lip was bleeding, and she had redness around her neck and upper chest. She complained of pain to her face, lip, and the back of her head. Williams told Gabriel that there was a prior history of domestic violence between her and Puerto.
On March 25, 2009, Detective Julia Porras and her partner went to the couple’s apartment to do a follow-up investigation. They encountered Puerto leaving the residence, and detained him. Porras interviewed Williams and Puerto separately. Williams related that on March 22, she and Puerto had argued. When Porras asked whether Puerto had hit Williams, Williams responded, “ ‘He didn’t mean to’ ” but had been “stressed” about Williams’s father. She indicated that she had been prescribed depression medication, but had not been taking it on the date of the incident. She did not want Puerto to be prosecuted, and completed a standardized form so indicating.
Puerto told Porras that on the date of the incident, he was upset because Williams had “got[ten] in his face” regarding his disciplining the children. They started pushing each other, and Williams fell to the ground. He ran to where she had fallen and put her in a chokehold. He realized that what he was doing was wrong, released her, and ran out of the apartment. He denied hitting Williams.
At a pretrial Evidence Code section 402 hearing, the trial court determined Williams was an unavailable witness and admitted her preliminary hearing testimony pursuant to Evidence Code section 1291. At the preliminary hearing, Williams testified as follows. During the incident, she and Puerto had argued and yelled loudly at each other, and then Puerto went for a walk. She did not remember Puerto touching her during the argument, and she did not have any injuries when he left. She had told the responding deputies that the couple had merely argued. The injury to her lip was a cold sore, and the redness on her chest, neck and face was a sunburn. She had not complained of any pain when talking to Deputy Gabriel. She did not recall telling Gabriel that Puerto had struck her in the past, or that there was a history of unreported domestic violence. When asked whether Puerto hit her, placed his arm around her neck, or pushed her, causing her to hit her head and fall, Williams responded that she did not recall. She stated, “I don’t remember what happened. I don’t remember what I said. I don’t know” and “I don’t remember any of this.” She stated that she did not wish to testify against Puerto.
2. Procedure.
Trial was by jury. Puerto was convicted of inflicting injury upon his spouse or cohabitant (Pen. Code, § 273.5, subd. (a)). The trial court suspended imposition of sentence and placed Puerto on probation for a period of three years, on the condition he serve 120 days in county jail. It imposed a court security assessment, a criminal conviction assessment, a domestic violence fine, a restitution fine, and a suspended probation restitution fine. Puerto appeals.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. Admission of Williams’s preliminary hearing testimony was proper.
As noted, prior to trial the prosecutor moved to admit Williams’s preliminary hearing testimony pursuant to Evidence Code section 1291. After conducting a “due diligence” hearing, the trial court determined that the prior testimony was admissible. Puerto contends the trial court’s ruling was error. We disagree.
a. Applicable law and contentions.
“The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution’s witnesses. [Citations.] 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. Under federal constitutional law, such testimony is admissible if the prosecution shows it made ‘a good-faith effort’ to obtain the presence of the witness at trial. [Citations.]” (People v. Cromer (2001) 24 Cal.4th 889, 892; People v. Bunyard (2009) 45 Cal.4th 836, 849; People v. Valencia (2008) 43 Cal.4th 268, 291-292; People v. Smith (2003) 30 Cal.4th 581, 609.) In California, the exception to the confrontation right for prior recorded testimony is codified in Evidence Code section 1291, subdivision (a). (People v. Bunyard, supra, at p. 849.) That section provides in pertinent part: “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.” When the requirements of Evidence Code section 1291 are met, the admission of former testimony does not violate a defendant’s federal confrontation clause right. (People v. Wilson (2005) 36 Cal.4th 309, 340.)
Whether a party exercised reasonable diligence to locate a missing witness is a mixed question of law and fact. (People v. Cromer, supra, 24 Cal.4th at p. 894.) We defer to the trial court’s determination of the historical facts of what the prosecution did to locate an absent witness, but independently review whether those efforts amount to reasonable diligence sufficient to sustain a finding of unavailability. (People v. Bunyard, supra, 45 Cal.4th at p. 851; People v. Valencia, supra, 43 Cal.4th at p. 292; People v. Cromer, supra, at pp. 900-901.)
Puerto mounts a two-pronged attack on the trial court’s admission of Williams’s preliminary hearing testimony. First, he asserts that the testimony should have been excluded because the People failed to establish they exercised reasonable diligence to locate Williams and secure her appearance at trial. Second, he contends he did not have an opportunity to cross-examine Williams with a motive or interest sufficiently similar to that existing at trial. Admission of the testimony, he urges, violated his Sixth Amendment and state constitutional rights to confront witnesses, as well as his state law statutory rights.
b. Forfeiture.
Preliminarily, the People contend that Puerto has (1) forfeited his Sixth Amendment claim because he failed to object on that specific ground, and (2) forfeited his claim that he lacked an adequate opportunity to cross-examine Williams because he did not raise this issue in the trial court. The People are correct on the second point, but not the first. Puerto did object to admission on the ground the prosecution had failed to exercise due diligence to obtain Williams’s presence at trial. An appellant does not forfeit a claim of federal constitutional error when the new arguments raised on appeal do not invoke facts or legal standards different from those the trial court was asked to apply. (People v. Carasi (2008) 44 Cal.4th 1263, 1289, fn.15.) Because the question of whether the People exercised due diligence was adjudicated below and is one of the key issues relevant to Puerto’s federal constitutional claim, his failure to specifically reference the Sixth Amendment did not constitute a forfeiture. (Ibid.) On the other hand, Puerto never contended below that the testimony should have been excluded because he lacked an opportunity to cross-examine Williams with a motive and interest similar to that existing at trial. This contention has therefore been forfeited on appeal. (People v. Williams (2008) 43 Cal.4th 584, 626.) In any event, both claims fail on the merits, as we shall explain.
c. Reasonable diligence.
Puerto’s first line of attack on the trial court’s ruling is his contention that the prosecution failed to exercise due diligence to secure Williams’s attendance at trial. To establish unavailability for purposes of Evidence Code section 1291, the proponent of the evidence must show the declarant is absent from the hearing and that the proponent has exercised reasonable diligence (often referred to as “due diligence”), but has been unable to procure the witness’s attendance by the court’s process. (People v. Bunyard, supra, 45 Cal.4th at p. 849; Evid. Code, § 240 subd. (a)(5); People v. Smith, supra, 30 Cal.4th at pp. 609-610; People v. Sanders (1995) 11 Cal.4th 475, 522-523; People v. Cummings (1993) 4 Cal.4th 1233, 1296.) The proponent of the evidence has the burden of establishing unavailability by competent evidence. (People v. Cummings, supra, at p. 1296; People v. Diaz (2002) 95 Cal.App.4th 695, 706.)
“ ‘[D]ue diligence’ ” is not susceptible to a mechanical definition, but “ ‘ “connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.” ’ [Citation.]” (People v. Valencia, supra, 43 Cal.4th at p. 292; People v. Sanders, supra, 11 Cal.4th at p. 523.) Whether due diligence is shown depends upon the totality of efforts used to locate the witness. (People v. Sanders, supra, at p. 523.) Relevant considerations include the character of the prosecution’s efforts; whether the search was timely begun; the importance of the witness’s testimony; whether leads were competently explored; whether the proponent of the evidence reasonably believed prior to trial that the witness would appear willingly and therefore did not subpoena the witness when he or she was available; and whether the witness would have been produced if reasonable diligence had been exercised. (People v. Valencia, supra, at p. 292; People v. Cromer, supra, 24 Cal.4th at p. 904; People v. Sanders, supra, at p. 523.)
Here, Senior District Attorney Investigator Mark Suhr testified at the pretrial “due diligence” hearing regarding his efforts to locate Williams and serve her with a subpoena. On June 12, 2009, Suhr visited Williams’s last known address, that is, the Whittier apartment. She was not present. Suhr personally returned to the apartment on three additional occasions. The apartment manager was not there when he visited, but he spoke to two of Williams’s neighbors, who informed him that she had moved several months earlier. Suhr requested that the neighbors contact Williams’s other acquaintances to see if they had additional contact information for her. In Suhr’s presence, one woman who identified herself as a friend of Williams’s called another friend or acquaintance to attempt to obtain contact information for Williams, to no avail. On June 30, 2009, Suhr served Towers with a subpoena and asked him about Williams’s whereabouts. Towers told Suhr that Williams no longer lived next door to him, but he did not know her new address.
On the preceding day, June 11, 2009, the trial court had set a trial date of June 29, 2009. On June 29, trial was continued to July 8, 2009.
Suhr ordered photographs and records from the Department of Motor Vehicles (DMV), and personally contacted DMV headquarters in Sacramento when his initial efforts to access the DMV records were unsuccessful. He additionally searched public records via the LEXIS-NEXIS computerized database. He contacted the Employment Development Department, but they had no record of Williams.
Suhr’s investigation of public records did reveal information on Williams’s father and grandmother. Suhr spoke to Williams’s father, Scott, on several occasions, including once during the week preceding trial. Scott stated that he would not tell Suhr where Williams was because she did not wish to testify. Suhr spoke to Williams’s grandmother on two occasions. Like Williams’s father, she refused to divulge Williams’s whereabouts. Suhr requested that Williams’s relatives ask her to call the district attorney. She did not.
Until the date of the due diligence hearing, Suhr had not been aware that Puerto was out of custody, and so had not attempted to locate a new address for him or seek Williams at Puerto’s residence. Suhr was unaware of Williams’s attitude toward giving testimony and did not know whether she had appeared at the preliminary hearing. In fact, he knew little or nothing about the facts of the case.
Exercising our independent judgment, we conclude these efforts amounted to reasonable diligence. The prosecution’s efforts were timely; Suhr began attempting to locate Williams immediately after a trial date was set. His attempts to locate Williams were substantial and undertaken in good faith. Suhr competently explored the leads available to him. He made several personal visits to Williams’s last known address, spoke to her neighbors, had one of her friends telephone another individual to attempt to obtain contact information, repeatedly spoke to her father and grandmother, and searched various public records. These efforts were “timely, reasonably extensive and carried out over a reasonable period” (People v. Bunyard, supra, 45 Cal.4th at p. 856), and cannot be characterized as perfunctory or indifferent. (See People v. Valencia, supra, 43 Cal.4th at pp. 292-293 [due diligence where investigator attempted to reach the witness by phone, visited his home once, checked DMV records and visited two other apartments listed in those records, spoke with five or six neighbors but received no leads, ran a “rap sheet, ” a credit check, real estate records, and court records]; People v. Wilson, supra, 36 Cal.4th at p. 341 [due diligence where detective made efforts over two days to locate witness, including visiting his last known address, attempting to locate his known associates, and checking police, county and state records]; People v. Wise (1994) 25 Cal.App.4th 339, 344 [due diligence shown where prosecution attempted to serve the witness three times at one address, twice at others, and contacted the jail, hospital, coroner, and post office]; see generally People v. Bunyard, supra, at pp. 855-856 and cases cited therein.) It was clear that Williams was determined not to testify and was avoiding the People’s efforts to find her. (See generally People v. Diaz, supra, 95 Cal.App.4th at pp. 705-707.) Unlike in People v. Cromer, supra, 24 Cal.4th at p. 904, Suhr did not abandon or fail to pursue promising leads.
Puerto suggests other avenues that he contends should have been explored, including obtaining a forwarding address from the apartment manager and using court processes to compel Williams’s father to reveal her location. But “these suggestions do ‘not change our conclusion that the prosecution exercised reasonable diligence. “That additional efforts might have been made or other lines of inquiry pursued does not affect this conclusion. [Citation.] It is enough that the People used reasonable efforts to locate the witness.” [Citation.]’ ” (People v. Valencia, supra, 43 Cal.4th at p. 293; People v. Cummings, supra, 4 Cal.4th at p. 1298; People v. Lopez (1998) 64 Cal.App.4th 1122, 1128.) “ ‘Where the record reveals... that sustained and substantial good faith efforts were undertaken, the defendant’s ability to suggest additional steps (usually, as here, with the benefit of hindsight) does not automatically render the prosecution’s efforts “unreasonable.” [Citations.] The law requires only reasonable efforts, not prescient perfection.’ [Citations.]” (People v. Diaz, supra, 95 Cal.App.4that p. 706.)
Puerto also contends the investigator was negligent for failing to review the case file and apprise himself of relevant information, such as the fact Puerto was out of custody. Suhr testified that, once he learned Puerto was out of custody on the morning of the due diligence hearing, he had a hunch that Williams might be living with him. Puerto faults the prosecution for failing to follow up on this lead, urging that any reasonable investigator would have attempted to ascertain appellant’s new address and determine whether Williams was living with him there. But as the People point out, if Williams was living with Puerto at the time of trial, this fact seriously undercuts his claim that the People failed to exercise reasonable diligence. (See People v. Byron (2009) 170 Cal.App.4th 657, 674 [where domestic violence victim made herself unavailable as a witness, but the defendant was in contact with her and probably knew where she could be located, the witness’s unavailability was not the result of the prosecution’s lack of diligence].)
As appellant recognizes, this portion of Suhr’s testimony was stricken upon the defense’s objection. Puerto argues that the stricken testimony is nonetheless “relevant to this court’s due diligence analysis and may be considered as evidence related to whether Suhr exercised due diligence. . . .”
Next, Puerto faults the prosecution for failing to take “adequate preventative measures to stop [Williams] from disappearing, ” given what he characterizes as clear indications she would not be a cooperative witness. Puerto points out that a few days after the incident, Williams informed officers she did not wish him to be prosecuted. She was uncooperative at the preliminary hearing, repeatedly testifying to her lack of recollection and denying any domestic violence transpired, prompting the judge to opine that she was committing perjury. And, she requested, at the preliminary hearing, that the restraining order against Puerto be lifted because she needed his assistance in caring for the children. Given Williams’s known reluctance to cooperate with the prosecution, Puerto posits, the People should have sought issuance of a body attachment or a written promise to appear, served Williams with a subpoena at the preliminary hearing, or asked the preliminary hearing court to order her to appear at future hearings.
When the prosecution knows there is a substantial risk that an important witness will flee, the prosecutor must take adequate preventative measures to “ ‘stop the witness from disappearing.’ ” (People v. Friend (2009) 47 Cal.4th 1, 68; People v. Wilson, supra, 36 Cal.4th at p. 342.) On the other hand, it is well settled that “ ‘[t]he prosecution is not required “to keep ‘periodic tabs’ on every material witness in a criminal case....” ’ [Citations.]” (People v. Friend, supra, at p. 68; People v. Wilson, supra, at p. 342; People v. Hovey (1988) 44 Cal.3d 543, 564.)
We disagree with Puerto that the prosecution should have known there was a substantial risk Williams would flee. Williams told police shortly after the offense that she did not want Puerto to be prosecuted, but nonetheless was present at the preliminary hearing. She informed the court at the outset of the preliminary hearing that she did not wish to testify against her husband, but testified nonetheless. Thus, while the People no doubt expected Williams would recant her initial statements to police, and her testimony would be unhelpful to the prosecution, nothing in the record suggests the People should have realized her reluctance to testify would result in her disappearance. We reject Puerto’s implied premise that a witness’s expressed desire not to testify automatically puts the People on notice that he or she is a flight risk. Further, Williams spoke with police at the scene and with a detective a few days after the offense, giving no hint she would later disappear. She had lived in the same residence for over four years, and had four children, community ties that would have suggested to the People that her disappearance was unlikely. (See generally People v. Friend, supra, 47 Cal.4th at pp. 68-69 [prosecutor had no reason to know of a substantial risk witness would disappear although witness was a transient and had missed a discovery hearing; witness stayed within the general vicinity of the trial and maintained regular, albeit infrequent, contact with his father and an inspector]; People v. Wilson, supra, 36 Cal.4th at p. 342 [although defendant described witness as unreliable and of suspect credibility, there was no evidence prosecutor knew there was a substantial risk witness would disappear]; cf. People v. Louis (1986) 42 Cal.3d 969, 989, 992-993 [no due diligence where, shortly before trial, and in order to procure witness’s testimony, prosecution released witness who was in custody on unrelated theft charges on his own recognizance, to visit an unspecified friend at an unspecified location, despite knowledge of substantial flight risk].)
Furthermore, Puerto fails to persuade us that the measures he suggests would have been effective. (People v. Sanders, supra, 11 Cal.4th at p. 523 [whether the witness would have been produced had due diligence been exercised is a factor in inquiry].) Given that Williams was clearly making a calculated effort to avoid testifying, it is speculative to believe that serving her with a subpoena or ordering her to appear at an earlier point in the proceedings would have been effective. (See People v. Diaz, supra, 95 Cal.App.4th at p. 707.) It “ ‘is unclear what effective and reasonable controls the People could impose upon a witness who plans to leave the state, or simply “disappear, ” long before a trial date is set.’ [Citation.]” (People v. Wilson, supra, 36 Cal.4th at p. 342; People v. Hovey, supra, 44 Cal.3d at p. 564; People v. Diaz, supra, at p. 706.) In sum, the trial court correctly concluded that the People exercised due diligence to obtain Williams’s testimony at trial.
d. Prior opportunity to cross-examine.
Puerto next contends that he did not have an opportunity to cross-examine Williams at the preliminary hearing with a motive or interest sufficiently similar to that existing at trial. We disagree.
As noted, former testimony is admissible under Evidence Code section 1291, and as against a confrontation clause challenge, only when the party against whom the former testimony is offered was a party to the prior proceeding and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that existing at trial. (Evid. Code, § 1291, subd. (a)(2).) “What [is] significant for the purpose of meeting the requirements of Evidence Code section 1291 and preserving defendant’s right of confrontation [is] defendant’s opportunity for cross-examination.” (People v. Williams, supra, 43 Cal.4th at p. 626, italics omitted.) “ ‘[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.” [Citation.] The “ ‘motives need not be identical, only “similar.” ’ ” [Citation.]’ ” (People v. Valencia, supra, 43 Cal.4th at pp. 293-294.)
Puerto, obviously, was a party to the matter at the preliminary hearing and Williams’s testimony was offered against him. (Cf. In re Jones (1996) 13 Cal.4th 552, 572-573 [trial counsel should have moved to exclude prior testimony that had been offered only against a co-defendant, giving defense counsel little interest in cross-examining witness].) He was present at the preliminary hearing and represented by counsel. (People v. Williams, supra, 43 Cal.4th at p. 627.) He was facing the identical charges at trial. At the preliminary hearing, the court made no rulings substantially limiting cross examination of Williams. (See People v. Valencia, supra, 43 Cal.4th at p. 294.) At the preliminary hearing, Williams was asked about the incident based on the information she and Towers had given to police. No new or unexpected testimony or evidence was produced at trial. No new facts about which Williams might have testified came to light in the interim between the preliminary hearing and trial. Puerto’s motive in cross examining her at the preliminary hearing was similar, if not identical, to his interests at trial: he hoped to elicit exculpatory testimony and have her recant her statements to officers, thereby discrediting the People’s theory. (See People v. Carter (2005) 36 Cal.4th 1114, 1173 [Evidence Code section 1291 satisfied where defendant’s motive and interest in cross-examining witness at the preliminary hearing was “closely similar, if not identical to” his objectives at trial, i.e., to discredit the prosecution’s theory].) Indeed, at the preliminary hearing Puerto’s counsel questioned Williams about her injuries, giving her the opportunity to provide innocent explanations for her red neck and face and injured lip. Counsel elicited that during the couple’s argument, neither spouse touched the other. Counsel further elicited that Williams had not been taking her prescribed depression medication at the time of the argument, opening the door for an argument denigrating her credibility when she spoke to officers. In short, at the preliminary hearing Puerto attempted to discredit Williams’s initial statements to police, just as he would have done at trial.
Puerto’s argument to the contrary is not persuasive. He asserts that his motive and interest was different at the preliminary hearing because, at that proceeding, Williams’s testimony “was wholly exculpatory” and thus he had no “reason... to cross-examine or otherwise probe her direct examination testimony.” Essentially, his argument is that he had no motive to impeach or challenge Williams at the preliminary hearing. But he would have had no motive to do so at trial either. Instead, his objective at trial, as at the preliminary hearing, would have been to bolster Williams’s exculpatory testimony, including her recantation of her comments to officers, not to conduct a searching cross-examination into the details of the incident. Puerto’s argument also ignores the precept, noted ante, that a defendant’s interest at a second proceeding is not dissimilar simply because events subsequent to the preliminary hearing might have led counsel to alter the “nature and scope” of his or her cross-examination. (People v. Valencia, supra, 43 Cal.4th at p. 293.)
Taken to its logical conclusion, Puerto’s argument is that Evidence Code section 1291’s prior opportunity prong can be satisfied only when the witness at the prior proceeding was obviously adverse to the defendant. Puerto acknowledges that there is no authority directly on point, and we are aware of none. We find his attempts to analogize to other authorities, including United States v. Salerno (1992) 505 U.S. 317and U.S. v. DiNapoli (2d Cir. 1993) 8 F.3d 909, 910-915, unpersuasive. As relevant here, Salerno held only that a “ ‘similar motive’ ” requirement was a prerequisite to admission under Federal Rules of Evidence, rule 804(b)(1), the federal evidentiary rule analogous to Evidence Code section 1291. On that point, there is no dispute: the trial court here did not find, and the People do not contend, that Evidence Code section 1291’s “similar motive and interest” requirement was somehow inapplicable.
In Salerno, several defendants were indicted for various Mafia-related violations of the Racketeer Influenced and Corrupt Organizations Act involving the New York construction industry and concrete supply. (United States v. Salerno, supra, 505 U.S. at p. 319.) During grand jury proceedings, two immunized witnesses––DeMatteis and Bruno––denied that they or their company had participated in any illegal activities. At trial, the government sought to prove otherwise through other evidence. In rebuttal, the defendants called DeMatteis and Bruno, believing that their grand jury testimony tended to exculpate the defendants. When DeMatteis and Bruno invoked the Fifth Amendment, the defendants sought to introduce their grand jury testimony under Federal Rules of Evidence, rule 804(b)(1). The District Court refused to admit the testimony, concluding that the government had not had a similar motive to develop the witnesses’ testimony at the grand jury proceedings as it did at trial. (Id. at pp. 319-320.) The Second Circuit reversed, concluding that to maintain “ ‘adversarial fairness, ’ ” the “ ‘similar motive’ ” requirement was inapplicable when the government obtains immunized testimony in a grand jury proceeding from a witness who refuses to testify at trial. (Id. at p. 320.) The United States Supreme Court agreed with the District Court and reversed the Second Circuit, holding that the “ ‘similar motive’ ” requirement was an element necessary to admission of the testimony and could not be dispensed with in the name of adversarial fairness. (Id. at p. 322.) The court did not decide whether the United States had had a “ ‘similar motive’ ” at the grand jury proceeding, but remanded the matter for determination of that question. (Id. at pp. 324-325.)
Nor does DiNapoli compel a different result. In DiNapoli, the court considered the question left open in Salerno, that is, the nature of the “ ‘similar motive’ ” requirement for purposes of Federal Rules of Evidence, rule 804. The Second Circuit concluded the issue was fact specific, but formulated a somewhat stringent test: “[I]n assessing similarity of motive under Rule 804(b)(1) [the court] must consider whether the party resisting the offered testimony at a pending proceeding had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue.” (U.S. v. DiNapoli, supra, 8 F.3d. at pp. 914-915.) DiNapoli concluded the government had not had similar motives to impeach the two witnesses who had testified at a grand jury proceeding as would have existed at trial because, at the time of the witnesses’ grand jury testimony, the defendants had already been indicted and the grand jurors had already indicated they did not find the witnesses in question credible. (Id. at p. 915.) The grand jury proceeding in DiNapoli is obviously dissimilar to the preliminary hearing at issue here. Evidence Code section 1291, not a federal rule of evidence, is at issue, and in any event the Second Circuit’s test has not been universally accepted even by the federal courts. (See U.S. v. McFall (9th Cir. 2009) 558 F.3d 951, 961-963.) DiNapoli is, of course, not binding on this court. (People v. Zapien (1993) 4 Cal.4th 929, 989; People v. Williams (1997) 16 Cal.4th 153, 190 [decisions of lower federal courts interpreting federal law are not binding on state courts].) We decline to adopt the DiNapoli formulation.
Instead, we find cases such as People v. Harris (2005) 37 Cal.4th 310, controlling. There, the trial court allowed the preliminary hearing testimony of an unavailable witness, Canto, to be admitted at trial. The defendant argued that at the preliminary hearing, he was unaware of Canto’s illegal drug activities, and consequently he did not have an opportunity to cross-examine with the same interest and motive as he would have had if Canto been available at trial. The defendant asserted that the preliminary hearing testimony gave the jury a false and misleading impression of Canto’s credibility, undermining his right to a fair trial. Harris rejected this contention. After noting that the defendant’s factual premise was incorrect (he had personally engaged in a drug deal with Canto) and reiterating that a defendant’s interest in a second proceeding is not dissimilar to that in a first simply because events have led counsel to alter the nature or scope of cross examination, the court observed: “ ‘Both the United States Supreme Court and [the California Supreme Court] have concluded that “when a defendant has had an opportunity to cross-examine a witness at the time of his or her prior testimony, that testimony is deemed sufficiently reliable to satisfy the confrontation requirement [citation], regardless whether subsequent circumstances bring into question the accuracy or the completeness of the earlier testimony.” ’ [Citations.] Defendant’s interest and motive in cross-examining Canto at the preliminary hearing were similar to those at trial: to challenge Canto’s credibility and discredit his account of the shooting.” (People v. Harris, supra, at p. 333.) Likewise, here the trial court did not err by admitting Williams’s preliminary hearing testimony as the elements of Evidence Code section 1291, and therefore Puerto’s confrontation clause rights, were satisfied.
Given our conclusion, we need not reach the parties’ arguments regarding whether admission of Williams’s preliminary hearing testimony was prejudicial.
2. Admission of evidence regarding prior domestic violence.
Puerto next complains that admission of evidence that Williams told Deputy Gabriel that there was a history of domestic violence between the parties was prejudicial error. Prior to trial, defense counsel sought to exclude this evidence as hearsay. The prosecutor indicated she did not intend to introduce the evidence, and the court opined, “It’s not relevant at this point.” The court ordered that “Officer Gabriel is not to get in that area about prior incidents....”
Later in the proceedings the trial court changed its ruling and, over defense objections that the evidence was unduly prejudicial and irrelevant, allowed Deputy Gabriel to testify to Williams’s statement. The court also admitted a portion of Williams’s preliminary hearing testimony in which she denied making the statement to Gabriel, again over the objection of the defense.
Puerto contends that admission of the testimony was prejudicial error. He asserts that: (1) the evidence was substantially more prejudicial than probative under Evidence Code section 352; (2) the trial court failed to appropriately balance the prejudicial effect of the evidence against its probative value under Evidence Code section 352; (3) the trial court’s ruling was arbitrary because the court relied upon the prosecutor’s unsupported offer of proof; and (4) admission of the evidence was fundamentally unfair in light of the trial court’s initial ruling excluding it. The People counter that Puerto’s claim has been forfeited in part.
We need not reach these contentions, however, because even assuming for purposes of argument that the evidence was admitted in error, it was harmless under any standard. The erroneous admission of evidence requires reversal only if it is reasonably probable that the appellant would have obtained a more favorable result had the evidence been excluded. (Evid. Code, § 353, subd. (b); People v. Earp (1999) 20 Cal.4th 826, 878; People v. Avitia (2005) 127 Cal.App.4th 185, 194.) Even if the matter is reviewed under the Chapman standard of review, which Puerto incorrectly asserts applies, any error was harmless.
The challenged testimony was but a small and brief part of the People’s case. Deputy Gabriel’s testimony consisted of one-word answers to two questions: “[Prosecutor]: Deputy, did Ms. Amber Williams indicate to you whether or not there was a prior history of domestic violence? [¶] [Deputy Gabriel]: Yes. [¶] [Prosecutor]: And when you say yes, did she indicate yes there was a prior history of domestic violence? [¶] [Deputy Gabriel]: Yes.” The challenged portion of Williams’s preliminary hearing testimony was likewise brief: “[Prosecutor]:... Did you tell Deputy Gabriel that the defendant had struck you several times in the past, but you had never reported it? [¶] [Williams]: No, I don’t recall saying that. [¶] [Prosecutor]: Do you recall telling Deputy Gabriel that there was a history of domestic violence, but you had never reported it in the past? [¶]... [¶] [Williams]: No, I don’t remember saying that.” As Puerto points out, the challenged testimony was quite vague. It lacked significant substance: there was no showing of any specific act of domestic violence. There was no testimony about prior injuries or specific events, and no indication of how many times or how often any prior incidents occurred. The very vagueness of the information, while undercutting its probative value, simultaneously lessened any potential inflammatory impact. Contrary to Puerto’s argument, we do not believe reasonable jurors would have concluded, based on this extremely limited evidence, that Puerto “was a chronic domestic abuser who should be punished[] notwithstanding” the fact Williams recanted.
On the other hand, the People’s evidence was strong. Towers, an unbiased witness, testified to hearing the fight and observing Williams with a bloody lip immediately afterward. Deputy Gabriel testified that Williams told him Puerto had punched and pushed her. Photographs were displayed for the jury, depicting her injuries. A few days after the incident, Williams implied to Detective Porras that Puerto had hit her, when she responded to Porras’s question by stating Puerto had not “meant to.” Puerto admitted to Detective Porras that he and Williams had pushed each other and he had placed her in a headlock (although he denied hitting her). In light of the evidence that was properly admitted, it is clear beyond a reasonable doubt that Puerto would not have obtained a more favorable result had the challenged evidence been excluded.
3. Unanimity instruction.
Puerto contends that because there was evidence of two separate physical assaults resulting in two separate traumatic conditions, and premised on two “distinct factual theories of liability, ” that is, his pushing Williams into the iron shelf, and his putting her in a chokehold and punching her, a unanimity instruction was required. He points out that the prosecutor argued to the jury that he was guilty of inflicting a traumatic condition if he inflicted any of the injuries, “whether it be the bleeding, the busted lip, the redness around her chest, or the swelling and redness to the left side of her face.”
A jury verdict must be unanimous in a criminal case. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Where the accusatory pleading charges a single offense, and the evidence shows the defendant committed more than one act that could constitute that offense, the prosecutor must elect among the crimes or the jury must be instructed that the defendant can be found guilty only if the jurors unanimously agree the defendant committed the same, specific act comprising the crime. (Ibid.; People v. Melhado (1998) 60 Cal.App.4th 1529, 1534; People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275.) The unanimity requirement is intended to eliminate the danger that the defendant will be convicted even though there is no single offense that all jurors agree he or she committed. (People v. Russo, supra, at p. 1132.) “In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.” (Id. at p. 1135.) Where required, a unanimity instruction must be given sua sponte. (People v. Dieguez, supra, at pp. 274-275.)
A unanimity instruction is not required when the evidence shows one criminal act or multiple acts in a continuous course of conduct, that is, where the acts alleged are so closely connected as to form part of one continuing transaction or course of conduct. (People v. Stankewitz (1990) 51 Cal.3d 72, 100; People v. Jantz (2006) 137 Cal.App.4th 1283, 1292; People v. Lopez (2005) 129 Cal.App.4th 1508, 1533-1534; People v. Dieguez, supra, 89 Cal.App.4th at p. 275; People v. Jenkins (1994) 29 Cal.App.4th 287, 298-299; People v. Avina (1993) 14 Cal.App.4th 1303, 1309.) The continuous conduct rule applies when a defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for jurors to distinguish between them. (People v. Stankewitz, supra, at p. 100; People v. Dieguez, supra, at p. 275.)
No unanimity instruction was required here because the pushing and punching occurred during a continuous course of conduct, in the same locale, during a brief period. Williams told Deputy Gabriel that Puerto pushed her into the shelf, causing her to hit the back of her head and fall; he then grabbed her around the neck and punched her in the face and back of the head. Her description of the attack suggested that the pushing and the punching occurred within seconds of each other. They certainly occurred during the same argument, at the same locale. Towers’s testimony suggested the entire argument lasted no more than an hour. Under similar circumstances, courts have routinely found a continuous course of conduct, obviating the need for a unanimity instruction. (See, e.g., People v. Percelle (2005) 126 Cal.App.4th 164, 182 [continuous course of conduct where defendant’s acts occurred during a one-hour period]; People v. Dieguez, supra, 89 Cal.App.4th at p. 275 [continuous course of conduct where defendant made a series of false statements during a medical visit to fraudulently obtain benefits; the statements were connected in time and purpose, were made at the same appointment, were interrelated, and were all aimed at a single objective]; People v. Haynes (1998) 61 Cal.App.4th 1282, 1296 [continuous course of conduct where acts occurred “just minutes and blocks apart and involved the same property”]; People v. Mota (1981) 115 Cal.App.3d 227, 233 [sexual assaults by three men in a van, over the course of one hour, were committed in a continuous course of conduct].) Nor does the fact the victim suffered more than one distinct injury necessarily require a unanimity instruction. (See People v. Robbins (1989) 209 Cal.App.3d 261, 265-266 [continuous course of conduct where defendant committed a variety of acts during a sexual assault, which resulted in several distinct injuries; the attack “was one prolonged assault, of which the individual blows and other indignities were inseparable components”].)
Puerto did not offer distinct defenses in the sense contemplated by the relevant authorities. He urges that the jury might have concluded Williams hurt her head and face when she accidentally tripped and fell, but might have concluded the redness on her neck and chest were due to sunburn. Contrary to Puerto’s argument, his defense to both injuries was essentially the same: he did not inflict the injuries. (See People v. Thompson (1984) 160 Cal.App.3d 220, 226 [“the defendant here offered only one defense: that he did not hit [the victim]. The essence of the jury’s task was to decide who was telling the truth, the appellant or his wife. There was no possibility of some jurors believing one defense, and some another”].) There was no instructional error.
4. Cumulative error.
Puerto contends that the cumulative effect of the purported errors undermined the fundamental fairness of the trial. As we have “ ‘either rejected on the merits defendant’s claims of error or have found any assumed errors to be nonprejudicial, ’ ” we reach the same conclusion with respect to the cumulative effect of any purported errors. (People v. Cole (2004) 33 Cal.4th 1158, 1235-1236; People v. Butler (2009) 46 Cal.4th 847, 885.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J. CROSKEY, J.