Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Arthur Harrison, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, Karl T. Terp and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
In an amended information the District Attorney of San Bernardino County charged defendant and appellant Vel Anthony Smith (hereafter defendant) with the attempted murder of Chala L. (count 1), assault with a firearm on Chala L. (count 2), and assault with a firearm on Rochelle Collins (count 3). The information also included allegations in connection with count 1 that defendant personally discharged a firearm causing great bodily injury, personally discharged a firearm, and personally used a firearm within the meaning of Penal Code section 12022.53, subdivisions (d), (c), and (b), respectively. In connection with counts 2 and count 3, the information alleged that defendant personally used a handgun within the meaning of section 12022.5, subdivision (a). The information also alleged that defendant had previously been convicted of robbery, a serious or violent felony (also commonly referred to as a strike) within the meaning of sections 667, subdivision (b) and 1170.12, subdivision (a), and a serious felony within the meaning of section 667, subdivision (a)(1).
All further statutory references are to the Penal Code unless indicated otherwise.
The amended information also included criminal street gang enhancements that the prosecutor dismissed during trial.
Defendant’s first jury found him not guilty on count 3, but the jurors were unable to reach verdicts on the two remaining counts involving Chala L. Defendant’s second jury found him not guilty of attempted murder as alleged in count 1, but guilty of assault with a firearm as alleged in count 2. The second jury also found true the section 12022.5 gun use allegation. In a bifurcated proceeding, the jury found the strike prior and the prior serious felony allegations to be true. The trial court sentenced defendant to serve a total term of 23 years in state prison comprised, in part, of the upper term of four years, doubled to eight years under section 667, subdivision (e)(1) and 1170.12, subdivision (c)(1), and the upper term of 10 years on the section 12022.5, subdivision (a) gun use enhancement.
In this appeal from the judgment entered following his second trial, defendant contends that we must reverse the judgment because the trial court violated defendant’s right under both the state and federal Constitutions to confront and cross-examine witnesses when it found that Chala L. was unavailable to testify at defendant’s retrial and permitted her testimony from the first trial to be admitted into evidence. We agree with this contention, for reasons we explain below, and therefore will reverse the judgment. To provide guidance in the event defendant is retried following our remand of this matter, we will address the claims defendant raises that could recur in such a proceeding, namely his claim that the trial court incorrectly instructed the jury with respect to the limited purpose for which it could consider gang evidence and his claim that the prosecutor committed error under Griffin v. California (1965) 380 U.S. 609 (Griffin), by improperly commenting during closing argument on the fact that defendant invoked his constitutional right against self-incrimination. Our reversal of the judgment renders defendant’s claim of sentencing error moot, as defendant acknowledges by raising the claim as an alternative to the claims that challenge the jury’s verdict.
Defendant also filed a notice of appeal in a probation revocation proceeding, case No. FSB46671, in which the trial court revoked defendant’s probation, after finding him in violation thereof, and sentenced him to a term of three years in state prison, to be served concurrent to the term imposed in the shooting case (case No. FSB51054). Defendant does not mention the probation revocation proceeding in his briefs, least of all raise any issue regarding that proceeding. We construe defendant’s silence as an abandonment of his appeal in that matter and therefore will affirm the judgment in that case.
FACTS
On June 28, 2005, then 16-year-old Chala L. was among a group of young women gathered outside an apartment complex in San Bernardino when a man pointed a gun and fired shots, one of which hit Chala L. in the hip. Chala spent several days in the hospital recovering from her injury. About a week after the shooting, Chala and her mother were interviewed by a police detective. During that interview, Chala recounted what had happened and identified defendant as the shooter. In particular, Chala told the detective that YT, whom Chala also knew as Anthony, was the person who fired the shots that hit her in the leg. Chala identified YT from a photo lineup the detective prepared. Defendant is the person depicted in the photo Chala identified as YT.
By the time of his preliminary hearing and first trial, Chala was obviously reluctant to testify. She denied that she had told the police detective that defendant was the shooter, and she would not identify defendant in court. By the time of the second trial, Chala could not be located. Her previous trial testimony, along with the videotape of her statements to the police, and her preliminary hearing testimony were all introduced into evidence at the second trial.
DISCUSSION
We first address defendant’s claim that the trial court violated defendant’s right to confront and cross-examine witnesses by declaring Chala L. unavailable as a witness and allowing her testimony from the first trial to be introduced into evidence.
1. UNAVAILABLE WITNESS
The prosecutor was unable to locate Chala L., and therefore could not serve her with a subpoena to appear and testify at defendant’s second trial. Consequently, the prosecutor made a motion to introduce Chala’s testimony from the first trial into evidence at the second trial. Defendant objected to the introduction of Chala’s prior testimony, asserting that the prosecutor had not exercised due diligence in attempting to locate and subpoena her to appear at the second trial. Following a hearing at which two district attorney investigators testified regarding their efforts to locate Chala, the trial court found that the prosecutor had exercised due diligence. Accordingly, the trial court found Chala’s prior testimony was admissible in evidence at the second trial. Defendant contends the trial court erred. We agree, for reasons we now explain.
“A criminal defendant has the right under both the federal and state Constitutions to confront the witnesses against him. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) This right, however, is not absolute. The high court recently reaffirmed the long-standing exception that ‘[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.’ (Crawford v. Washington (2004) 541 U.S. 36, 59 [158 L.Ed.2d 177, 124 S.Ct. 1354]; see People v. Cromer (2001) 24 Cal.4th 889, 892 . . . .) Evidence Code section 1291 codifies this traditional exception. [Citation.] When the requirements of Evidence Code section 1291 are met, ‘admitting former testimony in evidence does not violate a defendant’s right of confrontation under the federal Constitution. [Citations.]’ [Citation.]” (People v. Wilson (2005) 36 Cal.4th 309, 340, quoting People v. Mayfield (1997) 14 Cal.4th 668, 742.)
“Evidence Code section 1291, subdivision (a)(2), provides that former testimony is not rendered inadmissible as 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.’ In turn, Evidence Code section 240, subdivision (a)(5), states a declarant is ‘unavailable as a witness’ if the declarant is ‘[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.’” (People v. Wilson, supra, 36 Cal.4th at p. 341.) Because Chala testified at defendant’s first trial, and was subjected to full cross-examination, the only issue in this appeal is whether the prosecutor used due diligence in its effort to locate and subpoena Chala to appear at defendant’s second trial.
“The term ‘reasonable diligence’ or ‘due diligence’ under Evidence Code section 240, subdivision (a)(5) ‘“connotes persevering application, untiring efforts in good earnest, efforts of a substantial character. [Citations.]”’ [Citation.] Considerations relevant to this 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. [Citation.] We independently review a trial court’s due diligence determination. [Citation.]” (People v. Wilson, supra, 36 Cal.4th at p. 341, quoting People v. Cromer, supra, 24 Cal.4th at pp. 898, 901, 904.)
According to the evidence presented in the trial court, after the jury was unable to reach verdicts on the counts involving Chala L. in defendant’s first trial, the trial court declared a mistrial on June 8, 2006. The court then set defendant’s retrial for July 24, 2006, and pretrial on July 14. The parties confirmed the July 24, 2006, trial date at the pretrial hearing on July 14. On July 21, trial was continued to August 2, 2006. On August 2, 2006, the prosecutor made a motion to introduce Chala’s prior testimony into evidence in the second trial and the trial court conducted a hearing to determine the issue of due diligence. At that hearing, district attorney investigator Paul Garcia testified in pertinent part that on July 21 he served a subpoena on Chala L.’s mother to bring Chala, who was still under the age of 18 and therefore a minor, to court on “July 25 [sic].” Chala was not at home when he served that subpoena and, according to Investigator Garcia, her mother said that Chala would “probably” be moving out “pretty soon” but she did not know where Chala would be going.
Investigator Christine Murillo testified in pertinent part that she unsuccessfully tried to serve a subpoena on Chala’s mother sometime in July. Chala turned 18 years old on July 23, so around July 25, Murillo tried to serve Chala personally, by going to Chala’s mother’s house, which was Chala’s last known address. Chala’s mother told Murillo that Chala had moved out but that she did not know where Chala was living or how to contact her. Her mother told the investigator that Chala did not have a job, and was not attending school. Investigator Murillo left her card with Chala’s mother. The investigator then checked “Cal photo” to see if Chala had an identification card or driver’s license. She also checked Department of Motor Vehicle (DMV) records for vehicle registration information, and the “county system” for recent arrest information. Investigator Murillo found a traffic citation issued to Chala in January 2006, but the car Chala had been driving at the time had last been registered 16 years earlier to a man in Yuba City, California. Investigator Murillo also contacted Chala’s high school, and found out that although Chala had registered for summer school, she had not attended classes. On July 31, the investigator contacted Chala’s mother again, but she still did not have any information on Chala’s whereabouts. Based on the noted testimony, the trial court found that, although there was more that could have been done, the prosecutor nevertheless used due diligence in attempting to secure Chala’s attendance at trial.
As previously discussed, a due diligence finding depends on the particular circumstances of each case. In this case, Chala’s testimony was the only evidence that connected defendant with the shooting, and therefore she was a critical witness for the prosecution. Moreover, Investigator Murillo acknowledged that neither Chala nor her mother had been particularly cooperative in the past. Despite the importance of her testimony, and her acknowledged reluctance to cooperate, the district attorney did not make an effort to locate Chala and serve her with a subpoena for trial until July 21, only three days before trial was then set to begin. Because of Chala’s importance to the prosecutor’s case, and her known reluctance to cooperate, the prosecutor’s effort to locate Chala was not initiated in a timely manner. Although the trial date was continued for a week, the district attorney apparently made no effort to locate Chala between July 21 and July 25, even though Chala’s mother had alerted Investigator Garcia to the possibility that Chala would be moving soon, presumably a reference to the fact that Chala would turn 18 on July 23. Knowing that Chala was about to turn 18, that she would most likely be moving from her mother’s home, and that she was not particularly cooperative, the district attorney could not afford to waste any time in locating Chala. At the very least, return visits to Chala’s mother’s house during that period were in order.
Between July 25 and the start of trial on August 2, the only effort made to locate Chala was to check information databases, in particular Cal photo, the DMV, and local arrest records. Those sources, however, were not likely to produce any results, first, because there was no evidence presented to show that Chala owned a car but even if she did, it is not likely that within a week of moving she would have notified the DMV of an address change. For the same reason, it was not likely that Cal photo would have information on Chala’s new address or whereabouts because, assuming Chala had a driver’s license or identification card, she was not likely to immediately update that information with the DMV. It occurs to us, given the circumstances of this case, that the prosecutor should have contacted neighbors and associates of Chala’s for information on her whereabouts once she moved out of her mother’s house.
The prosecutor knew the names of some of Chala’s friends and relatives because they were present at the gathering where Chala was shot.
Due diligence in locating a witness requires perseverance “of a substantial character,” and untiring efforts “in good earnest.” (People v. Wilson, supra, 36 Cal.4th at p. 341.) The evidence presented in the trial court does not support the finding that the district attorney exercised due diligence in attempting to locate and secure Chala’s attendance at trial. In our view, the district attorney’s effort was superficial, at best, and was not likely to produce any useful result. Due diligence requires more than merely going through the motions. The effort undertaken must also be likely to uncover useful information. The prosecutor’s effort in this case was neither substantial nor earnest. Consequently, we must conclude that the trial court erred by admitting the transcript of Chala’s prior trial testimony into evidence at this second trial.
Because Chala’s testimony from defendant’s first trial was the only evidence that connected defendant with the crime, and we conclude that her previous testimony should not have been admitted, we must reverse the judgment in this case. We assume that the prosecutor will try defendant again following our reversal and remand. In order to provide guidance in the event of a retrial, we will briefly address the other issues defendant raises that are pertinent to that proceeding.
2. GANG EVIDENCE
Defendant contends that the trial court gave an erroneous instruction limiting the purpose for which the jury could consider evidence that defendant was a gang member. That instruction was necessary because, over defendant’s objection under Evidence Code section 352, a police detective testified, in pertinent part, that in 2003 he had contact with a person known as YT, and based on that contact, the detective prepared a gang card, or what the police call a “smash card.” The detective identified Exhibit 65 as a copy of the smash card in question, and testified that the card shows that “Anthony Vel Smith [sic]” is the person known as YT, and that defendant is “Anthony Vel Smith [sic].” In addition, the detective confirmed that he had obtained the information contained on the smash card by talking with defendant, that defendant identified himself to the detective as YT, and that defendant said he was affiliated with the Five Times, or 5x, gang, and that Five Times is a criminal street gang.
On cross-examination the police detective acknowledged that defendant had not admitted that he was a member of a gang and that the detective had made that determination through other sources of information.
Over defendant’s objection, the trial court instructed the jury that, “You may consider evidence of gang activity only for the limited purpose of deciding: [¶] 1. Whether the defendant was the person who committed the crimes charged; and [¶] 2. As possible motivation for a witness changing or altering her testimony if you conclude that the witness changed or altered her testimony. [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.”
Defendant apparently proposed his own jury instruction on the issue, which the trial court rejected as being too narrow. That instruction is not included in the record on appeal.
In our view, evidence of defendant’s gang affiliation should not have been introduced at trial because it was not relevant to any issue, but even if it were, its probative value was substantially outweighed by its potential for prejudice and therefore should have been excluded under Evidence Code section 352. The issue at trial was whether defendant was the person who shot Chala. The evidence relevant to that issue is that Chala identified the shooter as a person she knows as YT and defendant goes by the nickname YT. The fact that defendant also apparently was affiliated with a gang did not add anything to the identification of defendant as the person who shot Chala. In finding otherwise, the trial court mistakenly believed that Chala had mentioned defendant’s gang affiliation in her previous testimony. In fact, the only reference to defendant’s purported gang affiliation is contained in Chala’s police interview and consists of her statement, in response to being asked if she knew where YT lived, that he is from “Five, 5th Street . . . .” At that point the interviewing police officer interjected, “So, he’s from Five Times?” Chala responded, “Yeah.”
The above noted brief, and in our view entirely innocuous, reference to Fifth Street and Five Times did not warrant the introduction of evidence regarding defendant’s gang affiliation. That reference could easily have been redacted from Chala’s statement to the police, thereby eliminating the entire issue. Moreover, there was no evidence to suggest that Chala failed to testify at trial or that she changed her previous testimony because of defendant’s gang affiliation. As evidenced by her statement to the police detective, Chala and her mother both were fearful of retaliation if Chala testified but not because defendant was a gang member. Again, the previously quoted exchange is the only mention of defendant’s gang involvement made during that interview. Retaliation is not a motivation limited to gang members and is common to criminals of all types. Chala’s fear for her own safety and that of her family could easily have been addressed without mentioning defendant’s purported gang involvement. In short, the gang evidence should not have been admitted into evidence, and in any retrial following our remand of this matter, the trial court should exclude that evidence unless the prosecutor can present additional evidence and thereby render the gang evidence more probative than prejudicial. Our conclusion moots defendant’s challenge to the jury instruction.
Griffin, supra, 380 U.S. 609.
In closing argument, defendant objected and moved for a mistrial after the prosecutor urged the jurors to restore Chala’s faith in society because, “although no other adults, nor the shooter himself came forward to own up to what they [sic] did that day, prove to her that some people do the right thing.” The trial court denied defendant’s motion. Defendant contends that the italicized statement is improper because it constitutes a comment on defendant’s failure to testify at trial, and therefore infringes on defendant’s exercise of his Fifth Amendment right against self-incrimination. Because we are reversing defendant’s conviction, and he could face a possible retrial on remand, we will briefly address this claim in order to provide guidance on remand.
Griffin, supra, 380 U.S. 609, 615, precludes direct or indirect comment on the defendant’s exercise of the Fifth Amendment privilege against self-incrimination. Without running afoul of Griffin, a prosecutor may comment on the state of the evidence, and on the defendant’s failure to introduce material evidence, or call logical witnesses. (People v. Morris (1988) 46 Cal.3d 1, 35-36.) However, a prosecutor may not argue, under the guise of commenting on the evidence, that there is no evidence to refute the prosecutor’s case if the defendant is the only person who could have provided that evidence. (People v. Morris, supra, at p. 36.) For example a prosecutor may not argue that there has been no “denial” that the defendant was at the scene of the crime because although “[a]ny witness could ‘explain’ the facts, . . . only defendant himself could ‘deny’ his presence at the crime scene.” (People v. Vargas (1973) 9 Cal.3d 470, 476.)
Defendant contends that because the prosecutor argued that defendant was the shooter, the above italicized statement is an implicit comment on defendant’s failure to deny his guilt. Although the exhortation is not obvious, we nevertheless agree with defendant that a juror could construe the prosecutor’s argument as a condemnation of defendant for either failing to admit his participation in the shooting or failing to deny it and identify the real culprit. As such, the argument is an improper comment on defendant’s right to remain silent and therefore it runs afoul of Griffin. On remand the prosecutor should refrain from repeating the mistake. In short, although the prosecutor may urge the jurors to vindicate Chala’s act of courage in coming forward to identify defendant, the prosecutor should refrain from arguing that no one came forward to take responsibility for the shooting.
DISPOSITION
The judgment is case No. FSB46671 is affirmed. The judgment in case No. FSB51054 is reversed and the matter is remanded to the trial court for a new trial.
I concur: Gaut, J., RICHLI, J.
I must respectfully dissent from each and every holding of the majority opinion.
In my view, the prosecution proved that it had used due diligence to locate missing witness Chala L.
Moreover, the trial court properly admitted evidence that defendant was a member of the “Five Times” gang, both to corroborate Chala’s initial identification of him and to explain why she later recanted that identification.
Finally, the remark by the prosecutor during closing argument that defendant now characterizes as an unconstitutional comment on his failure to testify was plainly harmless.
Because I would affirm with respect to the conviction, I must also consider defendant’s claim that the imposition of upper term sentences based on trial court factfinding violated the Sixth Amendment; however, the trial court was authorized to find such facts under People v. Black (2007) 41 Cal.4th 799.
This leaves only defendant’s claim that there is a clerical error affecting two minute orders and the abstract of judgment. The People concede this error, and their concession is well founded. Accordingly, I would direct the trial court to correct this error; otherwise, however, I conclude that well-established law mandates the affirmance of the judgment.
The majority’s statement of facts, while terse, is basically accurate. I will discuss additional facts below, however, as they become relevant.
I THE PROSECUTION’S DUE DILIGENCE IN TRYING TO LOCATE CHALA
I dissent from part 1 of the majority opinion (maj. opn., ante, at pp. 4-10), which holds that the trial court erred by finding that the prosecution had used due diligence to locate Chala, and therefore it also erred by admitting Chala’s former testimony.
A. Additional Factual and Procedural Background.
The complaint in this case was filed on July 21, 2005. On March 13, 2006, the trial court held a preliminary hearing, at which Chala appeared and testified, although her testimony was evidently evasive.
On May 31, 2006, a jury trial began. Once again, Chala appeared and testified, although again, her testimony was evidently evasive. That jury was unable to reach a verdict on two out of three counts. The trial court declared a mistrial. On June 8, 2006, it set a new trial date of July 24, 2006.
On or about July 15 or 16, 2006, prosecution investigator Paul Garcia went to Chala’s home and served her mother, Claudia Walker, with a subpoena for Chala’s appearance.
On July 21, 2006, at 8:35 a.m., the trial court granted a prosecution motion for a continuance and continued the trial date to August 2, 2006.
Also on July 21, 2006, prosecution investigator Garcia went to Walker’s home and served her with a subpoena for Chala’s appearance on July 25. Chala was not home at the time. Walker told Investigator Garcia that Chala would be moving out “pretty soon,” but she (Walker) did not know where she would be moving to.
This may have been a misrecollection on the part of Investigator Garcia, as neither the trial nor any other hearing in the case was ever set for July 25.
On July 25, 2006, Investigator Christine Murillo went to Walker’s home again in an attempt to serve a subpoena on Chala. Walker told her that on July 23, 2006, Chala had turned 18 and had moved out. She did not know Chala’s current address or phone number. She said that Chala was not going to school, did not have a job, and did not have a cell phone.
On July 31, 2006, Investigator Murillo talked to Walker again, but she did not have any new information.
In an effort to find Chala, Investigator Murillo checked to see whether she had a California driver’s license or identification card; she did not. She checked to see whether any vehicles were registered to her; there were none. She checked whether Chala had had any arrests in San Bernardino County; she did not. She did find that, in January 2006, Chala had received a traffic ticket. The car involved was registered to one Jose Casarez, at an address in Yuba City; moreover, the registration had expired 16 years earlier. Finally, she checked with Chala’s last known high school; it reported that she had been scheduled to graduate in June 2006 but had not done so. She had also enrolled in summer school but had not attended.
Investigator Murillo did not ask Walker for Chala’s Social Security number. With a Social Security number, she could have checked Chala’s employment through the Employment Development Department. Its records, however, would have been current only through the previous quarter — i.e., spring 2006.
Investigator Murillo admitted being aware that Chala and Walker had “never been very cooperative . . . .”
B. Analysis.
A criminal defendant has the right “to be confronted with the witnesses against him . . . .” (U.S. Const., 6th Amend.; see also Pointer v. Texas (1965) 380 U.S. 400, 403 [85 S.Ct. 1065, 13 L.Ed.2d 923] [“the Sixth Amendment’s right of an accused to confront the witnesses against him . . . is made obligatory on the States by the Fourteenth Amendment”].)
The confrontation clause “bars ‘admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” (Davis v. Washington (2006) 547 U.S. 813, 821 [126 S.Ct. 2266, 165 L.Ed.2d 224], quoting Crawford v. Washington (2004) 541 U.S. 36, 53-54 [124 S.Ct. 1354, 158 L.Ed.2d 177].)
California law similarly provides that a declarant’s former testimony is inadmissible unless the declarant is unavailable as a witness. (Evid. Code, §§ 1200, 1291.) The declarant is unavailable if 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.” (Evid. Code, § 240, subd. (a)(5).)
“The term ‘reasonable diligence’ or ‘due diligence’ . . . ‘“connotes persevering application, untiring efforts in good earnest, efforts of a substantial character. [Citations.]’ [Citations.] Considerations relevant to this 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. [Citation.] We independently review a trial court’s due diligence determination. [Citation.]” (People v. Wilson (2005) 36 Cal.4th 309, 341, quoting People v. Cromer (2001) 24 Cal.4th 889, 904.)
Preliminarily, there is a lurking issue here concerning how a subpoena for a minor must be served. On July 21, a subpoena for Chala was served on Walker; if this was effective, then arguably the prosecution did all that it was required to do.
Penal Code section 1328 provides: “If service is to be made on a minor, service shall be made on the minor’s parent, guardian, conservator, or similar fiduciary, or if one of them cannot be located with reasonable diligence, then service shall be made on any person having the care or control of the minor or with whom the minor resides or by whom the minor is employed, unless the parent, guardian, conservator, or fiduciary or other specified person is the defendant, and on the minor if the minor is 12 years of age or older.” (Pen. Code, § 1328, subd. (b)(1), italics added.) This appears to mean that, if the minor is 12 or older, then the subpoena must be served not only on a responsible adult, but also on the minor him- or herself.
According to Witkin, however, this language is ambiguous: “This language is subject to two possible interpretations: (1) a minor 12 years old or older must always be served; or (2) a minor of that age need not be served when it is possible to locate and serve the minor’s parent, guardian, conservator, or similar fiduciary.” (2 Witkin, Cal. Evidence (4th ed. 2000) Witnesses, § 26, p. 282; see also id. at p. 283.)
Significantly, however, Code of Civil Procedure section 416.60, concerning the service of a summons on a minor, uses essentially identical language. It provides: “A summons may be served on a minor by delivering a copy of the summons and of the complaint to his parent, guardian, conservator, or similar fiduciary, or, if no such person can be found with reasonable diligence, to any person having the care or control of such minor or with whom he resides or by whom he is employed, and to the minor if he is at least 12 years of age.” (Italics added.)
The Judicial Council Comment then makes it clear that “and” really means “and” — “If a minor is at least 12 years old . . ., service is made by delivering a copy of the summons and a copy of the complaint to him. In addition, a copy thereof must be delivered to his parent, guardian, conservator, or similar fiduciary, or, if no such person can be found with reasonable diligence, to any person having care or control of such minor, or with whom he resides, or by whom he is employed . . . .” (Judicial Council of Cal. com., reprinted at 14A West’s Ann. Code Civ. Proc. (2004 ed.) foll. § 416.60, pp. 147-148.) It characterizes this as a “double-service requirement . . . .” (Id. at p. 148.)
It follows that in this case, even though the prosecution did serve Walker, it still had to serve Chala herself. I turn, then, to whether it used due diligence in this attempt.
The majority does not find that the prosecution’s efforts to find Chala were untimely in the abstract; rather, it finds that they were untimely in light of “[her] importance to the prosecutor’s case, and her known reluctance to cooperate . . . .” (Maj. opn., ante, at p. 8.) I do agree that she was a critical witness for the prosecution. I do not agree, however, that she had demonstrated “reluctance to cooperate” — at least, in any relevant sense.
Chala had consistently been willing to cooperate by appearing and testifying. She had already done so twice — first at the preliminary hearing, and then again at the first trial. She was reluctant to cooperate only to the extent of identifying defendant as the shooter. But inasmuch as, despite her reluctance, she had appeared twice before, the prosecution had every reason to assume that she would do so a third time.
“The prosecution is not required ‘to keep “periodic tabs” on every material witness in a criminal case . . . .’ [Citation.] Also, the prosecution is not required, absent knowledge of a ‘substantial risk that this important witness would flee,’ to ‘take adequate preventative measures’ to stop the witness from disappearing. [Citation.]” (People v. Wilson, supra, 36 Cal.4th at p. 342, quoting People v. Hovey (1988) 44 Cal.3d 543, 564.)
The majority states that “the district attorney did not make an effort to locate Chala and serve her with a subpoena for trial until July 21 . . . .” (Maj. opn., ante, at p. 8.) Actually, the record demonstrates that on July 15 or 16, Investigator Garcia went to Walker’s house and served her with a subpoena for Chala. On July 21, Investigator Garcia went and served her again. In my view, it was not unreasonable for the prosecution to wait until about July 15 (not July 21) to begin attempting to subpoena Chala for a trial then set to begin on July 24. Moreover, on July 21, when the prosecution tried again, the trial had just been continued to August 2, at the prosecution’s request. It was also not unreasonable for the prosecution to make a second attempt to subpoena Chala on July 21 for a trial that it did not expect to begin until August 2.
The majority also faults the prosecution for not making any effort to find Chala between July 21 and July 25. This period, however, was little more than a weekend (July 21, 2006, was a Friday, and July 25, 2006, was a Tuesday). Admittedly, on July 21, Walker alerted the prosecution that Chala would be moving out “pretty soon . . . .” There was no evidence, however, that as of July 21, the prosecution knew that there was any connection between the fact that she was moving out and the fact that she was turning 18 on July 23. Moreover, there was also no evidence that the prosecution had any reason to think that Walker would not keep in touch with her own daughter after she moved. Walker’s statement on July 21 that “she didn’t know where [Chala] would be moving to” reasonably suggested that Chala herself did not yet know.
On July 25, 2006, of course, things started going south. Walker revealed — for the first time — the significance of July 23. She likewise revealed that she did not know her own daughter’s whereabouts. Finally, she revealed other information suggesting that Chala might be hard to find (or might even be trying to avoid testifying). Only at this point, then, did the prosecution have reason to turn to sources other than Walker.
According to the majority, at this point, “the only effort made to locate Chala was to check information databases . . . .” (Maj. opn., ante, at p. 9.) That is not entirely true — Investigator Murillo also checked with Chala’s last known high school. But in any event, what else was the prosecution supposed to do? Obviously, Chala was making a deliberate effort to drop out of sight! She did not tell her own mother where she was living. How likely is it that she told any of her “neighbors and associates”? (Ibid.) Defendant suggests that the prosecution should have contacted Chala’s sister, Unique; but if Unique could not (or would not) tell her and Chala’s mother where Chala was, how likely is it that she would tell a prosecution investigator? The same logic applies to the majority’s suggestion that the prosecution should have contacted Chala’s other “friends and relatives.” (Ibid., fn. 4.)
In People v. Wilson, supra, 36 Cal.4th 309, the defendant argued that the prosecution did not use reasonable diligence to find a missing witness because it did not attempt to locate his family, check with the post office for his forwarding address, follow up with visitors he had had in prison, or determine whether he was a party in any civil actions. (Id. at p. 341-342.) The Supreme Court nevertheless held “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.]” (Id. at p. 342, quoting People v. Cummings (1993) 4 Cal.4th 1233, 1298.) The same is true here.
II THE ADMISSION OF EVIDENCE THAT DEFENDANT WAS A GANG MEMBER
I also dissent from part 2 of the majority opinion (maj. opn., ante, at pp. 10-12), which holds that the trial court erred by admitting evidence that defendant was a gang member.
A. Additional Factual and Procedural Background.
In pretrial proceedings, the prosecution indicated that it intended to introduce “evidence of defendant’s gang affiliation and moniker.” Defense counsel objected based on Evidence Code section 352. In the alternative, he requested an unspecified limiting instruction.
Detective Jack Underhill then testified that defendant’s “nickname or moniker” was “YT” and that defendant was an active member of the Five Times gang.
On direct, Detective Underhill testified that defendant admitted being “affiliat[ed]” with Five Times. On cross, however, he testified that defendant did not admit being “a member of the gang.”
The prosecution requested an instruction that would allow the jury to consider the evidence in connection with identification, motive, and a witness’s reasons for changing his or her testimony. Defense counsel requested an instruction that would have allowed the jury to consider the evidence solely in connection with identification. The trial court refused to allow the jurors to consider the gang evidence as evidence of motive; however, it agreed to allow them to consider it “for identification purposes and the [e]ffect it may or may not have had upon the victim and her testimony.”
Thus, the trial court instructed the jury:
“You may consider evidence of gang activity only for the limited purpose of deciding:
“1. Whether the defendant was the person who committed the crimes charged; and
“2. As possible motivation for a witness changing or altering her testimony if you conclude that a witness changed or altered her testimony.
“You may also consider this evidence when you evaluate the credibility or believability of a witness.
“You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.” (Judicial Council of California Criminal Jury Instructions No. 1403.)
B. Analysis.
The majority holds that the trial court erred by admitting evidence of defendant’s gang affiliation. This is somewhat surprising, as defendant never even argues that the trial court erred by admitting this evidence; he argues only that the trial court’s limiting instruction was erroneous.
Defendant’s gang affiliation was relevant to identification. In her police interview, Chala had identified the shooter as “Anthony,” whose nickname was “YT” and who was “from Five Times.” Thus, the fact that defendant’s name was Anthony was relevant, and the fact that his moniker was YT was relevant (as the majority concedes). By parity of reasoning, the fact that he was affiliated with Five Times was relevant. In terms of probative value, the situation is no different than if Chala had told police that defendant was the shooter and a member of the Rotary Club; evidence that defendant was indeed a member of the Rotary Club would then be relevant.
Defendant’s gang affiliation was also relevant because it tended to show why Chala had changed her testimony. Even lay jurors could readily understand that a witness might be particularly leery of testifying against a gang member. The majority dismisses this with the observation that “[r]etaliation is not a motivation limited to gang members and is common to criminals of all types.” (Maj. opn., ante, at p. 12.) But not so. The solitary criminal who is arrested, convicted, and imprisoned will have no opportunity to retaliate in the foreseeable future. By contrast, a gang member has numerous cohorts who are not only free to retaliate on his behalf, but virtually obligated to do so. Thus, in other cases, witnesses who recant or testify evasively are the exception, but in gang cases, they are the rule.
The majority relies on the fact that Chala never actually said she was afraid of defendant because he was a gang member. Well, of course not; she was trying to say as little about him as possible. Nevertheless, she did tell the police that she knew he was “from Five Times.” Accordingly, the inference was not merely reasonable, but downright compelling that she was reluctant to testify against him because he was a gang member. Certainly, at a minimum, it was not an abuse of discretion for the trial court to indulge in such reasoning.
The trial court could also reasonably conclude that the probative value of the evidence was greater than its potential prejudicial effect. The evidence was crucial to Chala’s credibility. As the prosecution argued in closing, “That’s what you have to get into, Chala’s mind. Why she would change her testimony.” At the same time, the evidence did not go into any detail regarding the gang’s activities, or defendant’s activities as a gang member. Indeed, as defendant concedes, “there was no evidence of any ‘gang activity’ per se.”
Because I conclude that the evidence was properly admitted on the issue of identification and on the issue of witness credibility, I also conclude that the trial court’s limiting instruction was appropriate. Defendant complains that, because the instruction allowed the jurors to consider the gang evidence in connection with “[w]hether the defendant was the person who committed the crimes charged,” they may have understood it to mean that they could infer guilt from gang membership alone. The trial court, however, specifically instructed them, “You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.” Thus, I perceive no “reasonable likelihood that the instruction caused the jury to misconstrue or misapply the law. [Citation.]” (People v. Thornton (2007) 41 Cal.4th 391, 436.)
III REFERENCE TO DEFENDANT’S FAILURE TO TESTIFY
Unlike the majority (see maj. opn., ante, at pp. 13-14), I would not decide whether the prosecutor committed Griffin error. Even assuming she did, the error was not prejudicial; and inasmuch as I find no other grounds for reversal, I have no need to discuss the issue for the guidance of the trial court on remand.
Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106].
A. Additional Factual and Procedural Background.
Near the end of the prosecutor’s closing argument, she stated: “Chala not only lost her innocence on June 28th, 2005, but she lost her hope. [¶] And today, ladies and gentlemen of the jury, I am asking you to prove Chala wrong. To prove her wrong that she doesn’t have to be hopeless in this society. That although no other adults, nor the shooter himself came forward to own up to what they did that day, prove to her that some people do the right thing.” (Italics added.)
When the prosecutor finished, defense counsel moved for a mistrial, arguing that the quoted statements violated Griffin. The prosecutor responded that the evidence showed that there had been multiple shooters. The trial court indicated that it wanted additional legal research but added: “I am inclined to go through with argument at this point in time and point out to the jurors that the defendant . . . has every right not to testify.”
The evidence showed that defendant appeared to be acting in concert with a group of people who arrived separately, in a white Thunderbird; they fired additional shots in the same direction.
Accordingly, the trial court instructed the jury:
“I want to remind the jurors of an instruction — two instructions actually.
“The defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt.
“Do not consider for any reason at all the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.
“Regarding the presumption of innocence and the People’s burden of proof, a defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and allegation beyond a reasonable doubt.”
After the jury had retired to deliberate, the trial court reviewed a number of cases (presumably the fruits of the legal research it had requested), then ruled: “The comments by the prosecutor in this case I think are not overt. They didn’t call for an inference to be drawn. It’s along the continuing [sic; sc. “continuum of”?] conduct we prefer not to see on transcripts or to hear in court, but I don’t think it constitutes the Griffin error that is complained of. [¶] The motion for mistrial will be denied.”
B. Analysis.
“In Griffin, ‘the United States Supreme Court declared that the Fifth Amendment prohibits the prosecutor from commenting, either directly or indirectly, on the defendant’s failure to testify in his defense.’ [Citation.]” (People v. Turner (2004) 34 Cal.4th 406, 419, quoting People v. Frye (1998) 18 Cal.4th 894, 977.) “[Griffin] error requires reversal unless we can conclude it was harmless beyond a reasonable doubt. [Citations.] . . . [W]e ask whether, absent the prosecutor’s reference to [the defendant]’s failure to testify, is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty? [Citation.]” (People v. Hardy (1992) 2 Cal.4th 86, 154.) “‘“‘[I]ndirect, brief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error.’”’ [Citations.]” (People v. Monterroso (2004) 34 Cal.4th 743, 770, fn. omitted, quoting People v. Boyette (2002) 29 Cal.4th 381, 455-456.)
Recently, in People v. Brasure (2008) 42 Cal.4th 1037, the California Supreme Court held a Griffin error harmless on facts very similar to those in this case. There, in closing argument, the prosecutor asked the jury “‘to hold people like [the defendant] accountable, because he does not accept responsibility.’” (Brasure, at p. 1059.) The prosecutor then added: “‘When is he going to stand up and say, “All right. I did it. That’s me. I’m — I’m responsible for something.” Anything. He’s never done that.’” (Ibid., italics omitted.) The trial court denied the defendant’s motion for a mistrial but instructed the jury: “ . . . Before we resume with argument, let me say that there was during prior argument a reference that might be construed by the jurors as a comment on the lack of testimony in the trial from the defendant. Let me remind you of a couple of essential principles. [¶] A defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant does not testify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way. In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence.” (Id. at p. 1060.)
The Supreme Court held: “[T]he trial court’s immediate admonition to disregard the prosecutor’s comment, coupled with its full instruction, shortly thereafter, not to discuss or consider defendant’s failure to testify, cured any possible harm from the prosecutor’s comment.” (People v. Brasure, supra, 42 Cal.4th at p. 1060.) It explained: “The prosecutor’s comment was brief and somewhat ambiguous. (The prosecutor’s suggestion defendant should ‘stand up’ and take responsibility for his actions did not necessarily refer to testifying, especially as the prosecutor had just referred to private letters defendant had written in which he sought to evade responsibility.) The court’s direction not to consider the comment was immediate, unequivocal and repeated. Under these circumstances, and in light of the extremely aggravating circumstances of the crime and defendant’s attempts to suppress evidence against him, any asserted Griffin error was harmless beyond a reasonable doubt. [Citations.]” (Ibid.)
Here, similarly, the prosecutor’s comment was brief and somewhat ambiguous. As she pointed out, there had been multiple shooters; she was basically arguing that none of the other persons involved, whether as shooters, victims, or witnesses, had come forward. Moreover, she was in no way arguing that the jury should infer guilt from defendant’s failure to testify; she was merely asking the jury to “do the right thing,” unlike the shooter, no matter who he or she was. The trial court immediately and unequivocally instructed the jury not to consider, discuss, or be influenced by the fact that defendant did not testify. Admittedly, the evidence of guilt in Brasure was clearer than in this case, albeit not overwhelming. (See People v. Brasure, supra, 42 Cal.4th at pp. 1042-1044 [main witness against the defendant was an accomplice who had been given a plea bargain].) Even so, I am convinced beyond a reasonable doubt that, even absent the prosecutor’s indirect, brief, and mild comment, which was followed by a prompt admonition, the jury would have returned the same verdict.
IV THE IMPOSITION OF UPPER TERM SENTENCES
Finally, because I would affirm the conviction, I will also discuss (albeit briefly) defendant’s sentencing claim.
A. Additional Factual and Procedural Background.
The trial court selected the upper term for both the offense of assault with a firearm and the personal firearm use enhancement, citing the following factors: (1) defendant had “engaged in violent conduct indicating a serious danger to society”; (2) defendant’s prior convictions were “of increasing seriousness and certainly approaching the numerous designator”; (3) defendant was on probation when the crime was committed; and (4) defendant’s prior performance on probation was unsatisfactory. It found no mitigating factors.
The probation report had recommended a finding that the manner in which the crime was carried out indicated planning, sophistication, or professionalism. (Cal. Rules of Court, rule 4.421(a)(8).) The trial court, however, stated: “I am not sure that I agree that [it] reflects planning, sophistication or professionalism.”
B. Analysis.
The trial court can constitutionally impose the upper term, without any jury findings, based upon the defendant’s prior convictions. (People v. Black, supra, 41 Cal.4th at p. 818.) This area of permissible judicial factfinding “include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 819.) Specifically, it includes the fact that a defendant’s prior convictions are numerous or of increasing seriousness (id. at pp. 819-820); that the defendant was on probation or parole when the crime was committed (People v. Morton (2008) 159 Cal.App.4th 239, 251; People v. Yim (2007) 152 Cal.App.4th 366, 371); and that the defendant’s prior performance on probation or parole was unsatisfactory. (Yim, at p. 371.)
Finally, once the trial court properly finds any one of these factors, the defendant becomes eligible for the upper term; this authorizes the trial court to make findings on any additional relevant factors. (People v. Black, supra, 41 Cal.4th at p. 813.) Here, because the trial court found not just one, but three factors that it was permitted to find, it could properly make additional findings and impose upper terms.
V CONCLUSION
Two minute orders and the abstract of judgment indicate that a personal firearm use enhancement was found true and imposed under Penal Code section 12022.53, subdivision (b). Actually, it was found true and imposed under Penal Code section 12022.5, subdivision (a). The People concede the error. Accordingly, I would direct the trial court to correct the orders and the abstract.
Otherwise, I would affirm the judgment in its entirety.
This was in no way a contradiction. On defendant’s “SMASH card,” there was one checkbox for the ultimate conclusion that he was a gang member. There were separate checkboxes for the various criteria that went into this ultimate conclusion, including whether he affiliated with a gang. Evidently defendant admitted affiliation, but not membership.