Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County No. CRF25017. Eleanor Provost, Judge.
Philip M. Brooks, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
INTRODUCTION
On August 25, 2007, appellant/defendant David Stanton (David) shot and killed Jon Flaherty. David’s sister, Shawna Stanton (Shawna), was present during the homicide and helped him cover up the crime. David’s defense was that Flaherty had a history of violent assaults on his family and friends, David was afraid of him, and David shot Flaherty because he thought Flaherty was going to kill both Shawna and himself.
We refer to some of the parties by their first names for the sake of clarity; no disrespect is intended. (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1076, fn. 3.)
A joint jury trial was held for David and Shawna. David was charged with first degree murder (Pen. Code, § 187, subd. (a)), but the jury was unable to reach a verdict and a mistrial was declared on that count. David and Shawna were both convicted of possession of a firearm by a felon (§ 12021, subd. (a)(1)), and Shawna was convicted of being an accessory after the fact (§ 32).
All further statutory citations are to the Penal Code unless otherwise indicated.
Shawna was sentenced to three years in prison and appealed. This court corrected her sentence and otherwise affirmed her convictions. (People v. Shawna L. Stanton (F055075), unpub. opn. filed on March 24, 2009.)
The instant appeal is from David’s retrial for murder, in which the jury convicted him of second degree murder and found true the firearm enhancement (§ 12022.53, subd. (d)). David was sentenced to 15 years to life for second degree murder, plus a consecutive 25 years to life for the firearm enhancement.
On appeal, David contends the court improperly permitted the prosecution to introduce the former testimony of two witnesses to the homicide. He argues the prosecution failed to use due diligence to locate those witnesses, and the jury was improperly instructed on the consideration of their prior testimony and prior out-of-court inconsistent statements. David further argues his due process rights were violated because the jury was instructed that in evaluating his trial testimony, it could consider his failure to explain certain aspects of the evidence against him.
FACTS
Flaherty and his wife lived in San Andreas. Flaherty drove a Ford Ranger pickup truck, and kept a red kayak in the truck’s bed. In February or March 2007, David moved into Flaherty’s house.
On Friday, August 24, 2007, Flaherty and David spent the night at the residence of David’s sister, Shawna. On Saturday, August 25, 2007, David and Flaherty were supposed to go to another location to repair a car for Flaherty’s wife. Flaherty was wanted on an outstanding warrant and he was planning to turn himself in, but he wanted to fix the car so his wife could use it while he was in custody. David agreed to help with the car but failed to show up at their agreed meeting place on Saturday morning. Flaherty was angry, and called his wife 12 or 13 times and asked if she had heard from David.
Flaherty, David, and Shawna were acquainted with Mark Millard, who lived with his mother in a house on a large undeveloped parcel off Wards Ferry Road. Andrew O’Neill lived in a trailer that was parked on Millard’s property. There were several abandoned vehciles around O’Neill’s trailer, including a Chevrolet Beretta, and a second trailer that was unlocked and full of trash.
O’Neill testified that a.22-caliber semi-automatic rifle was kept in one of the unlocked cars parked by his trailer. A picture of a squirrel was carved into the rifle’s stock. David and other visitors to the property occasionally used that rifle for target practice.
Sometime between 1:00 p.m. and 1:30 p.m. on August 25, 2007, David and Shawna drove up to O’Neill’s trailer. O’Neill left around 2:30 p.m. and David and Shawna stayed on the property.
The Testiomony of Krystal Phillips and Cassidy Coffey about the homicide
When David failed to meet Flaherty at their appointed location, Flaherty got into his Ford Ranger truck and drove around the area to look for him. He met Krystal Phillips (Krystal) and Cassidy Coffey (Cassidy), and asked for their help to look for David. The women testified that Flaherty was angry at David for not showing up as he promised. Flaherty thought David was with Shawna. He told the women that Shawna was a big influence on David, and he wanted them to talk to Shawna so he could speak to David. Krystal and Cassidy agreed to help and got into his truck. Krystal testified that as they were driving around, Flaherty mentioned that David had a gun but he was too much of a coward to use it.
As we will explain post, Krystal and Cassidy testified at David’s first trial but failed to appear for the second trial, and the court permitted the prosecution to read the entirety of their former testimony into evidence at the second trial.
Daniel Karraker lived near Millard’s property. On the afternoon of August 25, Karraker briefly stopped by Millard’s residence and saw David there. Around 6:00 p.m., Flaherty contacted Karraker and asked if he had seen David. Karraker replied that he had seen David at Millard’s house. Karraker saw Flaherty head in that direction.
Flaherty drove to O’Neill’s trailer with Krystal and Cassidy, and parked his truck in the middle of the driveway. The small Beretta hatchback was parked by the trailer. The passenger door was open and Shawna was sitting in the passenger seat. Flaherty walked up to the car and asked Shawna about David’s whereabouts. Shawna said she did not know where he was. Flaherty and Shawna argued and exchanged profanities.
Krystal testified Flaherty leaned over Shawna and into the car, Shawna’s voice suddenly changed as if she was choking, and Shawna started screaming that she did not know where David was. Cassidy testified that Flaherty’s hands were around Shawna’s throat and he was choking her. Shawna screamed at Flaherty to stop, and Flaherty accused her of lying. Cassidy never saw Shawna pass out or lose consciousness. Flaherty walked away from the car and told Shawna to get out, but she stayed inside the car.
Krystal testified Flaherty turned around as if he heard something and raised his hands. Krystal saw a man with a gun by the trailer stairs, but she did not see the gunman’s face. Krystal thought the gunman or Flaherty could have said something but she was not sure. The gunman walked toward Flaherty and fired his weapon. Flaherty was still on his feet after the first shot, and stumbled and fell down into a small culvert by O’Neill’s trailer. Krystal heard Flaherty say, “‘Help me,’” and then she heard more gunshots after he fell down.
Cassidy testified that she heard a gunshot, looked toward the trailer, and saw David walking out with a gun. David kept walking as he fired the weapon. Cassidy thought she heard four or five shots, and there was a gap between the first shot and the subsequent shots. Flaherty grabbed his chest and fell into the small culvert. His back was propped up against the embankment and his head was not on the ground. Cassidy testified that additional shots were fired after Flaherty fell down.
Cassidy stated that as the shots were fired, she grabbed Krystal and they hid behind another vehicle on the property. Both Krystal and Cassidy kept looking over the side of the vehicle to see what was happening. Krystal thought she heard eight or nine shots.
Cassidy testified that after the shots were fired, David said, “‘Oh, my God,’” and “‘Help me, Shawna.’” Cassidy saw David “wrestling” to put something in the back of Flaherty’s pickup truck. Krystal heard the gunman say, “‘Help me. Help me, Shawna,’” and “‘Help me put him in the truck.’” Shawna replied, “‘I’m fucking trying.’”
Cassidy testified that Shawna went into the small culvert where Flaherty had fallen, and she kicked the dirt to cover up something on the ground. Krystal heard the click from the truck’s tailgate, and the gunman told Shawna, “‘Cover him with a blanket.’” Shawna replied, “‘Okay.’” Krystal heard another closing sound from the truck, and the truck left very quickly. Shawna was still kicking around the dirt in the culvert, trying to cover up something, as the truck left.
As soon as the truck left, Shawna and Cassidy argued about what happened, and Cassidy demanded Shawna’s car keys. Cassidy dumped out the contents of Shawna’s bag to look for the keys and several syringes fell out. Neither Krystal nor Cassidy noticed any marks around Shawna’s neck. Krystal and Cassidy found the keys to another car parked by the trailer but it would not start. Shawna grabbed the syringes and drove away by herself in the Beretta, and left the two women on the property.
Cross-examination of Krystal and Cassidy
On cross-examination, Krystal and Cassidy admitted they lied to the police when they were initially questioned and said they did not know anything about the shooting, the victim’s true name, or what happened at O’Neill’s trailer. They admitted that they did not want to be considered snitches or rats. Cassidy and Krystal denied that they spoke with each other at the jail and agreed to stick to a “script” about what to say.
Krystal admitted she previously used drugs, she had prior felony convictions, and she was on parole at the time of the homicide. Cassidy admitted she had a prior felony conviction. At the time of their testimony, Krystal and Cassidy admitted they were in custody for failing to appear at trial.
Millard’s testimony about the homicide
Millard testified he was in his house that afternoon, and he heard several gunshots, perhaps five or six, fired in quick succession from the direction of O’Neill’s trailer. Millard called 911, ran out of his house with the telephone, and looked toward O’Neill’s trailer. Millard saw David pointing and firing a rifle at another person. David walked toward the victim with a normal stride as he fired the rifle. The victim did not walk toward David, and the victim fell backwards near a creek bed. Millard testified that after he heard the five or six shots, there was a definite break of about 15 to 30 seconds, and then a final shot was fired. Millard testified David was right next to the victim in the creek bed when Millard heard the last shot, and David’s hands were at a downward angle.
Millard testified the gunman was “in and out” of his field of view, but he testified that David was the gunman and that David walked forward as he fired the last shot.
Millard testified two girls were by O’Neill’s trailer and they were screaming. The two girls ran toward Millard’s house while he was on the telephone with the police. Millard told the girls that he was talking to the police and they should stay with him, but they ran back to the shooting scene. Millard thought Shawna was one of the girls who was running and screaming.
Krystal and Cassidy testified they ran to a nearby house and spoke to a man who was on the telephone, they told the man they weren’t involved in the shooting, and they ran back to the trailer.
Millard testified that David loaded the victim’s body in the back of a Ford Ranger pickup truck which had been parked by O’Neill’s trailer. David covered the body with a blanket or sleeping bag. Millard saw at least one of the girls kicking dirt on the ground where the body had been. Millard testified David drove away in the truck at a fast rate of speed. No one else was in the truck. Millard thought the girls left in another car and followed the truck.
Millard admitted that he told the 911 operator that he thought O’Neill was the gunman and Karraker was possibly driving the truck. Millard testified that things happened quickly, and he was scared and shaken when he was talking to the 911 operator. After the incident, he thought about what he saw and realized he was wrong about O’Neill and Karraker. Millard testified he did not know these people well and he had trouble putting “a face to a name” when he called 911 but he was now sure David was the gunman and the driver. Millard testified he was not influenced by newspaper accounts that David had been arrested for the homicide.
Millard acknowledged that at the first trial, he testified that he did not see the gunman firing the rifle, but now testified “[a]s I see it in my mind, I do, I did see the gun.” Millard admitted he had lots of nightmares about the incident.
The homicide scene
Around 6:00 p.m., Tuolumne County Sheriff’s Deputies arrived at Millard’s property and found Cassidy and Krystal walking along the driveway. The women ignored the deputies’ repeated orders to get on the ground, they were not cooperative, and they were finally placed in handcuffs and taken into custody.
A bloody suitcase had fallen out of Flaherty’s truck and was on the roadway. There were bloodstains, blood drops, blood trails, drag marks, numerous footprints, multiple tire tracks, and Flaherty’s broken wristwatch on the dirt near O’Neill’s trailer. There were bloodstains in the culvert and embankment area, the dirt and leaves had been moved around to cover up something in that area, and there were blood stains that had been disturbed in the area next to drag marks. There were multiple shell casings on the ground.
Cassidy’s initial statement
Deputy Philip Halencak interviewed Cassidy while she was still at O’Neill’s trailer. She was angry and uncooperative. She said that she was with Krystal when they ran into an acquaintance named “Justin” at a bowling alley in Sonora. They got into Justin’s small white pickup, and she thought they were going to the casino but he headed down Wards Ferry Road and stopped at a trailer. Justin walked towards the trailer while the girls stayed in the truck. Cassidy said she was still in Justin’s truck when she heard several “really fast” gunshots. She pushed Krystal out of the truck, and they crouched down and hid under another vehicle that was on the property. She heard four more gunshots in a slower succession, as if someone was moving. Cassidy said she was still under the other vehicle when Justin’s truck left the property. She saw a gray vehicle leave the property about five minutes after the truck. Cassidy said she did not what happened.
Deputy Halencak testified he spoke with Cassidy for about 15 minutes, and Cassidy repeatedly said she did not want to be known as a “‘rat,’” and she did not want to cooperate or identify who was involved. Cassidy never identified the gunman, and said she only heard the gunshots and did not know if anyone was shot, but she thought the victim might have been “Justin,” the guy who gave them the ride. Cassidy also said that Justin argued with a woman on the property, but she did not identify the woman or say that Justin had choked that person.
The search for the suspects
Around 6:03 p.m., a dispatch was put out for both the pickup truck and the Beretta. Around 6:45 p.m., several officers responded to Wards Ferry Bridge, which spans a canyon and adjacent river. The officers looked around the area and watched the vehicle traffic but they did not see the truck.
Around 7:00 p.m., a crime scene technician saw the Beretta on a country road. The technician called for backup assistance and followed the Beretta until it suddenly pulled over. Shawna emerged from the driver’s side and was very excited. She confronted the technician and demanded to know why she was being followed. The technician asked her to get back into the Beretta and Shawna complied. Shawna was grabbing and rubbing her neck. The technician later took photographs of Shawna, which showed scratches up and down her neck. An officer responded to Shawna’s location, asked her what was going on, and Shawna burst into tears and became very upset.
Another officer later saw Shawna and testified that she had scratches down the front of her neck that were “fairly long.” There was some “purpling” but no bruises. Shawna did not have any scratches or marks on the middle or back of her neck.
Discovery of the pickup truck
At 8:30 a.m. on Sunday, August 26, 2007, Shawna contacted the sheriff’s department and reported that Flaherty’s truck was in a canyon. Shawna met the deputies and directed them to the truck’s exact location because it could not be seen from the road.
The deputies found Flaherty’s truck below the Wards Ferry Bridge, at the bottom of the steep and rocky canyon known as Murderers’ Gulch. The canyon was about eight miles away from O’Neill’s trailer, and it took about 25 to 30 minutes to drive there from the trailer. The truck plummeted 300 to 400 feet down a cliff with a slope of 45 degrees. The truck landed on a dry creek bed at the bottom of the canyon and flipped on its roof. The truck’s final location was about a five-minute walk from the adjacent Tuolumne River.
A search and rescue team had to be lowered down the steep canyon to reach the truck. An officer was able to carefully walk down the canyon to the truck’s location in about 10 minutes, and it took him 15 to 20 minutes to walk up the canyon and return to the road without safety rigging.
There were at least two different sets of footprints on the road at the top of the canyon. There were deceleration marks at the top edge of the canyon where the truck went over the cliff, which indicated the front tires were locked. The tire marks continued without a break from the deceleration skids and down the steep hillside, which indicated that the truck went over the cliff at a slow speed, the tires remained in contact with the surface as it went over, and it did not jump off at a high rate of speed. The truck went down in a straight direction, either because someone stayed in the truck long enough to steer it, or it was going so slow that the gravitational pull was in a straight, downward motion, and then it flipped over when it reached the bottom of the canyon.
There was debris from the truck and Flaherty’s personal property scattered all the way down the steep hillside. At the bottom of the canyon, there was blood on the ground and bloody drag marks along the rocks, about 25 feet from where the truck landed. The blood did not appear to have originated from the truck, and an officer believed the drag marks began where Flaherty’s body landed as the truck flipped into the canyon.
The top of the truck’s passenger compartment was bent but both the driver and passenger doors were intact, latched, and closed. The truck’s key was in the ignition’s “on” position and the gear shift was in neutral. There was a large amount of blood in the truck’s bed which was later matched to Flaherty. There was no blood in the truck’s cab.
While the officers discovered Flaherty’s truck, personal possessions, and bloody drag marks in the canyon, they could not find his body and could not locate David.
David and the kayak
The officers who found Flaherty’s pickup truck noticed reddish-pink plastic scrapings along the rocks in the canyon, consistent with something being dragged across the rocks, but they could not identify the source.
Around 11:00 a.m. on Sunday, August 26, 2007, the sheriff’s boat enforcement team launched watercraft from Mocassin Point Marina, and headed down the river to recover the truck from the base of the canyon. The deputies were in uniform and their boats were marked as being from the sheriff’s department. Around 11:15 a.m., the deputies passed a man on the river in a kayak, about three-quarters of a nautical mile from the Wards Ferry Bridge. They had not received any information that the homicide suspect was associated with a kayak.
The sheriff’s boat team hit a sandbar and had to turn around. Around 11:45 a.m., the deputies were returning to the marina when they saw the same man in the kayak at a different location on the river. The man did not wave at them or ask for assistance on either occasion.
Around 12:30 p.m., a clerk at the marina’s snack bar noticed David was hanging around the marina. Around 1:00 p.m., David was still at the snack bar, he asked the clerk for a cigarette, and said he had been involved in a “kayaking incident” earlier that morning.
Around 3:30 p.m., another employee of the snack bar called the sheriff’s department about a suspicious person. A deputy responded to the marina and asked David what he was doing. David said he was waiting for his girlfriend to pick him up. The deputy asked for his identification and David complied. The deputy recognized David’s name as being wanted in Flaherty’s homicide and arrested him.
The sheriff’s department later found the red kayak at the marina. A deputy recognized the kayak as the one which he had seen on the river that morning. The red plastic scrapings on the canyon rocks by Flaherty’s truck matched the red kayak, and Flaherty’s wife identified the kayak as one that Flaherty used. The kayak contained a paddle, a polo shirt, and a pair of dark blue cargo plants. The back right leg of the pants had a rip that was at least 20 inches long.
David’s injuries
David was wearing a red tank top, silky shorts, and tennis shoes when he was arrested at the marina. David had scrapes, abrasions, and bruises on his arms, hip, buttocks, and legs, and the deputies photographed his injuries.
An accident reconstruction specialist testified about the type of injuries someone would have suffered if that person was inside Flaherty’s truck as it went down the canyon. If the truck went down at full speed, an occupant would have suffered severe and possibly fatal injuries. If the occupant jumped out of the vehicle as it rolled down the canyon, he would have suffered broken bones and major injuries because of the rocky ledge and steep descent. If the occupant remained in the truck and was restrained by a shoulder belt, he would have suffered deep abdominal bruises from the belt and harness. If the occupant remained in the truck without a seatbelt or hardness, and the truck slowly went down the cliff, he would have been tossed around, possibly ejected, suffered major lacerations and bruises, and might not have survived.
The accident reconstruction specialist testified that the injuries observed on David when he was arrested at the marina were more consistent with getting out of the truck while it was still near the top of the incline, as the vehicle slowly went down the steep canyon, and he might have jumped out on the grass at the top of the canyon before the truck hit the rocks at the bottom of the canyon.
A pathologist examined photographs of David’s scratches, bruises, and abrasions, and testified they were recent injuries but inconsistent with being in the truck as it plunged to the bottom of the canyon. The pathologist explained that a person in the truck would have suffered severe injuries and fractures if he stayed in the vehicle when it hit the bottom of the canyon. The pathologist testified David’s injuries could be consistent with jumping out of the truck onto a grassy area just as it started to go down the canyon. David’s injuries were inconsistent with jumping out of the truck on the grassy area and then sliding down the vertical cliff to the rocks below, because he would have suffered cuts and scrapes on his hands as he went down the cliff.
Discovery of Flaherty’s body
On Tuesday, August 28, 2007, cadaver dogs found Flaherty’s body buried under a pile of rocks against the canyon wall, about 100 feet away from the truck. The body was completely covered by numerous rocks, and some were so heavy that two people were needed to remove them. Flaherty’s pants had been used to drag the body to the burial site.
Flaherty had five bullet wounds, in the head at the right temple, the left side of his neck, the right and left side of his chest, and left wrist. Four.22-caliber bullets were recovered from his body. The wound in his left wrist went through his body, and was either inflicted by a fifth bullet that was not recovered, or by the same bullet which continued into his left chest or left side of his neck. The head wound was lethal, and the other wounds (except for the wrist injury) would have been lethal if not treated. It was impossible to determine the order of the shots.
The pathologist testified the trajectory of the bullet wounds was inconsistent with the victim walking towards the gunman. The gunshot wound to the right temple could have been inflicted while the victim ducked and turned his head. It was also possible that the victim was shot once or twice, fell down, and additional shots were fired while he was on the ground. Flaherty could have lived for several minutes after he was shot, he would have remained conscious and able to walk after suffering four of the five gunshot wounds, but he would have been knocked unconscious and fallen down once he was shot in the head. He still could have been alive when the truck went into the canyon. His body suffered pre-death scrape marks, consistent with being thrown from the truck and striking the rocks as the truck went down, and postdeath marks from being dragged over the rocks to the burial site at the bottom of the canyon.
Flaherty had a blood/alcohol level of.07 percent, just under the legal limit, which indicated he could have consumed a couple of drinks. He tested negative for drugs.
As the officers removed the rocks which covered Flaherty’s body, they found pieces of the broken stock from a.22-caliber Marlin rifle. Another piece of the stock was found under the truck’s cab. The stock had a squirrel depicted on it, and the rifle was later identified the weapon which was kept in the car by O’Neill’s trailer. The rifle’s barrel and magazine were found between the truck and the canyon wall. The magazine would have been able to hold 17 cartridges. There was one.22-caliber cartridge in the rifle’s chamber and two unexpended cartridges in the magazine. The expended cartridges found at O’Neill’s trailer were later determined to have been fired from this rifle.
DEFENSE EVIDENCE
Cassidy and Krystal’s prior statements
Deputy Spencer Garrett testified that he interviewed Krystal at O’Neill’s trailer about two hours after she was detained, and tried to determine the identities of the gunman and the victim. Krystal said she was on parole, she was not happy to be there, and she was not very forthcoming when asked about what happened. Krystal said she arrived at the trailer with Cassidy and “Jon” in his truck. Jon got out but the girls stayed inside his truck. Krystal said she suddenly heard yelling and cursing, and then heard five to 10 gunshots. Krystal and Cassidy ducked down, got out of the truck, and hid behind another vehicle on the property. Krystal said she saw a man in a black shirt and pants, but she did not see the man with a gun or firing a weapon.
Detective Deborah Moss testified about her subsequent interview with Krystal, during which Krystal said that Cassidy made a comment that they needed some money, Shawna had money, and Cassidy wanted to get some from her. Krystal said that Flaherty had been upset because David and Shawna ditched him that day, but he was quiet and did not seem upset when they arrived at the trailer. Krystal said that Flaherty asked for help at some point.
Corporal Kelly Dickson testified that he interviewed Cassidy for two or three minutes at O’Neill’s trailer in order to determine the identities of the suspect and the victim. She was handcuffed and in the back of a patrol car. Cassidy was very emotional and said she was shaken by what had happened. Dickson knew Cassidy from previous contacts and described her as “a very hard person” with a “very tough personality to her.” Cassidy said they got a ride from a friend, who said that he had to make a quick stop at the trailer. Cassidy said that “[s]hit happened” while they were at the trailer. Cassidy said she grabbed Krystal, threw her under a vehicle on the property, they stayed under the vehicle until two other vehicles left, and then they tried to leave the area. Cassidy said a subject was shot but she did not identify the victim. Cassidy did not say that she saw the shots fired or the victim fall down.
Flaherty’s reputation for violence
David introduced evidence that Flaherty was a violent person. Lynn Beenblossom testified that she lived at Flaherty’s house and observed numerous instances where Flaherty beat and assaulted his wife, and threatened other people at the house. Flaherty frequently carried a gun, he threatened to kill his wife, and he boasted about killing and burning people and disposing of the bodies. Beenblossom became afraid of Flaherty and moved out in April 2007.
Beenblossom testified that shortly after she moved out, the police searched Flaherty’s house and found weapons. Flaherty wanted Beenblossom to say the weapons belonged to her. Beenblossom admitted she owned one of the shotguns, but she told Flaherty that she would not lie for him in court. Beenblossom believed that Flaherty “was coming for me” because of her refusal to lie for him, and she kept a gun at her house. Beenblossom testified that Flaherty was a monster and “he was coming for me, too. And yes, I would have shot him dead. And I would have called 9-1-1. That is the only difference, because he was coming for me, too.”
On April 11, 2007, Flaherty’s house was searched and officers seized a shotgun and a.380-caliber handgun.
Beenblossom knew David was planning to move in with Flaherty and she told David about everything about Flaherty because she was afraid for his safety. David moved in anyway because he was desperate to find a place to live so he could finish school.
Flaherty’s wife testified that Flaherty frequently beat and choked her, held her at gunpoint, and threatened to kill her. She told David about these incidents, and warned him that Flaherty was weird and scary when he was on methamphetamine. David was present during some of the assaults and tried to help her. Flaherty once tried to choke David at the house. Flaherty’s wife did not see him with his own gun after the police seized his weapons.
David’s trial testimony
David testified he was convicted of grand theft when he was 18 years old. He moved into Flaherty’s house in April 2007, and Flaherty allowed him to stay for free in exchange for working on some cars. David was warned about Flaherty’s violent behavior but he could not afford to live anywhere else. After David moved in, he saw Flaherty beat his wife on several occasions, and their children were removed by county authorities. Flaherty attacked David when he tried to help Flaherty’s wife.
David knew the police searched Flaherty’s house and removed his weapons, but he saw Flaherty with weapons on subsequent occasions. Flaherty blamed David for the police search and tried to choke him.
David saw Flaherty assault and choke another person who lived at the house, because Flaherty thought that person was a child molester who was after his children. Flaherty bragged about shooting people and said he was not afraid to do it again, but David thought he was bragging and trying to be a tough guy. David changed his opinion after an incident when they drove out to the Wards Ferry Bridge because Flaherty wanted to go shooting. Flaherty pulled out his rifle and looked down into the canyon, where people were rafting down the river. Flaherty said there were people down there but they would not be there for long, and started to shoot at the rafters. David testified he was afraid of Flaherty but he could not find another place to live.
David testified that on August 24, 2007, he was working with Flaherty to repair a car at the home of Flaherty’s parents. They finished with the car around 2:00 a.m. on August 25, 2007. Flaherty drove David to Shawna’s apartment in his pickup truck, and they spent the night there. Around 10:00 a.m., David and Shawna left to run errands. David told Flaherty he was leaving and he did not know when he would return. Flaherty remained at the apartment.
Around 2:00 p.m., David and Shawna drove to Millard’s house and stopped at O’Neill’s trailer. David retrieved the.22-caliber rifle that O’Neill kept in the unlocked car because he was going to use it for target-shooting. Shawna wanted to go swimming, so David left the rifle in the second trailer on the property.
David and Shawna used the Beretta that was parked by the trailer, and they drove to the river to go swimming but the water was too low. Flaherty called Shawna’s cellphone, David spoke to him, and Flaherty yelled and screamed at David that they needed to return to Shawna’s apartment. David hung up and Flaherty kept calling, but they did not answer the calls.
Around 5:30 p.m., David and Shawna drove back to O’Neill’s trailer. O’Neill was not there and they decided to wait for him. Just after they arrived at the trailer, David heard the distinctive sound of Flaherty’s pickup truck on the driveway. David thought Flaherty was mad at him, and he told Shawna to tell Flaherty that he was not there. David went into the second trailer to hide because he was afraid for his safety, and he did not want to confront Flaherty or leave with him. Shawna was sitting in the passenger seat of the Beretta and the car door was open.
David looked out the trailer’s window and saw Flaherty, Krystal, and Cassidy get out of the truck. Flaherty yelled and cursed at Shawna, and demanded to know where David was. Shawna said she did not know. David testified that Flaherty reached into the Beretta, punched Shawna in the head, grabbed her throat, and choked her. Shawna fell back in the car and was screaming.
David testified that he was afraid of Flaherty but decided Shawna’s life was in jeopardy. He headed out of the trailer and saw the.22-caliber rifle by the door. He grabbed the rifle and intended to use “as an intimidation tool.” David testified he walked out of the trailer with the gun, and Flaherty was still choking Shawna. David yelled at Flaherty to get off or leave her alone. Flaherty looked up, left Shawna at the car, and ran toward David. Flaherty’s “mouth was in a snarl and everything. He was just in a full-blown run.”
David believed Shawna was dead because she was not screaming anymore. He was afraid Flaherty was “going to do the same thing to me,” or take away the rifle and shoot him. David had been pointing the rifle to the ground, but he raised it in Flaherty’s direction and told him to stop. Flaherty did not stop. David waited until Flaherty was within four to six feet of him, and then he started shooting.
David testified he wanted to disable and not kill Flaherty. When asked if he aimed the gun at Flaherty, David testified, “[n]ot really, no.” David held the rifle at waist-level and fired three shots in Flaherty’s direction. Flaherty turned and moved away from David. David was afraid Flaherty was heading back to his truck to get his own gun and return fire. David raised the rifle a little higher and fired more shots. Flaherty fell into the culvert and David realized he was hit. David did not remember firing a shot into his head.
After Flaherty fell down, David lowered the rifle and freaked out. He put the rifle down by the Beretta and saw Shawna was alright. He decided to take Flaherty to the hospital. He did not see any blood, but Flaherty’s eyes were closed and he did not appear to be alive.
David dragged and carried Flaherty to the truck. He did not know if Flaherty was still alive and he never heard Flaherty ask for help. David asked Shawna to help him lift Flaherty into the truck but Shawna just stood there. David testified he never told Shawna to put the rifle into the truck, and she just did that on her own. David lifted Flaherty into the truck bed by himself.
As David drove away, he panicked and could not think straight. He figured Flaherty was dead and he did not want to go to prison. David drove to the Wards Ferry Bridge and just wanted to die because of what happened, and decided to drive off the cliff. He floored the truck but had “a last second change of mind” and slammed on the brakes. David stayed in the truck as it went over the cliff and bounced on the rocks. He opened the driver’s door, jumped out, and hit the rocks. David landed on his back and kept sliding down the rocky cliff. The truck went to the bottom of the canyon. When David reached the bottom, he walked to the river and tried to drown himself. He gave up and returned to the truck, and waited to see if law enforcement would arrive. Flaherty’s body was lying on the rocks and it made him uncomfortable to see it. He dragged the body away from the truck and covered it up with rocks so no one would find it, and he stayed in the canyon all night.
David testified he suffered cuts and bruises, his pants were torn, and his leg and hip were hurt from falling down the rocks. He took off his damaged clothes and left on his T-shirt and boxer shorts.
David found the kayak which had been in Flaherty’s truck. He put his torn clothes in the kayak and paddled out of the canyon the next morning. He passed the officers on the river and waved at them, but they did not pay attention to him. David stayed at the marina until he was arrested.
DISCUSSION
I. Due Diligence to find Krystal and Cassidy.
As explained ante, Krystal and Cassidy testified at David’s first trial but they did not appear at David’s second trial. The trial court found the district attorney’s office used due diligence to try and secure their appearances, and permitted the prosecution to read their former testimony into evidence.
On appeal, David contends the court’s due diligence ruling was erroneous because the district attorney’s office failed to use all possible resources to obtain the appearance of Krystal and Cassidy at the second trial after it learned they were in Reno, and should have used the statutory procedures of the Uniform Act To Secure the Attendance of Witnesses from without the State in Criminal Cases (Uniform Act) (§ 1334 et seq.) to obtain Nevada subpoenas for the witnesses. We will review the procedural history of Krystal and Cassidy’s appearances in this case.
A. The first trial.
On February 6, 2008, the joint jury trial for David and Shawna began before Judge DuTemple. Krystal and Cassidy were served with subpoenas to testify for the prosecution but failed to appear. On February 5 and 8, 2008, the court issued body attachments for Cassidy and Krystal. The two witnesses were arrested in San Jose, brought back to Tuolumne County, and remained in custody until they testified at the trial.
On February 14, 2008, Krystal and Cassidy testified before the jury in the first trial, and were cross-examined by the attorneys for David and Shawna. In the course of their testimony, Krystal and Cassidy admitted they were in custody for failing to appear to testify. They were released from custody after completing their testimony.
On February 27, 2008, the jury found David and Shawna guilty of being felons in possession of a firearm, and Shawna guilty of accessory after the fact. The jury was unable to reach a verdict on the murder charge against David and a mistrial was declared. David’s retrial was set and repeatedly confirmed to begin on May 14, 2008.
B. The second trial.
On Wednesday, May 14, 2008, David’s retrial for murder began before Judge Provost. As in the first trial, the prosecutor was Mr. Newkirk and David’s attorney was Mr. Angermiller. The jury was selected, opening statements were given, and the prosecution’s case began.
On Thursday, May 15, 2008, the jury trial continued with the prosecution’s case. On that afternoon, the court conducted a hearing outside the jury’s presence as to whether the prosecution could introduce the former testimony of Krystal and Cassidy from the first trial. Mr. Newkirk informed the court that Krystal and Cassidy were in Reno, they had been served with subpoenas issued in California, they had promised to meet an investigator that morning at 10:00 a.m, they failed to appear, and they could not be found.
The court offered to issue body attachments. Mr. Newkirk replied that was not possible since the witnesses were in Nevada. The court asked Mr. Newkirk when he learned they were out of the state. Mr. Newkirk believed district attorney’s investigator determined that fact on Monday, May 12, 2008.
“THE COURT: So, you wouldn’t have had time to get an out-of-state witness subpoena there and have a judge there, probably take care of it.
“MR. NEWKIRK: Correct. And actually, we thought we had it arranged, we thought they were going to meet. I think they bought themselves some time to split.”
Mr. Angermiller, David’s attorney, objected to the introduction of the former testimony because David’s second trial had been set for a couple of months, the district attorney’s office was aware that these witnesses had the potential not to appear, and the district attorney should have obtained out-of-state subpoenas.
During the due diligence hearing, the court and parties referred to “out-of-state subpoenas,” and presumably meant the subpoena procedures of the Uniform Act.
Thereafter, the court conducted an evidentiary hearing to determine if the prosecutor used due diligence to obtain the appearances of Krystal and Cassidy. Alan D’Hondt, an investigator for the district attorney’s office, testified about his efforts to locate Krystal and Cassidy for the first trial in February 2008, when he went to their last known address in Tuolumne County and it was vacant. He contacted Krystal’s parole officer and learned they had received a pass to stay with an aunt in San Jose. They were served with subpoenas but failed to appear. An investigator from the Santa Clara district attorney’s office took the witnesses into custody in San Jose. They were returned to Tuolumne County and remained in custody until they completed their testimony at the first trial.
D’Hondt testified that on Wednesday, April 23, 2008, he received a request to locate Krystal and Cassidy for the second trial, which was scheduled to begin on Wednesday, May 14, 2008. D’Hondt admitted that based upon his experience during the first trial, he knew there was a risk that the witnesses would not cooperate. Krystal was no longer on parole and was not required to report her address. He did not check if Cassidy was on probation.
During D’Hondt’s testimony on this point, the court interjected and offered to immediately check Cassidy’s probation status. David’s attorney replied it was a moot point, and the court believed that Cassidy’s prior violations were for misdemeanor offenses.
D’Hondt testified that on Friday, April 25, 2008, he went to the last known address of Krystal and Cassidy in Tuolumne County to serve subpoenas and they were not there. D’Hondt heard they returned to San Jose after they testified at the first trial. He checked their booking records and obtained the address for the San Jose motel where they were arrested prior to the first trial. Two or three days later, an investigator from the Santa Clara district attorney’s office checked the motel and reported the manager had not seen them since February 2008.
D’Hondt testified he next contacted the parole office, obtained the aunt’s address in San Jose, and asked the Santa Clara investigator to contact the aunt to determine if she had seen the girls. D’Hondt testified that on Wednesday, May 7, Thursday, May 8, or Friday, May 9, 2008, the Santa Clara investigator reported that he spoke to the aunt, who said that Krystal and Cassidy stayed with her after the first trial, but they were stealing from her and she made them leave. The aunt told the Santa Clara investigator: “‘The last I heard, they were talking about possibly going to Reno.’”
D’Hondt testified that when he learned the girls might be in Reno, he looked into obtaining out-of-state subpoenas that could be served on them. “I inquired about it, and I was told that it would take up to 30 days.”
D’Hondt testified that on Friday, May 9, 2008, he contacted an investigator with the district attorney’s office in Washoe County, Nevada, about looking for Krystal and Cassidy in the Reno area. The investigator checked the criminal database and reported no contacts with them.
D’Hondt testified that on Monday, May 12, 2008, he checked a nationwide database and determined Cassidy obtained a Nevada identification card with a Reno address. D’Hondt provided the information to the Washoe County investigator, who determined the address was a low-end motel in downtown Reno. On the same day, the investigator went to that motel and the manager reported the women had moved. The investigator checked other low rent motels in downtown Reno, and the manager of another motel positively identified them from photographs.
D’Hondt testified that at 11:00 a.m., he faxed the Tuolumne County subpoenas to the Washoe County investigator, and asked him to personally serve the witnesses at the motel and have them call D’Hondt. The subpoenas were dated for the first day of trial, Wednesday, May 14, 2008, at 8:00 a.m. D’Hondt testified the Washoe County investigator reported that he went to the motel, knocked on their room door, and both Krystal and Cassidy answered. He confirmed their identities from their photographs, served the subpoenas, and instructed them to contact D’Hondt.
D’Hondt testified that on Tuesday afternoon, May 13, 2008, both Krystal and Cassidy called him and said they were in Reno, they had the subpoenas, they did not want to get arrested again, they wanted to make arrangements to testify, but they did not have any money to return. D’Hondt tried to obtain bus tickets for them, but Greyhound would only accept passengers with photographic identifications, and one of witnesses did not have an identification card.
Around 5:00 p.m. on Tuesday, May 13, D’Hondt called the women and told them that personnel from the Tuolumne County district attorney’s office would meet them in Reno, drive them to Tuolumne County to testify, and then drive them back to Reno after the trial. The women agreed to meet the investigator at 10:00 a.m. on Thursday, May 15, 2008, at a particular restaurant near their motel.
D’Hondt testified that at 10:00 a.m. that day, Thursday, May 15, the investigator arrived at the restaurant and the women were not there. He waited until 10:45 a.m. and then went to their motel. The investigator asked the motel manager if he had seen the women. The manager reported “that they were there that morning, but that they had left and they were out walking the streets.” The investigator drove around downtown Reno for an hour looking for them. At 12:30 p.m., the investigator called D’Hondt and reported that he could not find them, and D’Hondt instructed him to end the search.
C. The court’s ruling
After D’Hondt’s testimony, the court found the district attorney’s office used due diligence to locate Krystal and Cassidy.
“They really went above and beyond. And―and there’s an additional problem, of course, that the two women, apparently, either were shining them on to get them to―to just not do anything and waylay their fears that Cassidy and Krystal would bolt, so I’m going to find it’s due diligence.”
The court found David’s due process rights would not be violated by the introduction of the former testimony since Cassidy and Krystal were cross-examined at the first trial by both Mr. Angermiller and Shawna’s attorney, who was “one of our better public defenders.”
The court and the parties agreed that Investigator Deborah Moss would read the part of the two female witnesses before the jury. Mr. Angermiller was concerned about the impact of even having a woman read a “cold transcript” to the jury.
“[W]ith these two particular witnesses, to read a cold transcript doesn’t nearly tell the story. Because their body language and their manner in answering the questions is so telling on their credibility, I think that it just leaves a lot of information that’s not on the page, you know, out of the record and consideration by the jury. And it’s―and it’s based, you know, if it was―if it was Investigator Moss, you know, it’s probably not a big deal. But with these two particular witnesses, their delivery of the answers was so telling in terms of their credibility that I think this jury would lose a whole lot of information in terms of weighing their credibility.”
The court acknowledged that such problems always existed when former testimony was introduced, but again found the evidence was admissible because the witnesses were unavailable and the district attorney used due diligence to attempt to secure their appearances.
The court asked Mr. Newkirk whether the trial should continue with the rest of the evidence, and they should wait until the following Wednesday, May 21, 2008, to determine if D’Hondt could find Krystal and Cassidy by then.
“MR. NEWKIRK: Well, we’d have to do the out-of-state, if we can find them again.
“THE COURT: Obviously, I’ve done those out-of-state subpoenas. I can’t really imagine you could get it done. I don’t think you could have gotten it done if you started it last Friday, when they realized they had gone to Reno.
“MR. NEWKIRK: But the thing is, had they been at the restaurant and [Krystal and Cassidy] said—simply said, we aren’t going—there would have been no authority for those officers to detain them [in Reno].
“THE COURT: You would have had a problem.
“MR. NEWKIRK: Yes.
“THE COURT: On Friday, when you discover on Friday for a Wednesday trial that somebody is missing and has moved out of state, you can’t. I can’t even imagine you can get an out-of-state witness subpoenaed for an out-of-state time frame, you know.
“MR. NEWKIRK: Oh, yes, I have done it several times.
“THE COURT: And I have, too. It would be hard to imagine. I mean, you might be able, maybe, to do it, but it wouldn’t seem likely.
“MR. NEWKIRK: I agree. And if I were you asking whether we wanted to continue their testimony to Wednesday [May 21]
“THE COURT: Yeah, their testimony wait until Wednesday, see if you can do any better getting them.
“MR. NEWKIRK: The way they were at the first trial, and then the way they’re acting now, I think they simply bought themselves a nice time to leave.
“THE COURT: Yeah, it sounds like it.
“MR. NEWKIRK: And find a new place to stay. And I think we would just be spinning our wheels until Wednesday. I anticipate finishing my case tomorrow, probably before noon.”
Thereafter, the jury trial resumed, and the former testimony of Krystal and Cassidy was read to the jury.
On Tuesday, May 20, 2008, the court held the instructional conference and reviewed the appropriate instructions for the introduction of the former testimony of Krystal and Cassidy. The following exchange occurred:
“MR. NEWKIRK: There were some information that they might have showed up back of the apartment where they were.
“THE COURT: In Reno?
“MR. NEWKIRK: Yes, many hours after.
“THE COURT: And made themselves scarce for a few hours.
“MR. NEWKIRK: I think it was more than a few hours, but later that night.
“THE COURT: Gosh, okay.”
On Thursday, May 22, 2008, the jury began deliberations. On Friday, May 23, 2008, the jury found David guilty of second degree murder.
D. Due diligence.
David now contends the prosecution failed to use due diligence to procure the appearance of Krystal and Cassidy. “The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution’s witnesses. (U.S. Const., 6th Amend.; Cal. Const. art. I, § 15.) That right is not absolute, however.” (People v. Cromer (2001) 24 Cal.4th 889, 892 (Cromer).) The United States Supreme 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.’ [Citations.] 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 (Wilson), citing Crawford v. Washington (2004) 541 U.S. 36, 59 (Crawford).)
A witness’s former testimony is only admissible if the defendant had the opportunity to cross-examine the witness at the prior hearing with an interest and motive similar to that of the hearing at which the testimony is admitted, a principle left intact by Crawford. (People v. Smith (2003) 30 Cal.4th 581, 611 (Smith); People v. Seijas (2005) 36 Cal.4th 291, 303.) This element is not at issue in this case. David was charged with first degree murder at the first trial, Krystal and Cassidy were cross-examined at the first trial by the defense attorneys for both David and Shawna, and the same attorney represented David at both trials.
To establish unavailability, the proponent of the evidence must show the declarant is absent from the hearing, and that the proponent has exercised good faith or reasonable diligence, but has been unable to procure the witness’s attendance by the court’s process. (Smith, supra, 30 Cal.4th at pp. 609-610; People v. Sanders (1995) 11 Cal.4th 475, 522-523 (Sanders).) “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.] California allows introduction of the witness’s prior recorded testimony if the prosecution has used ‘reasonable diligence’ (often referred to as due diligence) in its unsuccessful efforts to locate the missing witness. [Citation.]” (Cromer, supra, 24 Cal.4th at p. 892.)
“‘What constitutes due diligence to secure the presence of a witness depends upon the facts of the individual case. [Citation.] The term is incapable of a mechanical definition. It has been said that the word “diligence” connotes persevering application, untiring efforts in good earnest, efforts of a substantial character. [Citation.] The totality of efforts of the proponent to achieve presence of the witness must be considered by the court.’” (Sanders, supra, 11 Cal.4th at p. 523.) Relevant considerations include the character of the proponent's affirmative efforts, whether leads were competently explored, whether the proponent reasonably believed prior to trial that the witness would appear willingly and therefore did not subpoena the witness when he or she was available, whether the search was timely begun, the importance of the witness’s testimony, and whether the witness would have been produced if reasonable diligence had been exercised. (Sanders, supra, 11 Cal.4th at p. 523; Cromer, supra, 24 Cal.4th at p. 904.)
“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. [Citations.]” (Wilson, supra, 36 Cal.4th at p. 342.) “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.” (People v. Cummings (1993) 4 Cal.4th 1233, 1298.) The People need not pursue futile acts not likely to produce the witness for trial. (Smith, supra, 30 Cal.4th at p. 611.) “‘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 (2002) 95 Cal.App.4th 695, 706.)
The proponent of the former testimony has the burden of showing by competent evidence that the witness is unavailable. (Smith, supra, 30 Cal.4th at p. 609.) When the facts are undisputed, a reviewing court decides the question of due diligence independently. (Id. at p. 610.) A finding of witness unavailability under Evidence Code section 240 satisfies the unavailability requirement of Crawford. (Wilson, supra, 36 Cal.4th at p. 347.)
The admission of former testimony in violation of a defendant’s constitutional confrontation rights is subject to the harmless error analysis of Chapman v. California (1967) 386 U.S. 18 (Chapman), such that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt. (People v. Geier (2007) 41 Cal.4th 555, 608.)
In Cromer, the court held the prosecution failed to use due diligence to locate the primary witness for trial. The witness testified at the preliminary hearing and appeared cooperative, but disappeared two weeks later. The prosecution was aware of her disappearance but did not attempt to locate the witness for almost six months. On the eve of trial, the prosecution’s investigators learned the witness might be living with her mother in San Bernardino, but no action was taken for two days despite the urgency of the situation. While jury selection was ongoing, the investigator located the mother's address, traveled there and spoke to an unidentified woman, who said the mother was not home, and the investigator left a subpoena for the witness. No further efforts were made to locate the witness or her mother. (Cromer, supra, 24 Cal.4th at pp. 903-904.) Cromer concluded the chronology of events showed that “serious efforts to locate [the witness] were unreasonably delayed, and investigation of promising information was unreasonably curtailed.” (Id. at p. 904.)
E. The Uniform Act.
As explained ante, to establish unavailability, the proponent must show that it has used due diligence but has been unable to procure the witness’s attendance by the court’s process. (Evid. Code, § 240, subd. (a)(5); Smith, supra, 30 Cal.4th at p. 610; Sanders, supra, 11 Cal.4th at pp. 522-523.) The term “court’s ‘process’” as used in Evidence Code section 240 “includes the interstate processes made available by the uniform act to states which are parties to the compact. [Citations.]” (People v. Masters (1982) 134 Cal.App.3d 509, 523 (Masters), criticized on other grounds in People v. Perez (1989) 207 Cal.App.3d 431, 436; People v. Joines (1970) 11 Cal.App.3d 259, 266.)
The Uniform Act provides “a means by which prosecuting authorities from one State can obtain an order from a court in the State where the witness is found directing the witness to appear in the court in the first State to testify.” (Barber v. Page (1968) 390 U.S. 719, 723, fn. 4 (Barber); Masters, supra, 134 Cal.App.3d at p. 523.) As relevant to the instant case, the Uniform Act has been adopted by both California (§ 1334 et seq.) and Nevada (Nev.Rev.Stat., § § 174.395-174.445). (Vannier v. Superior Court (1982) 32 Cal.3d 163, 169; Wilson v. State (Nev. 2005) 121 Nev. 345, 366 [114 P.3d 285].)
As applicable to the instant case, the Uniform Acts provides that if a person in Nevada is a material witness in a prosecution in California, a California court may issue a certificate so finding. The certificate is presented to a court in the county in Nevada where the witness is found. (§ 1334.3, subd. (a); Nev.Rev.Stat., § 174.415(1).) On presentation of the certificate, the Nevada court sets a time for hearing and orders the witness to appear at that hearing. (Ibid.) If the Nevada court determines the witness is material and necessary, and that it will not cause undue hardship to the witness to be compelled to attend and testify in California, the Nevada court issues a subpoena or summons directing the witness to appear for the trial in California. (Nev.Rev.Stat., § 174.415(2).) If the witness fails to appear in California as directed by the Nevada court’s subpoena or summons issued, the witness “may be punished in the manner provided for the punishment of any witness who disobeys a subpoena issued from a court” of California. (§ 1334.3, subd. (a); Nev.Rev.Stat., § 174.415(4).)
As an alternative procedure, the California court may issue a certificate to the Nevada court which requests that the witness be taken into immediate custody in Nevada, and delivered to a California officer to assure the witness’s attendance at the California trial. In such a situation, the Nevada court may, in lieu of notification of the hearing, direct the witness “be forthwith brought” before the Nevada court for a hearing. If, at the hearing, the Nevada court is satisfied of the “desirability of such custody and delivery” of the witness, the Nevada court may, in lieu of issuing a summons or subpoena, order the witness immediately taken into custody and delivered to a California officer. (§ 1334.3, subd. (a); Nev.Rev.Stat., § 174.415(3).)
A series of cases have addressed situations where the prosecution is unable to locate a witness who has left the jurisdiction and whether the prosecution was obliged to use the Uniform Act to attempt to secure the witness’s attendance. In Barber, a witness testified at the defendant’s preliminary hearing, but he was in a federal penitentiary in Texas when the defendant’s trial began in Oklahoma, and the prosecution made no effort to procure the witness’s presence. The trial court permitted the witness’s preliminary hearing testimony to be read to the jury on the ground that the witness was unavailable to testify since he was outside the jurisdiction. (Barber, supra, 390 U.S. at p. 720.)
Barber reversed the judgment and held the defendant was deprived of his Sixth Amendment right to confrontation by the introduction of the witness’s former testimony. Barber held that in light of the adoption of the Uniform Act by multiple states, the mere absence of a witness from the jurisdiction is insufficient to establish due diligence when the state knows of the witness’s whereabouts. (Barber, supra, 390 U.S. at p. 724 & fn. 4.) Barber held that “a witness is not ‘unavailable’ for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial. The State made no such effort here, and, so far as this record reveals, the sole reason why [the witness] was not present to testify in person was because the State did not attempt to seek his presence. The right of confrontation may not be dispensed with so lightly.” (Id. at pp. 724-725.)
In Ohio v. Roberts (1980) 448 U.S. 56 (Roberts) (overruled on other grounds in Crawford, supra, 541 U.S. 36), the court found the prosecution used good faith to find a witness who departed the jurisdiction soon after testifying at the preliminary hearing. Her parents informed the prosecutor that they had heard from her only once in the prior year, she was traveling outside the state, she did not disclose her whereabouts, but a social worker reported the witness filed a welfare application in San Francisco. The prosecutor issued subpoenas for the witness at her parents' home on five occasions over a period of several months. (Roberts, supra, at pp. 59-60.) Roberts held the prosecution established the witness’s unavailability. While the prosecutor might have tried to locate the San Francisco social worker, Roberts held that “[o]ne, in hindsight, may always think of other things. Nevertheless, the great improbability that such efforts would have resulted in locating the witness... neutralizes any intimation that a concept of reasonableness required their execution.” (Id. at pp. 75-76.)
In Masters, the victim of a grocery store robbery testified at the defendant’s preliminary hearing and promised to inform the prosecution if she moved. As the trial approached, the prosecutor’s investigator learned the victim moved out of state, and learned she was living with her parents in Arkansas and looking for work. The investigator sent the California subpoena to law enforcement officials in Arkansas, the victim was served and she agreed to return for the trial at the prosecution’s expenses. When the investigator contacted her to make the travel arrangements, the victim said she had just started a new job, her health was too poor to travel, and she would not return. (Masters, supra, 134 Cal.App.3d at pp. 521-522, 526.)
Masters held the prosecution failed to use due diligence because it knew the victim’s exact whereabouts in Arkansas and should have used the Uniform Act to secure her attendance. (Masters, supra, 134 Cal.App.3d at p. 527.) Masters rejected the prosecution’s argument that it reasonably relied on her belated promise her return from Arkansas. “[The victim’s] grudging promise to appear preceded by one promise already broken cannot under these circumstances cause a waiver of the fundamental right of confrontation.” (Ibid.) Masters acknowledged the prosecution used greater efforts than those discussed in Roberts, but noted that Roberts “contrasted the improbability of finding the witness whose whereabouts were unknown (not present here) with the prosecution’s knowing where the witness was,” and the victim had already frustrated the investigator’s efforts in California by failing to maintain contact as she had agreed after being subpoenaed in California. (Masters, at p. 527.) Masters held the erroneous introduction of the victim’s preliminary hearing testimony at trial was not harmless under Chapman, since the victim was the only witness to the defendant’s alleged act of robbing her particular cash register. (Masters, at p. 528.)
In People v. Blackwood (1983) 138 Cal.App.3d 939 (Blackwood), the defendant was charged with attempting to escape from prison. A temporary employee of the prison testified at the preliminary hearing about the defendant’s efforts to escape into his truck from a loading dock. By the time of trial, the witness no longer worked for the state, and he was with his wife on a driving tour to Alaska and Canada. The prosecution notified law enforcement authorities in Alaska and Canada and provided a description of the witness’s vehicle. The witness was found in Alaska and the prosecution offered to pay his travel expenses to return. The witness refused to leave his wife and luggage, and explained they were about to board a ship for Seattle. The trial court found the witness was unavailable. (Id. at pp. 945-946.)
Blackwood held the prosecution failed to use due diligence because it knew the witness’s location and failed to use the Uniform Act to obtain the witness’s attendance. (Blackwood, supra, 138 Cal.App.3d at p. 947.)
“It is neither an answer nor a fulfillment of the requirements of the Evidence Code to suggest, as the People do, that the prosecution was not required to obtain interstate process because most likely neither Alaska nor Washington would have issued a subpoena due to the undue hardship to [the witness]. A guess by the prosecutor, the trial court or an appellate court about what the courts of Alaska or Washington might have done if requested to issue a subpoena for [the witness] pursuant to the uniform act, simply does not satisfy the requisite showing of inability under [Evidence Code] section 240, subdivision (a)(5). The prosecution’s duty was to invoke the uniform act, not to decide whether such action would be fruitful. [Citation.] ‘“[The] possibility of a refusal is not the equivalent of asking and receiving a rebuff.’” [Citations.]
“To the People’s alternate contention that there was not enough time to secure such process, the answer is the same. The prosecution’s burden under [Evidence Code] section 240, subdivision (a)(5) is to demonstrate that it ‘exercised reasonable diligence but has been unable to procure [the absent declarant’s] attendance by the court’s process.’ Reasonable diligence demands that the attempt be made to secure process under the uniform act. Only if it in fact becomes impossible to secure the process, has the prosecution sustained its burden. No such showing was made.” (Id. at p. 947, italics in original.)
While Blackwood held the defendant’s confrontation rights were violated by the admission of the witness’s former testimony, it concluded the error was harmless under Chapman because the absent witness was not the only person to describe the defendant’s escape. (Blackwood, supra, 138 Cal.App.3d at pp. 943, 947-948.)
In Dres v. Campoy (9th Cir. 1986) 784 F.2d 996 (Dres), the defendant was charged with murder, and his girlfriend disappeared shortly after she was subpoenaed to testify at the preliminary hearing. She was arrested, appeared at the preliminary hearing, and testified that the defendant confessed to the killing. After the hearing, the witness moved to Arizona and lived with her mother. Prior to trial, an investigator contacted her mother, who agreed to bring her back to California to testify. The witness ran away from her mother’s house about three weeks before trial. The witness’s friends thought she was back in California but the investigator could not obtain any specific information. The court admitted her preliminary hearing testimony and found the prosecutor used good faith efforts to find the witness. (Id. at p. 998.)
Dres found the prosecution used good faith to locate the witness even though it did not use the Uniform Act to obtain the witness’s appearance.
“The good faith obligation to resort to the Uniform Act, however, arises only when the prosecutor knows the location of the witness. [Citations.] If the witness cannot be located, application of the Uniform Act is impossible. In cases in which the witness disappears, the prosecution only has a good faith obligation to find the witness. [Citations.]” (Dres, supra, 784 F.2d at pp. 999-1000.)
Dres acknowledged the prosecution was aware of the witness’s precise location in Arizona for several months, it started the paperwork to obtain a subpoena under the Uniform Act, but it never filed the documents or used the court’s process under the Uniform Act. Dres held the prosecution’s decision not to use the Uniform Act was not unreasonable under the circumstances. (Dres, supra, 784 F.2d at p. 1000.)
“A tactical decision was made not to serve [the witness] with a subpoena because the prosecutor feared she might flee as she had done prior to the preliminary hearing. The prosecutor faced a dilemma under the Uniform Act because if he served [the witness] with a subpoena she might flee, yet if he failed to seek a subpoena the trial court might find that he had not made a good faith effort to obtain her testimony. The only other option available under the Uniform Act was for the prosecutor to request that [the witness] be taken into custody [under the Uniform Act].” (Ibid.)
Dres held it would not have been reasonable for the prosecution to take the witness into custody nearly a month before the trial since such a detention would have been unconstitutional. (Dres, supra, 784 F.2d at p. 1000.) The prosecution’s only viable option at that point would have been to subpoena the witness, “which probably would have caused her to flee judging from her behavior before the preliminary hearing. In light of these tactical considerations, the prosecutor acted in good faith when he decided to use means other than the Uniform Act for procuring [the witness’s] attendance at trial.” (Ibid.)
Dres held it was reasonable for the prosecution to rely on the promise by the witness’s mother that she would bring the witness back for the trial. In contrast to Masters, there was no reason to suspect the mother’s promise would be ineffective. “The prosecution should not have to comply with the procedures of the Uniform Act when it appears that an out-of-state witness is cooperative or more likely to testify on the basis of an informal agreement than under the compulsion of a subpoena.” (Dres, supra, 784 F.2d at p. 1001.) Dres noted the prosecutor in Masters failed to use good faith efforts once the witness stated she would not return, and failed to check numerous leads as to the witness’s whereabouts, whereas “[e]very reasonable effort was made to find [the witness in Dres] after she disappeared.” (Dres, at p. 1001.)
In People v. Hamilton (1985) 41 Cal.3d 408 (Hamilton) (criticized on other grounds in People v. Hamilton (1988) 45 Cal.3d 351, 357), a witness from Oklahoma testified at the preliminary hearing in California, maintained regular contact with the prosecutor’s investigator, was served with a subpoena for trial, and appeared cooperative. The witness disappeared about two weeks before trial and could not be found in Oklahoma. Defendant argued the prosecution failed to use due diligence because it never used the Uniform Act to secure the witness’s attendance. (Hamilton, supra, at pp. 430-431.) Hamilton distinguished the situation from Blackwood and Masters, because the witness had been cooperative but unexpectedly disappeared two weeks before trial. “Since [the witness] could not be located after his unexpected disappearance, it would have been pointless to have used the uniform act. [Citation.]” (Hamilton, supra, at p. 431.)
In People v. Hovey (1988) 44 Cal.3d 543 (Hovey), a witness testified at the defendant’s preliminary hearing, and investigators started to look for the witness about a month before the trial. The witness had been incarcerated in California and released on interstate parole to Oklahoma. The California investigators made various inquiries, attempted to locate the witness’s parents and relatives, and enlisted the help of Oklahoma authorities, who assisted by “following numerous leads, making various telephone calls and checking arrest and drivers’ license records,” but he was not found and his preliminary hearing testimony was admitted at trial. (Id. at p. 562.)
Hovey held the prosecution had shown due diligence, and rejected the defendant’s arguments that the People should have attempted to subpoena the witness while he was still in California or should have “kept in ‘periodic contact’” with him after his release from California prison. (Hovey, supra, 44 Cal.3d at p. 563.) Hovey explained that “we could not properly impose upon the People an obligation to keep ‘periodic tabs' on every material witness in a criminal case, for the administrative burdens of doing so would be prohibitive. Moreover, 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. Certainly, resort to the subpoena or ‘material witness' processes would have been premature in this case.” (Id. at p. 564.)
In People v. Lopez (1998) 64 Cal.App.4th 1122 (Lopez), the prosecutor's office spoke to the victim one month prior to trial, there was no reason to believe she would not cooperate, and she was subpoenaed to testify at the trial. The victim disappeared on the day of trial. On the day of her scheduled testimony, the investigator contacted a relative, who believed she was living in Las Vegas. (Id. at pp. 1224-1225.) Although the investigator made no effort to determine whether she was actually living in Las Vegas, Lopez held the prosecution used due diligence to attempt to secure her appearance:
“[T]he prosecution was not required to do everything possible to procure [the victim’s] attendance; it was only required to use reasonable diligence. There is nothing to indicate that had the prosecution been able to verify [the victim’s] Las Vegas address she would have returned in time to testify. That the reason given for [the victim’s] trip to Las Vegas may have had nothing to do with the trial does not mean the prosecution could have obtained her timely return. Had [the victim] been anxious to testify, she had plenty of time before [the trial] to contact the prosecutor and make arrangements to appear.” (Id. at p. 1128.)
A closely related question is currently pending before the California Supreme Court in People v. Cogswell, review granted, February 13, 2008 (S158898), as to whether due diligence required a prosecutor to use the Uniform Act to take into custody a sexual assault victim who left the state and refused to return to testify.
In People v. Sandoval (2001) 87 Cal.App.4th 1425 (Sandoval), a witness was in custody on drug charges, he testified against the defendant at the preliminary hearing, and he was deported to Mexico. Prior to trial, the prosecution contacted the witness in Mexico, and he was willing to testify if he could get a passport and visa to legally enter the United States. The prosecution declined to provide the witness with $100 so he could apply for a visa, and did nothing else to secure his presence at trial. (Id. at p. 1432.) Sandoval held the prosecution failed to show due diligence, and observed that “[t]he circumstances presented to the prosecution, including finding [the witness], receiving from him his assurance he wanted to cooperate, and determining that he needed funds to comply, left the prosecution with several options. There was a possibility, not remote, even perhaps a likelihood, that [the witness] would attend if the prosecution assisted him. [Citation.]” (Id. at pp. 1441-1442.) Sandoval held the prosecution “threw up its hands” instead of pursuing any of these alternatives, and thus failed to use due diligence. (Id. at p. 1443.)
G. Analysis.
We find the prosecution herein clearly used due diligence when it started to look for Krystal and Cassidy nearly three weeks before the beginning of the second trial. In contrast to Cromer, the prosecution’s investigator, D’Hondt, used all possible leads to determine the witnesses’ whereabouts, the investigator’s efforts were not “unreasonably delayed,” and the investigation of “promising information” was not “unreasonably curtailed.” (Cromer, supra, 24 Cal.4th at p. 904.) When Krystal and Cassidy could not be found in Tuolumne County, D’Hondt reviewed his prior research, found the name of the motel where they were previously living in San Jose, and sent a Santa Clara County investigator to look for them. They were not there but D’Hondt was not deterred. He again retraced his research from the first trial, learned they had an aunt in San Jose, and sent the Santa Clara investigator to speak to the woman. The aunt reported the witnesses were living with her after the first trial, she threw them out of her house because they were stealing from her, and they talked about possibly going to Reno. Again, D’Hondt continued the investigation as the start of the second trial approached. He contacted an investigator in the district attorney’s office in Washoe County, Nevada, continued to conduct his own research, located an address for Cassidy at a Reno motel, and sent the investigator to check it out. While the witnesses were not at that motel, the Washoe County investigator kept looking for them, and found them at another Reno motel.
The prosecution herein used extraordinary efforts to track down Krystal and Cassidy, and it began the search in a reasonable amount of time prior to the second trial. The investigator was not deterred by unsuccessful leads, he continued to use all possible efforts to locate the witnesses, and he was not dilatory as the start of the second trial approached.
Defendant contends the prosecution had a duty to obtain subpoenas for Krystal and Cassidy under the provisions of the Uniform Act. We find that the prosecution did not have such a duty based on the evolving facts and circumstances of the case. First, the “good faith obligation to resort to the Uniform Act... arises only when the prosecutor knows the location of the witness. [Citations.]” (Dres, supra, 784 F.2d at p. 999.) We have already found the prosecution’s investigator used due diligence when he began his search for Krystal and Cassidy nearly three weeks before the scheduled trial date. While the prosecution had obtained subpoenas from the Tuolumne County Superior Court for the witnesses, there is no evidence the prosecution knew of the whereabouts of Krystal and Cassidy, or that they might have left the state, which would have triggered any type of duty to obtain and serve out-of-state subpoenas under the Uniform Act. Indeed, there was no credible evidence at that time that the witnesses were in another state. (See, e.g. Hamilton, supra, 41 Cal.3d at p. 431 [pointless to use Uniform Act when witness’s whereabouts are unknown].)
Defendant challenges the sequence in which D’Hondt used the tools at his disposal to look for Krystal and Cassidy, and argues that D’Hondt was remiss for not taking certain steps at different times in his search. However, D’Hondt carefully and methodically used all possible leads to find them. It was reasonable for D’Hondt to begin his search at their last known address in Tuolumne County, because there is no evidence that Krystal and Cassidy were aware that David’s first trial ended in a mistrial or that another trial was going to be conducted, such that they could have returned to that residence after the first trial. When D’Hondt determined the witnesses were no longer living in Tuolumne County, he carefully and methodically traced them to San Jose, and confirmed they had been living there with an aunt after the first trial. The aunt reported that she threw them out because they were stealing from her, and they talked about going to Reno, but she lacked any specific contact information as to their whereabouts.
Defendant contends the prosecution should have anticipated that Krystal and Cassidy would evade service of process based upon their actions during the first trial. However, the prosecution was not obligated to keep “‘periodic tabs’” on Krystal and Cassidy after their appearances at the first trial, and “resort to the subpoena or ‘material witness’ processes would have been premature” under the circumstances. (Hovey, supra, 44 Cal.3d at p. 564.) Moreover, it would have been unreasonable for the prosecution to take the witnesses into custody nearly a month before the second trial, and such a detention would have been unconstitutional. (Dres, supra, 784 F.2d at p. 1000.)
As we have already explained, D’Hondt’s methodical search continued as he used the resources of a Washoe County investigator to determine if Krystal and Cassidy had any contacts with law enforcement in Nevada. D’Hondt did not simply rely upon the work of that investigator but he continued to conduct his own investigation, and learned that Cassidy had obtained a Nevada identification card with the address of a Reno motel. The Washoe County investigator could not find them at the motel, continued looking in the downtown Reno area, and found them at another motel.
Defendant contends the prosecution should have used the Uniform Act to obtain Nevada subpoenas for Cassidy and Krystal when they were found at the Reno motel. Once the prosecution learns about a witness’s whereabouts, however, it may reasonably make the tactical decision to use means other than the subpoena process of the Uniform Act to secure the witness’s appearance, in order to avoid triggering the witness’s reaction of fleeing. (Dres, supra, 784 F.2d at p. 1000.) While the aunt thought that Krystal and Cassidy might be in Reno, there was no evidence that the witnesses knew the prosecution was looking for them, David was going to be tried again, the second trial was about to begin, or they were about to be served with subpoenas to return to Tuolumne County. More importantly, however, there is absolutely no evidence they went to Reno to avoid being witnesses at David’s second trial. Instead, the undisputed evidence is that they left San Jose only because of the aunt’s decision to throw them out of her house because they were stealing from her. Moreover, Cassidy’s decision to obtain a Nevada identification card with a valid address, and their continued presence in the immediate area of that address, further refutes any inference that they were trying to disappear or avoid service of process in this case. When the Washoe County investigator found Krystal and Cassidy at the Reno motel, he served them with the Tuolumne County subpoenas, he instructed them to call D’Hondt, and they complied with his orders. There were numerous exchanges between Krystal, Cassidy, and the investigator in the following 24 hours, as they worked out the logistics of their return to Tuolumne County. There is no evidence they were aware of the legal limitations of the Tuolumne County subpoenas. They had an opportunity to disappear, but they did not abscond and instead maintained regular contact with D’Hondt. (Cf. Masters, supra, 134 Cal.App.4th at p. 527 [witness’s broken promise to appear plus prosecution’s knowledge of witness’s exact whereabouts triggered prosecution’s duty to use Uniform Act]; Blackwood, supra, 138 Cal.App.3d at p. 947 [same].)
Under the undisputed facts and circumstances, the prosecution did not have a duty to obtain subpoenas for Krystal and Cassidy under the Uniform Act once they were found in Reno, given the cooperation of the witnesses and the reasonable belief that they were “more likely to testify on the basis of an informal agreement than under the compulsion of a subpoena.” (Dres, supra, 784 F.2d at p. 1001.) In addition, the prosecution did not “thr[ow] up its hands” when faced with logistical problems and instead made extraordinary efforts to arrange for their return to Tuolumne County. (Cf. Sandoval, supra, 87 Cal.App.4th at p. 1443.)
Again, given the unique facts and circumstances of this case, there was no evidence that Krystal and Cassidy were going to evade process until the moment they failed to meet the investigator at the restaurant. Even if the prosecution’s investigator arrived at that restaurant with subpoenas obtained under the Uniform Act, Krystal and Cassidy were not present to be served and their whereabouts were unknown. The prosecution was not required to obtain subpoenas under the Uniform Act after Krystal and Cassidy failed to appear at the restaurant, because it is “pointless” to use the resources of the Uniform Act where a witness cannot be located after an unexpected disappearance. (Hamilton, supra, 41 Cal.3d at p. 431.)
Defendant complains the prosecution gave up the search too quickly and should have used other means to look for Krystal and Cassidy in Reno and beyond. As explained in Roberts, however, “[o]ne, in hindsight, may always think of other things. Nevertheless, the great improbability that such efforts would have resulted in locating the witness[es], and would have led to [their] production at trial, neutralizes an intimation that a concept of reasonableness required their execution.” (Roberts, supra, 448 U.S. at pp. 75-76.) “[T]he prosecution was not required to do everything possible to procure [the witness’s] attendance; it was only required to use reasonable diligence.” (Lopez, supra, 64 Cal.App.4th at p. 1128.)
We thus conclude the prosecution used due diligence to locate Krystal and Cassidy, there was no duty to use the Uniform Act under the facts and circumstances of this case, and the trial court herein properly admitted the witnesses’ former testimony.
Judicial Council of California Criminal Jury Instructions (2007-2008) (CALCRIM).
David next contends the jury was improperly instructed with CALCRIM No. 319, prior statements of unavailable witnesses, because the instruction only allowed the jury to consider the prior out-of-court and inconsistent statements of Krystal and Cassidy for purposes of impeachment rather than for the truth of the matter.
A. Background.
During the instructional conference, Mr. Newkirk, the prosecutor, suggested that CALCRIM No. 319, prior statements of unavailable witness, should be given because there was testimony about the prior out-of-court statements made by Krystal and Cassidy to various law enforcement officers. The pattern instruction states:
“__________ did not testify in this trial, but (his/her) testimony, taken at another time, was (read/played) for you. In addition to this testimony, you have heard evidence that __________ made (another/other) statement[s]. [I am referring to the statement[s] about which _________ insert name[s]> testified.]
“If you conclude that __________ made (that/those) other statement[s], you may only consider (it/them) in a limited way. You may only use (it/them) in deciding whether to believe the testimony of __________ that was (read/played) here at trial. You may not use (that/those) other statement[s] as proof that the information contained in (it/them) is true, nor may you use (it/them) for any other reason.” (CALCRIM No. 319, italics added.)
The court and parties agreed the instruction applied to both Krystal and Cassidy since there was evidence about out-of-court statements made by both of them to law enforcement officers. The court read the rest of the pattern instruction and focused on the last line, as italicized ante, as to whether the out-of-court statements could be used for the truth of the matter, and discussed the matter with Mr. Angermiller, David’s attorney:
“THE COURT:... You may not use those other statements as proof of the information contained in them, nor may you use them for any other reason.
“MR. ANGERMILLER: You know, that’s kind of a
“MR. NEWKIRK: It’s odd that they throw in that last sentence.
“THE COURT: Very odd, because you actually can, can’t you, in some cases?
“MR. ANGERMILLER: Well, if they were sitting here testifying, you sure as heck could.
“THE COURT: So, why can’t you when you don’t
“MR. ANGERMILLER: Yeah.
“MR. NEWKIRK: Well, you can only use it if you cross-examine them and they denied it. [¶] And I can’t remember whether you cross-examined them on [Deputy] Halencak’s or
“THE COURT: I think [defense counsel], didn’t you when you were cross-examining them in the last trial?
“MR. ANGERMILLER: I think I did, yeah. [¶] Basically asked them, ‘Isn’t it true that you lied to the officers? And isn’t it true that you told them that it was―the guy’s name was Justin and he picked you up at the bowling alley,’ and all that stuff.
“THE COURT: Right. So maybe we ought to take that last paragraph out.
“MR. NEWKIRK: Not the paragraph, just the last sentence.” (Italics added.)
The court asked Mr. Angermiller if he agreed, and he said yes. The court again read the last sentence and remarked, “That’s not the law,” and Mr. Angermiller agreed.
“THE COURT: Yeah. All right. Let’s take that out. I think you’re right, I think if you read testimony and you didn’t ask those questions prior, then you would have trouble now.”
The court and the parties also agreed that CALCRIM No. 318 should be given.
Thereafter, the court instructed the jury with the following modified version of CALCRIM No. 319:
“Cassidy Coffey and Krystal Phillips did not testify in this trial, but their testimony taken at another time was read to you. In addition to this testimony, you have heard evidence that they made other statements. I am referring to statements about which deputies testified. If you conclude they made those other statements, you may only consider them in a limited way. You may only use them in deciding whether to believe the testimony of Cassidy Coffey and Krystal Phillips that was read here at trial.” (Italics added.)
The court next gave CALCRIM No. 318, prior statements as evidence:
“You have heard evidence of statements... a witness made before the trial. If you decide that a witness made those statements, you may use those statements in two ways: One, to evaluate whether the witness’s testimony in court is believable, and two, as evidence that the information in those earlier statements is true.” (Italics added.)
B. Analysis.
David contends the instructions prevented the jury from relying upon the out-of-court statements made by Krystal and Cassidy for the truth of the matter. While the court deleted the last sentence of the pattern instruction for CALCRIM No. 319, David notes the court left in language in the last paragraph (italicized ante) which stated that out-of-court statements could only be used to determine the credibility of Krystal and Cassidy. David acknowledges the jury also received CALCRIM No. 318, which specifically stated that it could consider prior out-of-court statements for either the truth of the matter or for impeachment. However, he argues the impact of CALCRIM No. 318 was undermined by the italicized language in CALCRIM No. 319, and the error was prejudicial because it prevented the jury from relying upon the witnesses’ statements to the deputies for the truth as to what happened at the trailer.
David acknowledges he did not raise this objection at trial; indeed, he agreed to the court’s modification of CALCRIM No. 319. Nevertheless, he contends this court may review the issue because the alleged instructional error violated his substantial rights. (People v. Guerra (2006) 37 Cal.4th 1067, 1138.) He also contends this instructional error further illustrates the prejudicial impact that resulted when the court permitted the introduction of the former testimony of Krystal and Cassidy, because the instructions only allowed the jury to consider their former testimony for the truth of the matter, and their prior out-of-court statements for credibility purposes.
CALCRIM No. 319 contains language formerly stated in CALJIC No. 2.13, consideration of prior inconsistent statements. (People v. Friend (2009) 47 Cal.4th 1, 42, fn. 23.) CALCRIM No. 318 contains language formerly stated in CALJIC No. 2.12, consideration of the transcript testimony of an unavailable witness.
Respondent acknowledges the court and the parties intended to permit the jury to consider the witnesses’ prior out-of-court statements for the truth of the matter, which is why the court deleted the last line in the pattern version of CALCRIM No. 319, but the court mistakenly failed to modify the rest of the instruction. Respondent further acknowledges there is some ambiguity between CALCRIM Nos. 318 and 319 but argues the jury was not misled and the error is not prejudicial.
An analogous instructional situation occurred in People v. Gutierrez (2002) 28 Cal.4th 1083, where the police obtained statements from the defendant in violation of Miranda. The court held the defendant’s out-of-court statements were inadmissible in the prosecution’s case-in-chief because of the Miranda violation but could be used to impeach his trial testimony. (Gutierrez, at pp. 1130-1133.) The jury received CALJIC No. 2.13, that it could consider prior inconsistent statements for both the truth of the matter and impeachment. On appeal, the defendant argued the jury could have improperly relied on the instruction to consider his out-of-court statements for the truth of the matter, even though the statements obtained in violation of Miranda were only admissible to impeach his trial testimony. (Gutierrez, at p. 1134.) Gutierrez rejected the argument: “The short answer is that a limiting admonition was never requested, nor was the trial court under a sua sponte obligation to give one. [Citations.] In any event, since the [defendant’s out-of-court] statement was neither a confession nor an admission and defendant concedes the statement was not true, there was no substantive, much less prejudicial, use to which the jury could have put the statement, even had the jury improperly applied CALJIC No. 2.13.” (Ibid.)
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda)
A similar situation exists in the instant case. While CALCRIM Nos. 318 and 319, read together, are somewhat ambiguous as to the consideration of a witness’s prior out-of-court statements, the instructional error was not prejudicial under the unique circumstances of this case. Both the prosecution and the defense called deputies to testify about the out-of-court statements made by Krystal and Cassidy shortly after they were taken into custody at the trailer. In these statements, however, Krystal and Cassidy repeatedly claimed they did not know what happened at the trailer, they did not see anything, and they did not know the identities of the gunman or the victim. They did not give a different narrative account of the homicide, or identify other people as being involved. They simply claimed that they had no idea what happened. Indeed, when the jury herein heard their former testimony from the first trial, both Krystal and Cassidy admitted that they lied to the police when they were initially questioned about the homicide, and Krystal continued to insist that she did not see the gunman. As in Gutierrez, their prior out-of-court statements were not substantive and they even admitted their prior statements were not truthful. The ambiguity between the instructions was not prejudicial.
III. CALCRIM No. 3.61.
David testified at the second trial, and contends the jury was improperly instructed with CALCRIM No. 3.61, the defendant’s failure to explain or deny adverse testimony. He argues the instruction was not supported by substantial evidence, and it violated his constitutional rights to due process and to be convicted only upon proof beyond a reasonable doubt.
David did not raise any of these objections at trial but again claims the instruction violated his substantial rights. (Guerra, supra, 37 Cal.4th 1067, 1138.)
The court instructed the jury with CALCRIM No. 361:
“If a defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so, based on what he knew, you may consider this failure to explain or deny in evaluating that evidence. Any such failure is not enough, by itself, to prove guilt. [¶] The People must still prove each element of the crime beyond a reasonable doubt. If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure.”
CALCRIM No. 361 is similar in content to CALJIC No. 2.62, and serves the important function of conveying to the jury the “well settled rule that a defendant who takes the stand and testifies in his behalf waives his Fifth Amendment privilege [citation] and his state constitutional privilege to the extent of the scope of relevant cross-examination.” (People v. Saddler (1979) 24 Cal.3d 671, 679 (Saddler); People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1066 (Rodriguez).) As with CALJIC No. 2.62, CALCRIM No. 361 suffers no constitutional or other infirmities and may be given in the appropriate case. (Saddler, supra, 24 Cal.3d at p. 681; Rodriguez, supra, 170 Cal.App.4th 1062, 1066-1068.)
Whether CALCRIM No. 361 should be given depends on the specific facts of the case. (People v. Mask (1986) 188 Cal.App.3d 450, 455 (Mask).) CALCRIM No. 361 should only be given when there are acts or evidence in the prosecution’s case within the defendant’s knowledge which he did not explain or deny. (Saddler, supra, 24 Cal.3d at pp. 682-683; Rodriguez, supra, 170 Cal.App.4th at pp. 1066-1067.) “[A] contradiction is not a failure to explain or deny.” (Saddler, supra, 24 Cal.3d at p. 682.) “If he fully accounts for his whereabouts and denies the crime, the mere fact that defendant's story is contradicted by other prosecution evidence does not pave the way for giving the instruction, because contradiction is not by itself a failure to explain or deny. [Citations.]” (Mask, supra, 188 Cal.App.3d at p. 455.)
However, if the defendant elects to testify at trial and there are “logical gaps” in his testimony, the instruction should be given to the jury. (People v. Redmond (1981) 29 Cal.3d 904, 911.) Moreover, the instruction should be given “if the defendant tenders an explanation which, while superficially accounting for his activities, nevertheless seems bizarre or implausible, the inquiry whether he reasonably should have known about circumstances claimed to be outside his knowledge is a credibility question for resolution by the jury [citations].” (Mask, supra, 188 Cal.App.3d at p. 455; People v. Belmontes (1988) 45 Cal.3d 744, 784, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421; People v. Sanchez (1994) 24 Cal.App.4th 1012, 1030.)
David argues there was no evidentiary basis to give CALCRIM No. 361 because he was cross-examined about every aspect of the case, and “[a]t no time did [he] fail to answer the prosecutor’s questions. To every question he made his best effort to answer.” As respondent points out, the record refutes this assertion on several points where facts were uniquely within David’s knowledge, but there were logical gaps in his account and he offered implausible explanations for critical incidents.
For example, the prosecution’s evidence established that Flaherty fell into the culvert after he was shot and David kept shooting. Millard heard shots, saw someone fall down and heard more shots, and there was blood and drag marks in the culvert. David testified on direct examination that he fired two volleys of shots at Flaherty, and kept firing because he thought Flaherty was turning to retrieve his own weapon from his truck. On cross-examination, the prosecutor asked David to explain how Flaherty ran toward him, and Flaherty’s location and actions as David shot him. David testified he did not know how Flaherty was standing, where his hands were and when he turned, and whether he kept shooting after Flaherty fell. David admitted he did not know when he shot Flaherty in the head, and he was not sure about the details of Flaherty’s movements or when he fell. David was simply unable to explain the critical sequence of Flaherty’s location as he kept firing.
The prosecution’s evidence also established that someone who remained in the truck as it went over the cliff, or jumped out of the truck and bounced down the rocks to the bottom of the canyon, would have suffered severe or even fatal injuries, and that David’s scratches and bruises were inconsistent with staying in the truck or bouncing down the rocks. David testified on direct examination that he stayed in the truck as it went over the cliff, jumped out, and bounced down the rocks to the bottom of the canyon. On cross-examination, the prosecutor asked David to clarify how fast the truck was going and the exact point he drove over the cliff. David testified he could not be specific about those details. The prosecutor asked whether his scratches were the worst injuries he suffered falling down the 300 to 400 foot cliff at a 45 degree angle. David insisted he was wearing pants.
“Q You weren’t in an Evil Knievel bodysuit or anything like that?
“A No.
“Q You didn’t have a helmet on?
“A No.
“Q And there’s no injuries on your hands, correct?
“A I don’t remember.
“Q Did you hold your hands up so you wouldn’t put them down to get them injured?
“A No.
“Q You were trying to stop yourself with your hands, correct?
“A Yeah. There’s a lot of grass.
“Q There’s a lot of grass like on Exhibit No. 102 where there’s about a 40-foot cliff that’s solid rock?
“A Well, up until that point.
“Q So you didn’t use your hands going down the cliff part, the rocky part?
“A No.
“Q You kept them up somehow?
“A I don’t know. I grabbed—I grabbed for rocks and stuff, but it didn’t... no, my hands didn’t get all cut up.”
The court properly gave CALCRIM No. 361 given these aspects of David’s cross-examination testimony.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., CORNELL, J.