Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County Super. Ct. No. 29764. Ronald Hansen, Judge.
Joshua G. Wilson, 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 and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Dawson, J., and Kane, J.
A jury convicted appellant Espiridion Diaz Garcia of individual counts of willful infliction of corporal injury on a spouse or cohabitant (spouse/cohabitant abuse) (Pen. Code, § 273.5, subd. (a)), assault by means of force likely to produce great bodily injury (aggravated assault) (Pen. Code, § 245, subd. (a)(1)), possession of cocaine (Health & Saf. Code, § 11350) and transportation of cocaine (Health & Saf. Code, § 11352), all felonies, and two misdemeanor counts of resisting, delaying or obstructing a peace officer (Pen. Code, § 148). The court imposed a prison term of four years, consisting of the three-year lower term on the transportation of cocaine conviction and one year on the aggravated assault conviction. The court stayed execution of sentence on the remaining two felonies pursuant to Penal Code section 654.
Although appellant was convicted of possession of cocaine in violation of Health and Safety Code section 11350, the abstract of judgment filed July 31, 2006, incorrectly states he was convicted of possession of cocaine for purposes of sale in violation of Health and Safety Code section 11351.5. We informed the parties pursuant to Government Code section 68081 of our intention to order correction of the abstract of judgment. However, no correction is necessary. As the People have advised us, on June 8, 2007, the trial court issued an amended abstract of judgment correcting the error, and a copy was sent to this court. We hereby order the record augmented to include the amended abstract of judgment. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
On appeal, appellant contends the court erroneously admitted evidence of the victim’s preliminary hearing testimony and statements the victim made to police. We will reverse appellant’s conviction of spouse/cohabitant abuse, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because appellant’s contentions on appeal relate only to the spouse/cohabitant abuse and aggravated assault convictions, we limit our factual summary to those offenses.
On September 21, 2005, Teresa Mojica placed a 911 call. City of Merced Police Officers Joseph Wren and Donald King responded to the call, and Officer King made contact with Mojica at her apartment. He conducted a preliminary interview with Mojica there, and later interviewed her again at the police station. He made an audio tape of the latter interview.
Mojica did not testify at trial but her preliminary hearing testimony was read to the jury. At the preliminary hearing, Mojica testified to the following. She and appellant, her “boyfriend,” lived together. On September 21, 2005, in their home, the two argued. At one point during this argument, appellant and Mojica went into the bathroom, where appellant “put his hand” on Mojica’s neck and “[p]ulled [her] back.” Mojica had no “feeling or sensation” when appellant touched her neck, and appellant did not “squeeze” her neck. However, Mojica admitted she told Officer King that he did, and that she felt “lightheaded” and “passed out.”
At some point thereafter, appellant left the bathroom and Mojica called the police. However, she told Officer King she was not able to call the police because “the phones were disabled.”
Mojica left the apartment, and she and her cousin went to Wal-Mart. She returned approximately one hour later, at which point she and appellant began to argue again. During this argument, appellant did not touch Mojica, although she admitted she told Officer King that appellant held her down on the couch and punched her several times in the head.
After this “second incident,” appellant left the apartment and Mojica called the police. When Officer King responded, Mojica told him she placed a couch against the door to prevent appellant from getting back into the apartment.
Mojica did not have “injuries that [she] showed Officer King,” but she did have hickeys on her neck and an abrasion on her finger. She suffered the injury to her finger when, after the second incident, she was holding appellant by his necklace and he bit her to make her let go.
Officer King testified that Mojica “had … what appear[ed] to be[] fresh bruising on her neck and she had a cut on her finger.” Photographs showing the bruising and cut finger were admitted into evidence.
An audio tape of Officer King’s second interview with Mojica was admitted into evidence and played for the jury. The jury was also provided with a transcript of the tape. The transcript indicates Mojica told Officer King the following. Appellant choked her with one hand, causing her to pass out. When she awoke, she was lying on her back on the ground, and appellant was “fanning” her. At that point, Mojica telephoned her mother, “and that’s when [appellant] hit [Mojica]” with a “closed” hand.
An audio tape of Mojica’s 911 call was admitted into evidence and played for the jury, and the jury was provided with a transcript of the tape. The transcript indicates Mojica told the 911 operator the following. Her “boyfriend,” whom she identified as Espiridion Garcia Diaz [sic], “[was] trying to get in the house to hit [her].” He had “already choked [Mojica]” earlier that day and she had “blacked out.”
Procedural Background
Trial began on June 7, 2006. On that day, before jury selection began, the court noted that the prosecution proposed to introduce into evidence the transcript of Mojica’s preliminary hearing testimony. The defense objected on hearsay grounds (Evid. Code, § 1200), and the prosecutor responded that the proposed evidence was admissible under section 1370. Following discussion and an offer of proof by the prosecution, the court made a tentative ruling that Mojica was unavailable as a witness.
Except as otherwise indicated, all further statutory references are to the Evidence Code.
Section 1370 provides that evidence of a statement of a declarant is not made inadmissible under the hearsay rule if, inter alia, the statement purports to describe the infliction or threat of physical injury upon the declarant and the declarant in unavailable as a witness pursuant to section 240. Section 240 provides, in relevant part, that a declarant is “unavailable as a witness” if he or she is “[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.” (§ 240, subd. (a)(5).)
The following day, again prior to jury selection, the court conducted an evidentiary hearing on the issue of whether Mojica was unavailable as a witness under section 240. The first witness at that hearing, Linda Jones, an investigative assistant with the office of the Merced County District Attorney (MCDA), testified to the following. On three occasions in December 2005, she attempted to serve a subpoena for a January 2006 court proceeding on Mojica at a residence on O Street in Merced indicated on the subpoena. On the first occasion, Jones made contact with appellant, who told her Mojica was not there. Jones left her business card, but Mojica did not contact her. One or two days later, Jones went back, went to the door but did not make contact with anybody. She again left her business card. Jones went back a third time, knocked on the door, but again did not make contact with anyone.
The court, on its own motion, hereby augments the record on appeal to include this subpoena, which was admitted into evidence as People’s Exhibit 101. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
The next witness, MCDA investigator Andrea Valtierra, testified to the following. Within a two-week period, in late December 2005 and early January 2006, she made three attempts to serve Mojica with the subpoena for the January 2006 proceeding, apparently at the same address at which Jones had attempted service. In the first of these attempts, she knocked on the door, but nobody answered. In her second attempt, she knocked, and a person who identified herself as Mojica’s mother answered and stated that Mojica was at work. She did not know when Mojica would be home. Valtierra left her business card, but Mojica did not contact her.
On her third attempt, Valtierra made contact with a person whom Valtierra believed to be Mojica, based on a California Department of Motor Vehicles photograph Valtierra had. Valtierra spoke the name Teresa, and “as soon as [she did so and] started to speak about the information on the subpoena she slammed the door.” Valtierra left the subpoena “in front of the door” where it could easily be seen.
Valtierra further stated that on the morning she was testifying, June 8, 2006, she had gone with another investigator to an address on Fern Avenue in Merced. An Hispanic male answered the door and “said [Mojica] … lived with her mother at an unknown address.”
The next witness, MCDA investigator Mark Goddard, testified to the following. On June 7, 2006, he learned from the welfare department that Mojica was “possibly” at an address on Fern Avenue in Merced. He went with Investigator Valtierra on the morning of June 8, 2006, to that address; made contact with a man Goddard thought was appellant; and asked for Mojica. The man stated Mojica did not live there.
Goddard further testified to the following. Previously, he received information from the welfare department that Mojica was living at a certain address in Phoenix, Arizona. Goddard telephoned the Phoenix police department and spoke to a woman there named Liz Cruz “about trying to get the subpoena served [on Mojica].” Cruz “said she needed an Interstate Compact in order for them to serve the subpoena.” Goddard passed this information on to prosecutor Christa Gonzalez.
Goddard was not able to “verify whether or not Ms. Mojica was actually at that Phoenix address[.]” e did not testify as to what efforts, if any, he made to verify the address.
Goddard could not recall in what month he spoke to Cruz, but he did recall he did not speak to her the previous week. However, admitted into evidence as People’s Exhibit 102 was (1) a subpoena directed to Mojica, indicating a Phoenix address, issued April 11, 2006, by prosecutor Gonzalez, and (2) a MCDA “REQUEST FOR PERSONAL SERVICE OF SUBPOENA” directed to the attention of Linda Jones and bearing handwritten notations which included “interstate compact” and “Liz Cruz.”
On its own motion, the court hereby augments the record to include People’s Exhibit 102. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
In response to the court’s question as to “what’s involved” in utilizing the Uniform Act, prosecutor Gonzalez, who had never previously attempted service of process through the Uniform Act, stated, “from what I understand, there is … a document that needs to be filled out with a whole bunch of information and then it has to be -- I don’t know it has as to be signed by judge here and then sent over…. I’m not sure.” She argued, “The People do not have to take every single step possible in the realm of the world in order to secure a witness or to procure a witness to come to court and testify. The People didn’t even know where the witness was.”
Defense counsel countered that the welfare department informed the district attorney’s office that Mojica was in Arizona. The court ruled that “reasonable diligence was made to attempt to compel the attendance of Ms. Mojica ….”
DISCUSSION
Appellant contends the court erred in admitting into evidence Mojica’s preliminary hearing testimony and the audio tape of statements she made to Officer King. Specifically, appellant argues as follows: in order establish that this hearsay evidence was admissible, the prosecution had the burden of showing that it exercised sufficient diligence in attempting to secure Mojica’s attendance at trial by the court’s process; the prosecution was insufficiently diligent because when it learned of Mojica’s Arizona address, it failed to utilize the Uniform Act to Secure the Attendance of Witnesses from without the State in Criminal Proceedings (Uniform Act) (Pen. Code, §§ 1334, 1334.3, Ariz. Rev. Stats. 2007, § 13-4092) to secure her attendance at trial; and therefore the admission of the challenged evidence violated appellant’s rights under California law and the Sixth Amendment to the United States Constitution.
Governing Legal Principles
“A defendant has a constitutional right to confront witnesses, but this right is not absolute. If a witness is unavailable at trial and has testified at a previous judicial proceeding against the same defendant and was subject to cross-examination by that defendant, the previous testimony may be admitted at trial. [Citations.] The constitutional right to confront witnesses mandates that, before a witness can be found unavailable, the prosecution must ‘have made a good-faith effort to obtain his presence at trial.’ [Citations.]” (People v. Smith (2003) 30 Cal.4th 581, 609.)
As indicated above, section 240 contains a similar requirement. As relevant here, that section provides that to establish unavailability, the proponent of the evidence, here the prosecution, must establish that it “has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.” (§ 240, subd. (a)(5).)
“The constitutional and statutory requirements are ‘in harmony.’ [Citation.] The proponent of the evidence has the burden of showing by competent evidence that the witness is unavailable.” (People v. Smith, supra, 30 Cal.4th at p. 609.)
“‘The lengths to which the prosecution must go to produce a witness … is a question of reasonableness.’” (Ohio v. Roberts (1979) 448 U.S. 56, 74 [100 S.Ct. 2531].) “‘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 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. Prior decisions have taken into consideration not only the character of the proponent’s affirmative efforts but such matters as … whether the witness would have been produced if reasonable diligence had been exercised [citation].’” (People v. Sanders (1995) 11 Cal.4th 475, 523.)
The phrase “due diligence” and the phrase used in section 240, “reasonable diligence,” have the same meaning. (People v. Wilson (2005) 36 Cal.4th 309, 341.)
The term “court’s process” as used in section 240 includes interstate process through mutual statutory provisions with respect to those states which have adopted the Uniform Act. (People v. Joines (1970) 11 Cal.App.3d 259, 266.) “The court in [Barber v. Page (1968) 390 U.S. 719 [88 S.Ct. 1318]] rejected the concept that mere absence from the jurisdiction was unavailability and noted that the Uniform Act … provides ‘a means by which prosecuting authorities form one State can obtain an order from a court in the state where the witness is found directing the witness to appear in court in the first State to testify.’” (People v. Masters (1982) 134 Cal.App.3d 509, 523, quoting Barber v. Page, supra, 390 U.S. at p. 723, fn. 4.)
“A sudden departure on the eve of trial can give rise to the issue of the feasibility of utilizing the act,” and “[t]he procedure under the [Uniform Act] can be time-consuming,” but “the prosecution in certain cases may need to seek a continuance based on good cause in an attempt to initiate or complete necessary steps in compliance with the [Uniform Act].” (People v. Masters, supra, 134 Cal.App.3d at p. 526, fn. 11.)
Analysis
At the outset, we clarify what is not at issue. There is no dispute as to the following propositions: the challenged evidence is hearsay, and therefore not admissible unless made so under at least one exception to the hearsay rule (§ 1200); Mojica’s preliminary hearing testimony is admissible under section 1370, provided Mojica was unavailable as a witness under section 240; Mojica’s statements to Officer King were inconsistent with her preliminary hearing testimony and therefore fall within the prior inconsistent statement exception to the hearsay rule (§ 1235); and thus the admissibility of both Mojica’s preliminary hearing testimony and her statements to Officer King hinges on the single point of contention, viz. whether the prosecution acted with sufficient diligence in attempting to secure Mojica’s attendance at trial
Specifically, as the parties also agree, the issue before us is whether the prosecution’s failure to utilize the Uniform Act to attempt to secure Mojica’s attendance at trial constitutes a lack of due diligence. Although the parties agree the Uniform Act is and was at all times relevant in force in both California and Arizona (Pen. Code, §§ 1334, 1334.3, Ariz. Rev. Stats. 2007, § 13-4092), the People contend the prosecution was not required to utilize it to attempt to secure Mojica’s attendance at trial. The People base this contention, in turn, on the following claims: (1) the prosecution “was not certain of Mojica’s location” because “[a]lthough the prosecutor had information that Mojica was in Arizona, [MCDA] Investigator Goddard was unable to verify Mojica’s address” and (2) given Mojica’s apparent efforts to avoid service, which resulted in the prosecution’s failure to effect service despite numerous attempts, “[e]ven if Mojica were in Arizona at the time, there is little reason to believe the Arizona authorities would have had any better luck at serving a subpoena on Mojica than the district attorney’s investigators did when Mojica was in California.”
As to the first of these claims, we note that although Investigator Goddard testified he was unable to verify the Arizona address he received for Mojica, that is the extent of the evidence on that point; he did not testify, and there is no other evidence, that he or anyone else in the prosecutor’s office made any attempt to verify the address. Given that the prosecution bears the burden of establishing diligence, the lack of evidence of “verification” of Mojica’s presence in Arizona does not aid the People’s cause. The evidence was uncontroverted that the prosecution had information as to Mojica’s precise whereabouts in Arizona, and there is nothing in the record that casts doubt on the reliability of that information.
With regard to the second claim, we find instructive People v. Masters, supra, 134 Cal.App.3d 509. In that case, the appellate court held that the trial court violated the defendant’s rights under the Sixth Amendment in allowing the reading at trial of the preliminary hearing testimony of a declarant who was out-of-state at the time of trial because the prosecution did not make use of the Uniform Act. The circumstances in Masters, as relevant here, are as follows:
Prior to trial, on January 21, the district attorney’s investigator, Mike Jewel, made contact with the declarant, Frances Ballard, in California, and Ballard agreed she would let Jewell know if she moved or changed her phone number. (People v. Masters, supra, 134 Cal.App.3d at p. 521.) Jewell later learned Ballard had left the state. (Ibid.) He obtained an address and telephone number for her in Arkansas, and telephoned the number twice, on February 23 and 27, each time leaving a message asking Ballard to call collect. (Ibid.) When he did not hear from her, he called again on March 9, and spoke to a “very ‘evasive’ sounding” woman who said Ballard was not in. (Ibid.) Jewell believed the woman was Ballard. (Ibid.) On March 30 Ballard telephoned Jewel collect, and “[i]n a reluctant manner,” said she did not have the money to return to California. (Id. at p. 522.) Jewel told her that her expenses would be covered. (Ibid.) Ballard “‘was very reluctant but she agreed’ to return to testify.” (Ibid.) In June, Jewel made several unsuccessful attempts to contact Ballard by telephone, but eventually learned from Ballard’s mother that Ballard had moved to another town in Arkansas. (Ibid.) On June 12, Ballard telephoned Jewel collect, stated she would not return to California and “refused to give information regarding her location.” (Ibid.)
The Masters court stated: “In the instant case we are faced with a prospective witness who skipped the state without keeping her earlier promise to the investigator that she would notify him of any move; who failed to call the investigator from February 23d to March 9th despite two messages at her home in Arkansas for her to do so collect…. On or before March 9 [when Jewel spoke to the evasive sounding woman], with [Ballard’s] whereabouts known, steps should have been taken to utilize the [Uniform Act]…. She was still amenable to legal process, with her whereabouts known, so that it was still possible to resort to the uniform act.” (People v. Masters, supra, 134 Cal.App.3d at p. 526, italics added.) Rejecting the People’s contention that because the declarant promised to appear the prosecution was excused from availing itself of the Uniform Act, the court also stated: “It would be anomalous to conclude in the instant case that the promise to appear made in reluctance, preceded by a broken promise to maintain contact and evasiveness, makes an adequate showing of unavailability simply because the witness was out of state. Here the witness was still amenable to the uniform act when the critical promise was made. Under these circumstances an adequate showing was not made to excuse use of the uniform act.” (Id. at p. 528.)
Thus, in Masters it was held that in order to justify admitting into evidence the preliminary hearing testimony of an out-of-state declarant’s whose whereabouts were known, the prosecution was required to make use of the Uniform Act, even though the declarant had acted evasively. Similarly, in the instant case, where the prosecution, as early as April 11, 2006, had information as to Mojica’s address in Arizona, the prosecution was not excused from utilizing the Uniform Act to at least attempt to secure Mojica’s attendance at trial, notwithstanding her demonstrated unwillingness to appear voluntarily. Although, as the prosecutor argued at trial, the state may not have been obligated to take “every single step possible,” the prosecution’s failure to attempt to secure Mojica’s attendance at trial by means of the Uniform Act violated appellant’s rights under California law and the United States Constitution, and therefore the court erred in admitting Mojica’s preliminary hearing testimony and the tape of the police interview.
We turn now to the question of whether the erroneous admission of the challenged evidence requires reversal of appellant’s convictions of spouse/cohabitant abuse and aggravated assault. The applicable standard of review is that set forth in Chapman v. California (1967) 386 U.S. 18, 24: “[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” (In re Montgomery (1970) 2 Cal.3d 863, 868 [applying Chapman standard to admission of preliminary hearing testimony in violation of defendant’s Sixth Amendment rights]; People v. Masters, supra, 134 Cal.App.3d at p. 528 [same].)
A conviction of spouse/cohabitant abuse requires proof beyond a reasonable doubt that the victim is the “spouse, former spouse, cohabitant, former cohabitant, or the mother or father of [a] child [of the perpetrator].” (Pen. Code, § 273.5, subd. (a).) “‘[C]ohabiting’ under section 273.5 means an unrelated man and woman living together in a substantial relationship--one manifested, minimally, by permanence and sexual or amorous intimacy.” (People v. Holifield (1988) 205 Cal.App.3d 993, 1000.) Mojica testified at the preliminary hearing that appellant was her boyfriend, the two lived together and they had a child together. However, with the exclusion of that evidence, the only evidence in the record regarding the nature of relationship between appellant and Mojica was Mojica’s statement to the 911 operator that appellant was her boyfriend. On this evidence, no reasonable juror could have concluded that the People had established the requisite relationship between appellant and Mojica. Therefore, as the People concede, with respect to appellant’s conviction of spouse/cohabitant abuse the admission of the challenged evidence cannot be deemed harmless.
We reach a different conclusion with respect to appellant’s conviction of aggravated assault. As relevant here, that offense consists of essentially two elements: (1) the assault, and (2) the element of force, i.e., a force likely to cause great bodily injury. No injury is necessary; it is enough that the force used is likely to cause great bodily injury. (People v. Hopkins (1978) 78 Cal.App.3d 316, 320.) “Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate.” (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.)
Penal Code section 245, subdivision (a)(1) also proscribes assault “with a deadly weapon or instrument other than a firearm.” (Pen. Code, § 245, subd. (a)(1).)
As indicated above, the evidence admitted at trial supporting the aggravated assault charge consisted of the following: Mojica’s preliminary hearing testimony that she told Officer King Mojica squeezed her neck, and she passed out; the tape of the officer’s interview with Mojica, in which Mojica told the officer appellant choked her, causing her to pass out, and that after she regained consciousness he hit her with a closed hand; Officer King’s testimony that he observed bruising on Mojica’s neck; photographs showing the bruising; and the tape of the 911 call in which Mojica told the 911 appellant had choked her and she passed out.
Appellant contrasts the “detailed description of the altercation between Mojica and appellant in the preliminary hearing transcript and the police interview” with “the simple statement in the 911 call that appellant had ‘choked’ Mojica,” and argues that “the jury undoubtedly based its conviction on the more prejudicial, detailed account than on the 911 call.” We disagree.
As indicated above, the People presented evidence that appellant first choked Mojica and later struck her with a closed hand. Given that the only evidence of significant injuries suffered by Mojica related to injuries to her neck, it is apparent that appellant’s conviction of aggravated assault was based on the evidence that appellant choked Mojica, and not on the second assault. And with the exception of the evidence appellant struck Mojica, the challenged evidence adds virtually nothing to the 911 tape. With respect to the first assault, the prior testimony and police interview provide evidence of nothing beyond the bare facts that appellant choked Mojica and that she passed out. The same is true of the 911 tape. Contrary to appellant’s contention, the 911 tape contains evidence not only that appellant choked Mojica, but that she lost consciousness. Given that 911 tape supplies virtually the same evidence as the challenged evidence, and with virtually the same degree of detail, we conclude that the admission of the challenged evidence was harmless beyond a reasonable doubt.
DISPOSITION
Appellant’s conviction of spouse/cohabitant abuse in violation of Penal Code section 273.5 is reversed, and the sentence imposed on that conviction is vacated. In all other respects the judgment is affirmed.