Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA286664, David M. Mintz, Judge.
Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and John R. Gorey, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Troy Anthony Riggs (defendant) appeals from the judgment entered following a jury trial resulting in his conviction of assault by means of force likely to produce great bodily injury and with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), with a finding of the infliction of great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). He admitted that he had two prior serious felony convictions (§ 667, subd. (a)(1)) and that the convictions additionally qualified him for sentencing pursuant to the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12). At sentencing, the trial court imposed an aggregate term of 39 years to life, consisting of a term of 25 years to life, enhanced by four years for the infliction of great bodily injury and by two fully consecutive terms of five years, or 10 consecutive years, for the prior serious felony convictions.
All further statutory references are to the Penal Code unless otherwise indicated.
He contends (1) the trial court abused its discretion and denied him due process when it found due diligence permitting the use at trial of the victim’s preliminary hearing testimony, and (2) the trial court abused its discretion and denied him due process when it refused to strike one of his prior serious felony convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
We find the contentions unpersuasive and affirm the judgment.
THE FACTS
I. The Proceedings Before Trial
Defendant was charged with stabbing the victim Ruebonay Johnson (Ms. Johnson) on July 10, 2005. The preliminary hearing was held on September 1, 2005. Ms. Johnson testified at the hearing. On September 15, 2005, the defendant was arraigned on the information. Thereafter, the case was continued to December 15, 2005, when body attachments were issued for four female witnesses, including Ms. Johnson. Twice during January 2006, the defense moved to continue the trial. During the latter continuance, the trial court issued and held an additional body attachment for witness Quincy Smith. There were further defense and stipulated continuances, and the body attachments for the witnesses continued to be held. On March 8, 2006, the parties announced that they were ready for trial.
On March 9, 2006, on the eve of trial, defendant’s attorney and the alternate deputy public defender declared conflicts of interest. The prosecutor had the body attachments for four witnesses, including Ms. Johnson, held to the next trial date of April 11, 2006. The prosecutor commented as follows: “Just to be safe, I have advised previous counsel that should we not be able to secure the attendance of the victim in this case, [Ms.] Johnson, who we’ve been in contact with as of last week but is not here today, we would proceed on this case using the preliminary hearing transcript after we had the appropriate hearing.” Defense counsel replied: “I appreciate that. I will be ready for a response when I’ve read everything.”
On May 2, 2006, the minute order shows that the trial court refused to hold the body attachments until the next trial date because on April 11, 2006, no request was made by the prosecutor to hold the body attachments. At that time, the prosecutor indicated that they had resubpoenaed witness Quincy Smith, and a body attachment was issued and held for Smith. The prosecutor said that the prosecution was unable to locate Ms. Johnson. He explained that she was a homeless person, and they would persist in their efforts to locate her. Trial was set for May 23, 2006, witness Smith was put on call, and a witness in custody, Kenneth Carrell, was ordered to be transported to court for trial.
On May 23, 2006, the parties announced that they were ready for trial. The trial court swore in the jury.
II. The Prosecution’s Case-in-chief
The People were unable to locate the victim, Ms. Johnson. They established due diligence and had a woman read Ms. Johnson’s preliminary hearing testimony into evidence.
Ms. Johnson’s prior testimony established that at approximately 4:00 p.m. on July 10, 2005, she, the defendant, “Quincy, ” and others were walking down an alley near Normandie Avenue and Martin Luther King Boulevard in Los Angeles. Defendant had been harassing her. Quincy offered her a hamburger at the Jack-in-the-Box, and she ate it. Defendant became jealous and angry because Quincy had given her food, and he and Quincy fought in the alley. Defendant had stabbed Quincy with a small knife, Quincy ran, and defendant turned on Ms. Johnson. Defendant then stabbed Ms. Johnson twice in the side. An ambulance took Ms. Johnson to the hospital, and she had surgery.
During the five months preceding the stabbing, she had been living with defendant at a local “crash house.” During that time, on five occasions, he had beaten her, causing black eyes. Before the stabbing, she and defendant had been drinking alcoholic beverages, and they had smoked some crack cocaine. She commented during her testimony that when defendant was drunk, “anyone that’s around [her], bothered him.”
The parties stipulated that at the time of the preliminary hearing, Ms. Johnson was on probation for possessing a controlled substance. In the probation case, on September 9, 2005, a bench warrant was issued for her arrest, and it remained outstanding. Previously, during Ms. Johnson’s probation, two bench warrants had been issued for her arrest.
The Los Angeles police officer who responded to the 911 call after the stabbing asked Ms. Johnson who had stabbed her. She replied, “Troy Long, ” and Troy Riggs.
Quincy Smith, a 24-year-old computer technician who lived in an apartment complex next to the alley, testified that about 4:00 p.m. on July 10, 2005, he heard noise and looked outside. He saw a man punching defendant and went outside so he had an unobstructed view of the alley. He saw two men throwing punches at one another. One of the men ran off. The other man, who Smith identified as defendant, started pursuing the man, then turned around, cornered a woman who was in the alley, and he pushed her. The woman let out a “death scream, ” and fell to the ground. Smith went into the alley, had someone call an ambulance, and observed that the woman, Ms. Johnson, was bleeding. He assumed that this group of persons were among the crack heads who hung out and smoked crack cocaine at that location in the alley.
During the trial, there was no suggestion that Quincy Smith was the “Quincy” Ms. Johnson referred to in testifying that she and defendant were accompanied by others in the alley or that he was the “Quincy” who gave her food at the Jack-in-the-Box.
At 6:30 p.m. that evening, another Los Angeles police officer responded to a call of trespassers at 5109 Second Avenue, near Arlington and Vernon Avenues in Los Angeles. The officer saw defendant squeezing his way through a gate into a residence’s backyard. The officer chased defendant and caught him several blocks away. Defendant had a folding knife in his pocket with a seven-inch blade. The blade was covered with blood. Defendant also had a broken glass item that was bloody. The officer gave his opinion that the broken glass item was probably a crack pipe. He also said that defendant had blood on his hands.
Gabriel Barboza, a Los Angeles detective, testified that he was in charge of the case. On July 25, 2005, Ms. Johnson voluntarily came to the station for an interview. Detective Barboza spoke to her every week to two weeks to see if she was okay. He believed that she was staying at an apartment at 1345 West Martin Luther King Boulevard with a gentleman she referred to as her uncle. When he spoke to her initially, Ms. Johnson was homeless and destitute, and she needed money for shelter. He arranged for the victim assistance coordinator to give her $300. The detective asked her to stay in touch with him and to let him know where she was staying.
III. The Defense
In defense, defendant testified that he and Ms. Johnson used crack cocaine. On July 10, 2005, he, Ms. Johnson, “Mike, ” and Quincy Hill were walking in the alley as Ms. Johnson had described. He and Hill did not get along, and Hill had been talking to Ms. Johnson shortly before they left their crash pad on their way to the residence of Ms. Johnson’s uncle. When they were in the alley, suddenly, Hill started punching defendant. Defendant tried to defend himself, and Hill “took off.” When Hill left, Ms. Johnson approached defendant swinging a knife. He and Ms. Johnson “tussled” over the knife, he sustained a cut on his thumb and forefinger, and Ms. Johnson was stabbed accidentally. He claimed that he had “tussled” with her over the knife in self-defense. Defendant claimed that when Ms. Johnson drinks alcoholic beverages, she becomes volatile. He did not intend to hurt her. Defendant was impeached with prior felony convictions of attempted robbery, grand theft of an automobile, and possessing a controlled substance for sale.
DISCUSSION
I. Due Diligence
Defendant contends that he was denied his federal constitutional right to confrontation when the trial court admitted Ms. Johnson’s preliminary hearing testimony into evidence without an adequate showing of due diligence. We disagree.
A. The Evidence Adduced at the Due Diligence Hearing
By way of background, trial counsel told the trial court that the relevant date for due diligence was April 11, 2006. On that proposed trial date, the prosecutor assigned to the case was not present. His replacement failed to ask for the body attachment to be held. The trial court took judicial notice of its file. It noted that on November 4, 2005, Ms. Johnson had been served and the trial court ordered a body attachment issued for her. The body attachment was held from time to time until March 9, 2006. On that date, the matter was put over until March 15, 2006, and set for trial on April 11, 2006. It said the file showed that the body attachment was not held for the witness either on March 15, 2006, or on April 11, 2006.
The prosecutor commented that when he was out for surgery, his replacement failed to have the body attachment held. When he returned, he attempted to once again have Ms. Johnson served. He said that they were aware that she would be difficult to secure as a witness. They had “problems getting her to the preliminary hearing, ” and in good faith, the prosecution had been attempting to “keep tabs on her.”
Los Angeles County District Attorney Investigator Jennifer Martin testified that on April 11, 2006, she received a request for personal service on Ms. Johnson for a trial scheduled to commence on May 2, 2006. Another investigator, Cook, had previously looked for Ms. Johnson in connection with the case. That investigator’s notes indicated that Ms. Johnson was personally served on October 28, 2005, at the Carl’s Jr. restaurant at Vermont Avenue and Martin Luther King Boulevard, for the court date of November 4, 2005. Ms. Johnson did not come to court on November 4, 2005.
In January 2006, another investigator, Ruby Kazmirski, had looked for Ms. Johnson. Investigator Kazmirski contacted Mildred Watkins and Ms. Johnson’s probation officer and ascertained that Ms. Johnson recently was not reporting to her probation officer. On January 10, 2006, Kazmirski spoke to Detective Barboza, who attempted to locate Ms. Johnson. On January 16, 2006, the detective told Investigator Kazmirski that he had made several efforts and was unable to locate her. Detective Barboza told the investigator that Ms. Johnson’s transient friends had said that she normally hangs out in the area near Normandie Avenue and Martin Luther King Boulevard. Investigator Kazmirski telephoned Martin Luther King Hospital, and the Los Angeles Mission, to no avail.
On February 1, 2006, Investigator Overstreet looked for Ms. Johnson. The investigator went to the Arco Station on the northeast corner of Martin Luther King Boulevard and Budlong Avenue, a location where Ms. Johnson normally can be found. No one had seen her. Investigator Overstreet drove the area. On February 13, 14, and 15, 2006, Investigator Overstreet again drove Ms. Johnson’s neighborhood in efforts to find her.
On April 14, 2006, when Investigator Martin obtained subpoenas for Ms. Johnson and several other witnesses, she went to 348 West 90th Street in Los Angeles to subpoena Betty Griggs. She spoke to Ms. Griggs’s mother, who gave her a telephone number for Betty Griggs, 323-299-6306. She said her daughter and Ms. Johnson frequent the corner of Budlong Avenue and Martin Luther King Boulevard. The investigator telephoned Betty Griggs, who indicated that Ms. Johnson’s address should be 1173 Browning Street, not the 1173 West Vernon Street address the investigator had.
Investigator Martin spoke to Mildred Watkins at 1173 Browning Street, Gwen Watkins’s sister. Mildred Watkins said that Ms. Johnson sometimes stays there, but she had not seen her in several weeks and was unaware of Ms. Johnson’s whereabouts. Mildred Watkins said that she would do what she could to contact Ms. Johnson. Ms. Watkins told the investigator that Ms. Johnson is homeless, and she lives wherever she is permitted to spend the night. The investigator told Mildred Watkins that she would be concerned for Ms. Johnson’s safety if defendant were to be released from jail.
The investigator then ran the standard information for Ms. Johnson with the Department of Motor Vehicles and “J-DOP” and looked into her criminal history and prior warrants.
On May 4, 2006, Investigator Martin spoke to the deputy district attorney. On May 15, 2006, she went to 1173 West Browning Street again, and a woman answered the door. The investigator asked the woman who she was, and the woman was uncooperative. The investigator could see the arm and shirt of the woman in the foyer. She could not see the woman’s face through the security screen. The investigator had a hunch that the woman possibly was Ms. Johnson. She tried to talk the woman into identifying herself or letting the investigators in, but the woman refused, and there was nothing the investigator could do. The investigator even told the woman that she had a warrant, but the woman would not open the door. Investigator Martin did not have enough information to demand entry to confront the woman, even though the investigator knew that Ms. Johnson had an outstanding no-bail arrest warrant. The investigator then checked the general neighborhood, with no results.
On May 22, 2006, Investigator Ellis returned to the 1173 Browning Street address. Ms. Watkins told him that she did not know who was at home when Investigator Martin was there, and Ms. Watkins said that she was not the person who was there that day. Investigator Ellis went to another address, 7925 South Broadway, which turned out to be a closed and vacant business building.
On May 22, 2006, Investigator Martin contacted Detective Barboza to see whether he had further information or any leads she could pursue. Detective Barboza did not return her call. She contacted the County U.S.C. Hospital, Martin Luther King Hospital, and General Hospital. She attempted telephoning Mildred Watkins again. Watkins’s son, Trevon Watkins, answered the telephone and said that he had not seen Ms. Johnson in two weeks.
On that same date, Investigator Martin telephoned the Los Angeles County Coroner’s Office. She obtained a “J-DOP” computer printout to determine whether Ms. Johnson was in jail. In an effort to locate Ms. Johnson, she telephoned the probation department, the Victim Advocate Office, the Los Angeles County Department of Social Services, and the Los Angeles Mission, again to no avail. The Department of Social Services did give her the name of Ms. Johnson’s ex-husband. She contacted him, and spoke with his girlfriend. The girlfriend said that she believed that Ms. Johnson was in a rehabilitation program but did not know where. The ex-husband gave the investigator the same information.
Her last effort to find Ms. Johnson was on May 22, 2006. She telephoned the Los Angeles County Probation Office to ascertain if Ms. Johnson had been apprehended or turned herself in on the probation bench warrant. She also telephoned Ms. Watkins again, but only left a message as there was no answer.
The investigator had an address that dated to the year 2000 for Ms. Johnson that she had obtained through the Department of Motor Vehicles. However, the investigator did not check that address as the information was so dated.
After listening to the above evidence of due diligence, the trial court ruled that the prosecution had established due diligence in attempting to secure Ms. Johnson as a trial witness.
B. The Relevant Legal Principles
“The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution’s witnesses. [Citations.]” (People v. Cromer (2001) 24 Cal.4th 889, 892 (Cromer).) The right to confrontation, however, is not absolute. (Ibid.) Testimony given in a preliminary hearing against the defendant may be used at trial if the witness is unavailable at trial. (Evid. Code, § 1291.) Evidence Code section 240 defines certain occasions when a witness is deemed unavailable, such as when the declarant is “[a]bsent from the hearing and the court is unable to compel his or her attendance by its process, ” or when the declarant is “[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.” (Evid. Code, § 240, subds. (a)(4) & (5).)
Appellate courts independently review a trial court’s determination of due diligence. (People v. Smith (2003) 30 Cal.4th 581, 610; Cromer, supra, 24 Cal.4th at p. 901.) To determine whether a party has exercised due diligence to locate and to produce a witness at trial, courts review the facts of the individual case and consider “‘such matters as whether [the proponent] reasonably believed prior to trial that the witness would appear willingly and therefore did not subpoena him when he was available [citation], whether the search was timely begun, and whether the witness would have been produced if reasonable diligence had been exercised [citation].’ [Citation.]” (People v. Sanders (1995) 11 Cal.4th 475, 523.)
“An appellate court ‘will not reverse a trial court’s determination [under § 240] simply because the defendant can conceive of some further step or avenue left unexplored by the prosecution. Where the record reveals, . . . that sustained and substantial good faith efforts were undertaken, the defendant’s ability to suggest additional steps (usually . . . with the benefit of hindsight) does not automatically render the prosecution’s efforts “unreasonable.” [Citations.] The law requires only reasonable efforts, not prescient perfection.’ [Citation.] ‘That additional efforts might have been made or other lines of inquiry pursued does not affect [a] conclusion [there was due diligence] . . . . It is enough that the People used reasonable efforts to locate the witness.’ [Citation.]” (People v. Diaz (2002) 95 Cal.App.4th 695, 706.)
C. The Analysis
Defendant argues that the Office of the District Attorney “dropped the ball, ” was out of touch with Ms. Johnson for six months, and then at the last minute scrambled unsuccessfully to find her during the month before the actual trial. He claims that when Ms. Johnson failed to appear on November 4, 2005, at that point the investigators should have made all efforts to contact her and to keep track of Ms. Johnson. Instead, the investigators paid no attention to her whereabouts until April 2006, when the trial appeared to be imminent.
Defendant mistakes his record. Here, the witness was found and served on October 28, 2005. Ms. Johnson then failed to appear for the trial date of November 4, 2005. The prosecution thereafter attempted to find her, and the case was continued and the bench warrant held. The difficulty occurred when an uninformed prosecutor stepped in during a continuance when the prosecutor assigned the case was absent. The stand-in failed to have the court hold the body attachment. It was only at that point that the prosecution had a duty to again serve Ms. Johnson with a subpoena. At that time, the People continued their efforts, going to great lengths to find Ms. Johnson. However, they were unsuccessful. Ms. Johnson seemingly had left the area. She possibly had entered residential drug rehabilitation without informing the authorities of her location. Or, she was deliberately attempting to avoid service and being forced to be a witness at the trial, and others in the community supported her efforts to avoid service. In either event, the prosecution’s efforts were persistent and reasonable in attempting to locate her.
The trial court did not abuse its discretion or deny defendant his constitutional right to confrontation by ruling that the People had established due diligence.
The decision in People v. Avila (2005) 131 Cal.App.4th 163 (Avila) does not compel a different conclusion. In Avila, several months after a mistrial was declared and on the day the parties answered ready for trial, the detective spent two days attempting to contact a material witness at her residence in order to obtain appearance. There were indications that the witness might be avoiding service and a court appearance. The detective explained his lack of diligence by informing the trial court that it was his experience in a gang case that the best method for guaranteeing an appearance was to wait until the last minute to find the witness. He claimed that earlier service on the witness simply gave the witness a chance to avoid a court appearance.
In Avila, the reviewingcourt found a lack of due diligence, observing that “[w]aiting until the morning a trial begins to try to locate a witness after being out of touch for several months is generally not prudent or reasonable, and certainly is not an untiring effort to secure a witness’s presence at trial.” (Avila, supra, 131 Cal.App.4th at p. 169.) The decision in Avila is readily distinguishable. The prosecution in the instant case did not wait until the 11th hour to attempt to secure Ms. Johnson’s appearance. They had been looking for her for months.
II. The Romero Motion
Defendant contends that the trial court abused its discretion by denying appellant’s request to strike one of the strike convictions. We are not persuaded of the contention’s merit.
Section 1385 provides, in relevant part, “The judge or magistrate may . . . in furtherance of justice, order an action to be dismissed.” (§ 1385, subd. (a).) In Romero, supra, 13 Cal.4th at pages 529-530, the California Supreme Court concluded that “section 1385[, ] [subdivision] (a) does permit a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law.”
In People v. Williams (1998) 17 Cal.4th 148, the California Supreme Court set forth the factors relevant to the determination of whether to strike a strike conviction: “in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to [section 1385, subd. (a)] or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Id. at p. 161.)
A superior court’s determination not to strike a strike is reviewable for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) “In [conducting this review], we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citation.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp. 376-377.)
Thus, “‘[i]t is not enough to show that reasonable people might disagree about whether to strike one or more’ prior conviction allegations. . . . Because the circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case—where the relevant factors described in Williams, supra, 17 Cal.4th [at page 161], manifestly support the striking of a prior conviction and no reasonable minds could differ—the failure to strike would constitute an abuse of discretion.” (People v. Carmony, supra, 33 Cal.4th at p. 378.)
The instant case is not an extraordinary one in which a departure from the Three Strikes law sentencing scheme is compelled. At sentencing, defendant was 44 years of age and his counsel asserted that he had a serious heart problem, a damaged liver, and was suffering from Hepatitis C. Defendant had a long history of cocaine abuse, and there was no serious prospect of rehabilitation. His criminal history was unrelenting. He had the serious felony convictions which triggered the Three Strikes sentencing scheme, a 1982 attempted robbery with the use of a knife, for which he was committed to the California Youth Authority, and the 1995 conviction of voluntary manslaughter, for which he had served a 14-year term in state prison. When he committed the current offense, due to his many parole violations, he was still on parole for the latter offense. He had numerous other substance-abuse-related and theft-related convictions, and after 1988, he served three other prison terms apart from the term served for his voluntary manslaughter conviction. The probation officer reported that defendant never made much of an effort at rehabilitation and that defendant avoided parole supervision.
In the circumstances, the trial court properly exercised its discretion when it concluded that it was inappropriate to strike prior convictions.
Defendant also raises a claim that the trial court’s exercise of its Romero discretion in this case denied him due process. He failed to object in the trial court on due process grounds. Consequently, the claim is waived. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1155.) If not waived, we decline to address the claim as points “‘perfunctorily asserted without argument in support’” need not be addressed. (People v. Williams (1997) 16 Cal.4th 153, 206.)
DISPOSITION
The judgment is affirmed.
We concur:
DOI TODD, Acting P. J. ASHMANN-GERST, J.