Opinion
D072623
01-12-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL PAUL ROSAS, Defendant and Appellant.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1200782) APPEAL from a judgment of the Superior Court of Riverside County, Mac R. Fisher, Judge. Affirmed. Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Michael Paul Rosas of second degree murder. (Pen. Code, § 187, subd. (a).) It also found true the allegation that Rosas personally and intentionally discharged a firearm during the offense and proximately caused great bodily injury or death. (§§ 1192.7, subd. (c)(8), 12022.53, subd. (d).) The trial court sentenced Rosas to an indeterminate term of 40 years to life imprisonment.
Further statutory references are to the Penal Code unless otherwise specified.
Rosas appeals. He contends (1) the court prejudicially erred by refusing to allow him to introduce the former testimony of an unavailable witness, D.R., on the ground that Rosas did not exercise reasonable diligence to secure her attendance at trial; (2) if he did not exercise reasonable diligence to secure D.R.'s attendance, his trial counsel was ineffective and he is entitled to relief on that basis; and (3) the reasonable diligence requirement violates his constitutional rights to a fair trial and to present a complete defense under the circumstances here. We disagree with these contentions and therefore affirm.
FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed where relevant in the following section.
Rosas lived with his family in an apartment complex in Riverside, California. A neighbor sought Rosas's help finding her foster child, 14-year-old Christian B., who had run away from home after stealing some electronics and jewelry. Rosas found Christian and returned him to the neighbor, who screamed at Christian and threatened physical abuse. Christian was angry with Rosas and his foster mother and soon ran away again.
On December 31, 2011, Rosas threw a party in the parking lot of his apartment complex to celebrate the new year. Around 20 people attended. At the same time, Christian was riding his scooter around the neighborhood, smoking marijuana and drinking alcohol. He met his brother, 19-year-old Vincent Delgado, and told him that someone was "tripping" at Rosas's complex. Christian believed that Rosas was high on drugs and looking for him, so he needed his brother's help.
Delgado drove with two friends to the apartment complex. When they arrived, Delgado and one of the friends, Arturo Vasquez, went over to the party. The other friend remained in the car. Delgado yelled, "Who's fucking with my brother?" Christian was standing behind Delgado, either because he arrived with him or because he was already at the party.
Delgado, Vasquez and Christian were approached by Rosas's close friend, Dominic Santos. Santos tried to calm Delgado, telling him to relax and respect his friend's house. According to Santos, Vasquez then became aggressive. Vasquez signaled that he had a gun and threatened to shoot up the party. (For his part, Vasquez denied carrying a gun or threatening to shoot anyone.) Delgado stepped between Santos and Vasquez, separating them. Santos believed Delgado was trying to calm Vasquez down. At that point, however, Rosas walked up to the group, pushed Santos aside, pointed a handgun at Delgado's head, and fired a single shot.
Delgado fell to the ground. Vasquez and Christian fled, as did most of the other partygoers, including Santos. One person, Ernie Moreno, remained at the scene. Moreno lived in Rosas's apartment complex and had learning disabilities. He had been drinking heavily. When he saw the shooting, he froze in place.
Santos told a detective that Rosas swung the handgun at Delgado's head and pistol-whipped him. He did not offer that testimony at trial. Christian specifically denied seeing Rosas hit Delgado with the gun. Vasquez testified that Rosas pointed the gun at Delgado and fired.
Rosas apparently believed Delgado to be dead. Still holding the gun, he turned to Moreno and yelled at him to get rid of Delgado's body. Moreno was scared. He loaded Delgado into the trunk of his car (possibly with Rosas's assistance), drove a few blocks away and dumped him on the street.
Riverside County Sheriff's deputies responded to emergency calls from witnesses who heard the gunshot or saw Moreno leave Delgado on the street. When they found Delgado, he was still alive. Emergency personnel transported him to a hospital.
Moreno returned to the apartment complex and was arrested. He initially lied and told deputies that the shooting was about some "baby mama drama" involving a woman named Stephanie. But, after deputies confronted him, Moreno told the truth about the shooting.
The prosecution charged Moreno with first degree murder. Moreno agreed to testify against Rosas and plead guilty to voluntary manslaughter in exchange for an 11-year prison sentence and dismissal of the remaining charges against him. He was eventually sentenced to only three years in prison.
Sheriff's deputies obtained a warrant for Rosas's arrest and sought Santos for questioning. Rosas evaded capture for approximately six weeks, but then surrendered voluntarily. Santos likewise avoided speaking with law enforcement until he was arrested nine months later on unrelated juvenile delinquency allegations. After Rosas was arrested, but before Santos was found, Rosas told Santos in a recorded telephone conversation to remain in hiding and "stay like a ghost." Santos said he was Rosas's "prodigy" and would do anything for him.
After six days in the hospital, Delgado died. An autopsy revealed a single gunshot wound to Delgado's left temple, which travelled through both hemispheres of his brain. The angle of the shot was 90 degrees, or directly perpendicular to the side of Delgado's face. The skin surrounding the wound had no gunshot residue, soot, or stippling. Based on this fact, the medical examiner concluded that Delgado's wound was caused by a gunshot fired from at least two feet away. If Delgado had been wearing a thick hat, it is possible the hat would have prevented residue, soot, or stippling from reaching Delgado's skin. But a hat would not have prevented more extensive injuries caused by point-blank shot (within a quarter inch of the skin), which were also not identified on Delgado's body. When Sheriff's deputies found Delgado on the street, he was not wearing a hat. Deputies also searched the scene of the shooting and likewise did not find a hat.
The medical examiner identified some scratches and abrasions on Delgado's face and back that were consistent with falling or being dragged on concrete. But he did not find any bruising or contusions. If Delgado had been struck with a heavy object, such as a pistol, the medical examiner would have expected to find bruising or contusions. They would not have healed during the time Delgado was in the hospital.
At trial, Rosas testified in his own defense. He claimed he was holding a loaded handgun at the party because he intended to fire it into the air at midnight. He said his wife told him there was a "situation" at the party and he went over to see what was happening. He saw Santos and a few other people pushing and shoving each other. He said he pushed Santos out of the way and faced someone he did not recognize. He claimed that the person had a gun covered in a shirt or towel, which he pointed at Rosas. At that point, Rosas said, he stepped to the side, swung his right hand (which was holding his own gun), and hit the person in the face. The gun struck the person's head and accidentally went off. According to Rosas, the person was wearing a hat at the time.
Delgado's girlfriend at the time of the shooting, and the mother of Delgado's infant son, likewise testified that Delgado was wearing a black hat when he went to Rosas's apartment complex.
Rosas testified that he was shocked by the shooting. He dropped his gun and ran from the scene. He denied intending to kill Delgado and denied telling Moreno to get rid of Delgado's body. However, he could not explain how he swung the gun in such a way that it accidentally discharged directly into Delgado's temple.
In his testimony, Santos agreed that Rosas was shocked by the shooting. Santos said Rosas was in tears and exclaimed, "What did I do?"
Rosas offered testimony from Genesis Rodriguez, who is dating one of Rosas's close friends. Rodriguez said she saw Delgado push Rosas and then Rosas swung his arm at Delgado's head. She did not see a gun, but she heard a gunshot. Rodriguez said Rosas appeared shocked and fled the scene. She heard someone say, "Put the body in the trunk," but she does not know who said it.
Rosas also called two witnesses who claimed Delgado robbed them two years before the shooting. Witnesses said Delgado yelled out one or more gang names during the robbery. A detective testified that there was no evidence Delgado was a documented gang member.
DISCUSSION
I
Rosas contends the trial court erred by excluding the former testimony of Rosas's estranged daughter, 17-year-old D.R., on the ground that Rosas did not exercise reasonable diligence to secure her attendance at trial. (See Evid. Code, §§ 240, subd. (a)(5), 1291.) D.R. testified for the prosecution at Rosas's first trial on these same charges.
The trial at issue in this appeal is Rosas's third. Rosas's first trial ended with his acquittal of first degree murder but his conviction of second degree murder. However, the trial court granted Rosas's motion for a new trial based on instructional error. Rosas's second trial ended with a hung jury, and the court declared a mistrial.
A
Although the prosecution previously called D.R. to testify, it did not list her on its proposed witness list for this current trial. The defense likewise did not list D.R. as a potential witness. Rosas's counsel first informed the court he was considering calling D.R. after the prosecution had rested. The prosecutor objected, and the court scheduled a hearing to consider the issue.
At the hearing, the defense presented evidence from its investigator, Danny Davis. Davis testified that he received a request from Rosas's counsel to locate D.R. several weeks before trial. He described his efforts as follows: "I have gone back to—to the crime scene area. I've talked to neighbors, friends, family. All have either told me they don't know where she is or they didn't want to tell me where she was. I know I also did the same type of database searches to try to find her as well, with no luck." Davis continuously attempted to look for D.R. through the time of trial and "more specifically in the last few days." He did not believe further efforts would be successful in finding her.
On cross-examination, Davis admitted he had not searched court records for D.R. or her mother (Rosas's estranged wife), had not contacted the prosecution to ask for their last known contact information, did not know D.R.'s mother's current job and phone number, and was unaware of D.R.'s whereabouts after she left Rosas's apartment complex with her mother three years before. Under questioning by the court, Davis admitted that his efforts essentially consisted of returning to Rosas's old neighborhood and knocking on doors. These efforts had failed in the past, but Davis repeated them in the hope that people would change their minds and speak to him.
The court found that Davis's efforts did not constitute reasonable diligence. It noted that D.R. did not appear on Rosas's proposed witness list, and the defense did not inform the court it was having trouble locating her until late in trial. The court concluded, "[It] [s]eems that the repeated failed efforts were just repeated in an effort to get her here. No new efforts were undertaken. I think that under the totality of the circumstances [that] is unreasonable . . . ."
At the same time, the trial court considered a defense request to introduce Christian's former testimony. Christian testified for the prosecution in Rosas's two prior trials. The prosecution had listed Christian on its proposed witness list, but decided during jury selection that it would not call him. When Rosas's counsel learned this information, the defense attempted to locate Christian because it wanted to call him for the defense case. Davis, the defense investigator, contacted his counterpart on the prosecution team and obtained Christian's last known address and phone number. Davis called the phone number several times but could not reach him. He also searched several databases. Davis did not go to Christian's last known address, did not search social media, and did not contact any family members. Despite these shortcomings, the trial court found that the defense had exercised reasonable diligence to locate Christian under the circumstances. The court believed that Christian may have been suffering from drug addiction or homelessness and did not want to be found. It allowed the defense to read Christian's former testimony to the jury.
Notwithstanding the hearsay rule, the former testimony of an unavailable witness is admissible under certain circumstances. (Evid. Code, § 1291.) A witness is unavailable if, among other things, the witness 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." (Id., § 240, subd. (a)(5).) " 'The proponent of the evidence has the burden of showing by competent evidence that the witness is unavailable.' " (People v. Foy (2016) 245 Cal.App.4th 328, 339 (Foy).)
"In requiring that prior testimony be admissible at trial only when the person who previously testified has later become unavailable to testify, the Legislature sought to ensure that 'only when necessary' is prior testimony to be substituted for live testimony, which is generally 'the preferred form of evidence.' [Citation.] Live testimony compels a witness 'to stand face to face with the jury' so it 'may look at him and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.' [Citation.] But that assessment by the jury ' "is severely hampered" ' when the ' "witness is absent and when his prior testimony is read into evidence." ' " (People v. Cogswell (2010) 48 Cal.4th 467, 476-477 (Cogswell).)
" '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. Prior decisions have taken into consideration not only the character of the proponent's affirmative efforts but such matters as whether he 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].' " (People v. Sanders (1995) 11 Cal.4th 475, 523 (Sanders).) In addition, where the proponent of the witness's testimony is the defense, the court may consider the defense's relative lack of resources when compared with the prosecution. (People v. Linder (1971) 5 Cal.3d 342, 348 (Linder); People v. Forgason (1979) 99 Cal.App.3d 356, 362, 364 (Forgason).)
Our Supreme Court has not determined whether to review a trial court's diligence finding for abuse of discretion or de novo. (Sanders, supra, 11 Cal.4th at p. 523.) We likewise need not decide the issue. Under either standard, we conclude the trial court properly found that the defense had not exercised reasonable diligence to secure D.R.'s attendance at trial.
Davis, the defense investigator, did little more than contact members of Rosas's family (who were estranged from D.R. and her mother), speak to former neighbors (in a location where D.R. had not lived for almost three years), and search several computer databases (the content and character of which are unknown). Neither Davis nor Rosas's counsel reached out to the prosecution for assistance, even though the prosecution had secured D.R.'s attendance at Rosas's first trial and appeared to have several relevant pieces of information about D.R.'s whereabouts. The defense did not tell the prosecution or the court it was having difficulty locating D.R.—or that it intended to call D.R. at all—until after the prosecution rested and the defense case was ongoing. There is no indication that D.R. or her mother were in hiding, hostile to the idea of testifying, or difficult to locate.
Sanders is instructive. In that case, as here, the defense was aware of the nature and importance of the absent witness's testimony. (Sanders, supra, 11 Cal.4th at p. 524.) Efforts to locate the witness began only during trial, and those efforts consisted of "a single phone call to her former work number and several visits to her former address." (Ibid.) The Supreme Court concluded, "Attempts to obtain information from [the witness's husband] or anyone else at the address were perfunctory; no relatives, friends, or coworkers appear to have been contacted. In sum, the record suggests that the defense was insufficiently diligent in attempting to determine from [the witness's] husband or anyone else where [the witnesses] might be located." (Id. at pp. 524-525.)
Here, although the defense began its search prior to trial, its efforts were similarly perfunctory. The defense made no real effort to reach beyond immediately available sources of information, such as Rosas's family and their former neighbors. A reasonable litigant under the circumstances would have gone promptly to the prosecution and the court to seek assistance in locating a former prosecution witness. Because the defense here failed to do so, it did not satisfy the reasonable diligence requirement.
Rosas correctly notes that the mere fact that additional efforts could have been pursued does not necessarily render the proponent's efforts unreasonable. (See, e.g., People v. Cummings (1993) 4 Cal.4th 1233, 1298 (Cummings).) But, as Rosas acknowledges, the efforts the proponent does undertake must be reasonable under the circumstances. Here, for the reasons explained above, Rosas's efforts were not reasonable.
In Cummings, which Rosas cites approvingly, the prosecution began its search more than a year before the absent witness's testimony was needed. (Cummings, supra, 4 Cal.4th at p. 1297.) An investigator made 22 separate attempts to locate the witness, including speaking with the witness's mother, speaking by telephone with the witness herself, going to the witness's confirmed address, and enlisting the help of multiple police officers in serving a subpoena. (Id. at p. 1297 & fn. 39.) When the trial court refused to find the witness unavailable, the prosecution undertook additional measures, including issuing a body attachment order in the countywide police computer network, surveilling the witness's house every night during the one-week trial, and asking the witness's apartment manager and neighbors to notify police when the witness returned. (Id. at p. 1297.) The investigator then went again to the witness's mother's home, confirmed the witness's address with the Department of Motor Vehicles, and checked her last known employer. (Ibid.) Our Supreme Court found, on independent review, that the prosecution's efforts were reasonable. (Ibid.) The contrast with the efforts here is evident.
Similarly, in People v. Diaz (2002) 95 Cal.App.4th 695, which Rosas also cites, a police officer offered the following description of his efforts to locate a prosecution witness: "[H]e made more than five attempts to personally serve [the witness] with the subpoena at the beginning of the trial. He spoke to her mother, who said she had no information. He went to schools [the witness] had attended, but he got no leads. He asked patrol officers on all three shifts to look for [the witness], but they were unable to find her. In his presence, the victim made telephone calls to [the witness's] mother and brother. According to the brother, [the witness] knew the police were looking for her and she was determined not to testify. [The officer] checked with local hospitals and the Department of Motor Vehicles. He checked to see if [the witness] had been arrested recently." (Id. at pp. 706-707.) The trial court found, and the reviewing court agreed, that " 'given the particular circumstances of this case, . . . the witness is actually making a calculated effort to avoid service of process.' " (Id. at p. 707.) Rosas has not pointed to any such evidence of avoidance in this case.
Rosas focuses on the fact that it was the defense, not the prosecution, that sought D.R.'s attendance. He argues that the trial court gave inadequate weight to the fact that the defense has fewer resources to locate witnesses than the prosecution and prior cases involving the prosecution are distinguishable. Here, however, the more constrained resources of the defense were not the problem. It would have taken little time or effort to list D.R. on the defense's proposed witness list, to have contacted the prosecution to obtain the latest contact information for D.R.'s family, and to have solicited the court's advice and assistance in finding D.R. in a timely fashion. Based on our independent review under all the circumstances, the defense's efforts were not reasonable even considering its more limited resources.
Rosas also points to a passage in Forgason, supra, 99 Cal.App.3d 356, where the court appears to add an additional element of prejudice to the analysis of unavailability: "Moreover, it seems to us that another important consideration would be the degree of prejudice ensuing to one, or the other, of the parties from a ruling such as the trial court here was called upon to make. No legitimate complaint of prejudice would seem to attend admission of previous testimony of absent witnesses who, as here, had been thoroughly cross-examined by the People. On the other hand, its rejection, as conceded by the trial court would be 'significant' and, 'should there be a conviction in this case, . . . no doubt the error of the court would be prejudicial error and be grounds for a new trial.' For in such a case [the defendant] would have been deprived of his only defense." (Id. at p. 364.)
Forgason's prejudice requirement does not appear to have been adopted by other courts, and our Supreme Court has not identified it as a factor in the admission of former testimony. While prejudice may have some relevance to a defendant's constitutional rights to a fair trial and to present a complete defense (see part II, post), prejudice in general does appear to be relevant to the analysis of a witness's unavailability under the Evidence Code. Indeed, if Forgason's prejudice requirement were adopted, it would appear to displace the established analysis under the Evidence Code whenever the former testimony of a criminal witness was at issue. This result directly contradicts the Legislature's intent in enacting this portion of the Evidence Code, which was to ensure the appearance of live witnesses. (See Cogswell, supra, 48 Cal.4th at pp. 476-477.) While it may be difficult to quantify, the prejudice from introducing former testimony, rather than requiring live testimony, is inherent. (See ibid.; cf. Foy, supra, 245 Cal.App.4th at p. 351 [rejecting a prosecution argument that admission of former videotaped testimony, rather than live testimony, was not prejudicial error].) The prosecution was not required to show some specific additional prejudice to invoke the reasonable diligence requirement of the Evidence Code.
B
Even if the trial court had erred by finding that Rosas had not exercised reasonable diligence and excluding D.R.'s testimony, we would conclude Rosas has not shown prejudice. As an error under state law, we apply the standard of prejudice in People v. Watson (1956) 46 Cal.2d 818 (Watson). (Linder, supra, 5 Cal.3d at p. 348.)
" 'Under the Watson standard, prejudicial error is shown where " ' "after an examination of the entire cause, including the evidence," [the reviewing court] is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citation.] 'We have made clear that a "probability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' [Citation.]" ' " (People v. Wilkins (2013) 56 Cal.4th 333, 351.)
D.R. was 13 years old on December 31, 2011. At Rosas's first trial, she testified that she was upstairs in Rosas's apartment babysitting during the party. Walking near a window, she heard a loud bang, which she thought was a firework. She looked out the window and saw someone fall down. Rosas was on his knees yelling, "Why? Why did you do this?" Rosas had a gun next to him. As the person fell, D.R. saw a black hat fall as well. She later noticed the hat on the ground.
D.R. went with her mother downstairs and to another apartment. She saw two people putting a body into the trunk of Moreno's car. She said Moreno was like a brother to her; he acted like a big kid and they would always play together. She saw someone put a gun to Moreno's head and force him to drive away with the body. It was too dark for D.R. to identify that person. She saw someone running away, and her mother told her Rosas took off running.
Rosas argues the exclusion of this testimony was prejudicial because (1) D.R. saw a black hat associated with Delgado, thus explaining the absence of gunshot residue or stippling near the wound; (2) she confirmed Rosas was shocked after the shooting; and (3) D.R. saw two men place Delgado in Moreno's trunk, and it can be inferred that Rosas was not one of the men because he had run off. We disagree. The testimony Rosas cites was duplicative of other testimony, inconsequential in light of the evidence at trial, or both.
In addition to Rosas, Delgado's then-girlfriend testified that Delgado was wearing a black hat that night, so D.R.'s testimony on this point was largely duplicative. And, while the hat might explain why there would be no gunshot residue or stippling on Delgado's head from a close shot, it did not address other implausible aspects of Rosas's defense. It would not explain, for example, the lack of bruising or contusions from the alleged pistol whipping, the lack of injury from a contact or near-contact shot during a pistol whipping, and the exactly perpendicular alignment of Delgado's gunshot wound to his temple. Even if the jury had believed Delgado was wearing a hat, there is no reasonable chance it would have believed Rosas's defense was a reasonable explanation of the facts in light of the uncontroverted medical evidence.
Rosas's response to the shooting was also already before the jury. Santos, as well as Rosas and defense witness Rodriguez, all testified that Rosas appeared shocked after the shooting. And this evidence did not point strongly to innocence. Rosas could have been shocked by the reality of what he had done, even if he had intended to shoot Delgado. D.R.'s testimony that Rosas said "Why? Why did you do this?" is ambiguous and does not strongly support Rosas's defense. It does not affect the medical evidence discussed above and does not in and of itself indicate that the shooting was accidental.
Finally, although D.R.'s testimony would potentially contradict Moreno's belief that Rosas assisted him in removing Delgado from the scene, the exact circumstances of this removal were not central to the prosecution or defense. Given the other witnesses to the shooting, including Vasquez and Christian, the impact on Moreno's credibility from this contradiction would not have had a material effect on the outcome of the jury's deliberations.
Rosas points out that the evidence was not overwhelming and the jury in his second trial could not come to a unanimous verdict. But he has not attempted to compare the evidence before that jury with the evidence before the jury here. This jury did reach a guilty verdict, and after considering the entire record we cannot conclude that Rosas has shown there is a reasonable chance the jury deliberations would have resulted in a more favorable outcome if D.R.'s testimony had been admitted.
For the same reasons, we reject Rosas's alternative contention that the judgment should be reversed based on ineffective assistance of counsel. Rosas argues that, if he failed to exercise reasonable diligence in securing D.R.'s attendance at trial, his counsel rendered deficient performance. Even assuming Rosas's counsel rendered deficient performance, he must still show prejudice. The standard for prejudice in this context is very similar to the standard under Watson: "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington (1984) 466 U.S. 668, 694; see People v. Hart (1999) 20 Cal.4th 546, 624.) Our analysis of prejudice therefore applies equally here. Rosas has not shown there is a reasonable probability the outcome at trial would have been different if his counsel had exercised reasonable diligence and D.R.'s testimony had been admitted. --------
II
Rosas further contends that even if Evidence Code sections 240 and 1291 compel exclusion of D.R.'s testimony based on a lack of reasonable diligence, such exclusion violates his federal constitutional rights. " '[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.' [Citations.] This latitude, however, has limits. 'Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants "a meaningful opportunity to present a complete defense." ' [Citations.] This right is abridged by evidence rules that 'infring[e] upon a weighty interest of the accused' and are ' "arbitrary" or "disproportionate to the purposes they are designed to serve." ' " (Holmes v. South Carolina (2006) 547 U.S. 319, 324 (Holmes); see People v. Gonzales (2012) 54 Cal.4th 1234, 1258 (Gonzales).)
"A defendant's interest in presenting such evidence may thus ' "bow to accommodate other legitimate interests in the criminal trial process." ' " (United States v. Scheffer (1998) 523 U.S. 303, 308 (Scheffer).) "[T]he mere invocation of that right cannot automatically and invariably outweigh countervailing public interests. The integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process must also weigh in the balance." (Taylor v. Illinois (1988) 484 U.S. 400, 414-415 (Taylor).) "Relevant evidence may, for example, be excluded on account of a defendant's failure to comply with procedural requirements." (Montana v. Egelhoff (1996) 518 U.S. 37, 42 (plur. opn. of Scalia, J.).)
Rosas has not cited any authority holding that the requirement at issue here—reasonable diligence in locating an absent witness before her former testimony may be admitted—violates a defendant's constitutional rights. We likewise have found no authority directly addressing this question. We will therefore determine whether the reasonable diligence requirement is arbitrary or disproportionate to the purposes it is designed to serve. (Holmes, supra, 547 U.S. at p. 324; Gonzales, supra, 54 Cal.4th at p. 1258.)
" 'As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense.' " (People v. Mickel (2016) 2 Cal.5th 181, 218.) "Only rarely [has the United States Supreme Court] held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence." (Nevada v. Jackson (2013) 569 U.S. 505, 509.)
The United States Supreme Court's Taylor opinion, while not directly on point, is instructive. In Taylor, the high court considered a procedural rule that required a criminal defendant to disclose potential witnesses before trial. (Taylor, supra, 484 U.S. at p. 403 & fn. 2.) During trial, a defendant attempted to call a witness who had not been listed. (Id. at p. 403.) The trial court rejected this attempt. It found that the defendant's violation of the pretrial disclosure rule was willful and, on that basis, barred the witness from testifying. (Id. at p. 405.) In the Supreme Court, the defendant argued that the trial court's exclusion of the witness violated his federal constitutional right to present a complete defense. (Id. at p. 406.) The high court disagreed, explaining as follows: "The principle that undergirds the defendant's right to present exculpatory evidence is also the source of essential limitations on the right. The adversary process could not function effectively without adherence to rules of procedure that govern the orderly presentation of facts and arguments to provide each party with a fair opportunity to assemble and submit evidence to contradict or explain the opponent's case. The trial process would be a shambles if either party had an absolute right to control the time and content of his witnesses' testimony . . . . The State's interest in the orderly conduct of a criminal trial is sufficient to justify the imposition and enforcement of firm, though not always inflexible, rules relating to the identification and presentation of evidence." (Id. at pp. 410-411.)
The high court has similarly upheld other procedural requirements that impose reasonable burdens on the defense before they may offer certain types of evidence. (See, e.g., Michigan v. Lucas (1991) 500 U.S. 145 [disclosure rule regarding evidence of sexual assault victim's past sexual conduct], United States v. Nobles (1975) 422 U.S. 225 [defense investigator reports]; Williams v. Florida (1970) 399 U.S. 78 [alibi witnesses].)
Here, we are confronted with a procedural hurdle similar to those discussed above, i.e., the requirement of reasonable diligence prior to the introduction of an unavailable witness's former testimony. (Evid. Code, §§ 240, subd. (a)(5), 1291.) As previously noted (ante, at pp. 9-10), the Legislature's intent in imposing the reasonable diligence requirement was to make sure that prior testimony is substituted for live testimony " 'only when necessary.' " (Cogswell, supra, 48 Cal.4th at p. 476, quoting People v. Reed (1996) 13 Cal.4th 217, 225.) Reading the transcript of an unavailable witness's former testimony, as Rosas proposed to do here, prevents the jury from judging the witness's demeanor; omits any gestures, facial expressions, nuances, or intonation in her testimony that cannot or were not recorded in the transcript; singles out the unavailable witness in the view of the jury; places her on an uneven footing with other witnesses; and introduces the possibility of errors in transcription and reading. These deficiencies impede the ability of the jury to evaluate the evidence, increase the risk of unfairness at trial, and jeopardize the smooth functioning of the judicial system. They directly implicate the public interests the United States Supreme Court has identified as potentially justifying limitations on a criminal defendant's right to offer evidence, namely the "integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function[.]" (Taylor, supra, 484 U.S. at p. 415.)
The purpose behind the reasonable diligence requirement is to reduce the danger inherent in the admission of former testimony by securing the attendance of live witnesses where it is reasonably possible to do so. Given this purpose, and the potential dangers the reasonable diligence requirement seeks to avoid, the requirement is neither arbitrary nor disproportionate. (See Taylor, supra, 484 U.S. at pp. 415-416 ["Routine [trial] preparation involves location and interrogation of potential witnesses and the serving of subpoenas on those whose testimony will be offered at trial."]; see also People v. Jacinto (2010) 49 Cal.4th 263, 273 ["Indeed, the law requires [a defendant] to take an active role in ensuring the presence of his witnesses."].) It is constitutional.
Rosas relies on the landmark opinion in Chambers v. Mississippi (1973) 410 U.S. 284 (Chambers), but his reliance is misplaced. Chambers considered two constitutional questions. The first question involved the constitutionality of Mississippi's "voucher" rule, which prevented a defendant from treating his own witness as adverse and cross-examining or impeaching him, on the theory that a party who calls a witness " 'vouches for his credibility.' " (Id. at p. 295.) The second question involved the constitutionality of Mississippi's application of its hearsay rule, which had the effect of preventing the defendant from calling three witnesses who would testify that the "vouched-for" witness confessed to the murder of which the defendant was accused. (Id. at p. 298.) At the time, Mississippi recognized a hearsay exception for statements against pecuniary interest, but not penal interest. (Id. at p. 299.) The high court concluded that both exclusions were suspect. The voucher rule "interfered" with the defendant's right to present a defense, and the hearsay rule was unreasonable in light of the circumstances, which "provided considerable assurance of [the statements'] reliability." (Id. at pp. 298, 300.) The combination of these two constitutionally-suspect exclusions deprived the defendant of a fair trial: "We conclude that the exclusion of this critical evidence, coupled with the State's refusal to permit [the defendant] to cross-examine [his witness], denied him a trial in accord with traditional and fundamental standards of due process." (Id. at p. 302.)
Contrary to Rosas's interpretation, Chambers did not announce a general rule prohibiting the exclusion of critical defense evidence. (See Scheffer, supra, 523 U.S. at p. 317.) Indeed, Chambers confirmed that "the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." (Chambers, supra, 410 U.S. at p. 302.) The evidentiary rules at issue in Chambers simply could not be defended. (See Holmes, supra, 547 U.S. at pp. 325-326; Rock v. Arkansas (1987) 483 U.S. 44, 55; see also Montana v. Egelhoff, supra, 518 U.S. at p. 53 (plur. opn. of Scalia, J.).) Here, by contrast, the reasonable diligence requirement is neither arbitrary nor disproportionate to the purposes it is designed to serve.
For the foregoing reasons, we reject Rosas's contention that the application of the reasonable diligence requirement here violated his federal constitutional rights to a fair trial or to present a complete defense. We therefore need not consider whether Rosas forfeited this contention by failing to raise a constitutional objection in the trial court.
DISPOSITION
The judgment is affirmed.
DATO, J. WE CONCUR: BENKE, Acting P. J. O'ROURKE, J.