People v. Smith CA4/1

Filed 6/19/14 P. v. Smith CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D064347

Plaintiff and Respondent,

v. (Super. Ct. No. SCD242971)

JOSHUA FANNON SMITH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Runston

G. Maino, Judge. Reversed and remanded.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant

Attorneys General, Melissa Mandel, Alana Cohen Butler, Deputy Attorneys General, for

Plaintiff and Respondent.
 A jury convicted Joshua Fannon Smith of battery causing serious bodily injury

(Pen. Code,1 § 243, subd. (d); count 1) and assault by means likely to produce great

bodily injury (§ 245, subd. (a)(4); count 2). The jury further found, as to both counts, that

Smith personally inflicted great bodily injury within the meaning of section 1192.7,

subdivision (c)(8) and, as to count 2, also within the meaning of section 12022.7,

subdivision (a). Smith admitted allegations that he had been convicted of two or more

felony offenses making him presumptively ineligible for probation (§ 1203, subd. (e)(4)),

and that he had suffered three prior prison convictions (§§ 667.5, subd. (b), 668), one

serious felony prior conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and one

prior "strike" conviction (§§ 667, subd. (b)-(i), 1170.12, 668). The trial court sentenced

Smith to a prison term of 16 years consisting of a doubled midterm, six years, on count 2

plus a consecutive three-year enhancement for the bodily injury allegation on that count,

five years for the serious felony prior conviction, and one year each for Smith's second

and third prison priors.

Smith contends the trial court violated his Sixth Amendment right of confrontation

by admitting into evidence the preliminary hearing testimony of an out-of-state witness

who was not legally unavailable. We agree and reverse the judgment.

1 Statutory references are to the Penal Code unless otherwise specified.
2
 FACTUAL AND PROCEDURAL BACKGROUND

On the afternoon of August 13, 2012, Melvin Ellis was seated in a San Diego

trolley with his friend Rockland Blake, talking about Ellis's social security paperwork,

when a man who had been sitting in the same car about four or five seats in front of Ellis

approached Ellis. The man said to Ellis, "I heard what you were talking about." Ellis did

not know what the man was talking about. The man repeated his statement more

aggressively and then began punching Ellis hard in the face and head, breaking Ellis's

glasses in the attack.2 The attack lasted 15 to 30 seconds. When the trolley stopped, the

man jumped off and ran away. Blake called 911.

San Diego Police Officer Mark Hendricks was called to the trolley stop and

separately spoke with Ellis and Blake. Ellis was crying and upset and had dried blood on

his face. He was strapped to a gurney. Ellis described his attacker as an approximately

five-foot eight-inch tall Hispanic male, with a medium build and lots of tattoos on his

face and body, wearing a gray shirt and blue jeans. Blake told Officer Hendricks that the

attacker was of medium height with lots of tattoos. Blake did not describe any particular

tattoo; he was angry and uncooperative because of the officer's delayed arrival.

Officer Hendricks's report, which he wrote within minutes of getting the

information and reviewed for accuracy, did not indicate that Ellis said anything about a

"V" or "SD" on the assailant's face, or anything at all about facial tattoos; the officer had

written that Ellis described the attacker as having tattoos all over his body. Officer

2 Ellis testified he had one nearsighted eye and one farsighted eye, making it hard
for him to read and at times causing his far vision to be blurry.
3
Hendricks's report indicated that Blake likewise described the attacker as a Hispanic male

with tattoos; there was nothing in his report about facial tattoos, a "V," "B," or "SD," or

any kind of lettering on the man's forehead.

Ellis suffered lacerations requiring stitches and his nose was broken in two places;

he required surgeries on his left eye and nose. He had blood in his eyes during the attack

and problems with his vision since the attack.

Identification, Photographic Lineup and Smith's Arrest

The day after the incident, Ellis spoke with transit security officer Gideon Arnold,

told him what had happened, and asked if there was any surveillance tape or report taken.

Arnold was a private contractor and not a sworn police officer, and had no training on

eyewitness identifications or lineups. Ellis testified at trial that he gave Arnold the same

description he had given to police: that his attacker was covered with tattoos on his face,

specifically a "VB" on his forehead, and was probably Mexican. According to Arnold,

Ellis told him the man had a "V" and a "B" tattooed on his face. Arnold believed he had

seen a man on the trolley over the past six months matching that description, and on

August 15, 2013, he surreptitiously photographed Smith with his "Blackberry" device,

which had a two and a half-inch screen.

A few days later, Arnold showed Ellis the picture of Smith on the device, zooming

in on Smith's face. Ellis testified that as soon as he saw the picture, he knew the man in it

was his attacker. Ellis testified he had never seen Smith on the trolley before or after the

incident until the day of trial; though he had seen others with many facial tattoos on the

trolley. He explained those individuals did not seem aggressive or interested in him.

4
 San Diego Police Detective Nicholas Kelbaugh was assigned the matter later in

August, and contacted Ellis, Blake and Arnold on August 22, 2012. Blake described the

assailant to Detective Kelbaugh as a white Hispanic male with numerous tattoos over his

face and body. Ellis described his assailant as a white Hispanic with a lot of tattoos on

his face, specifically, a "VH" or "VHB." Ellis also told the detective that a trolley officer

might have information that could lead to the suspect's identification. Detective

Kelbaugh called Arnold, who told the detective he had contact with the person who he

believed assaulted Ellis, photographed him, and showed the photograph to Ellis.

Detective Kelbaugh did not get the photograph from Arnold, but Arnold sent Detective

Kelbaugh an e-mail containing a narrative from Arnold's report.

Detective Kelbaugh's notes of Ellis's interview did not indicate that Ellis had

described facial tattoos or a "V" or "B." The detective's notes of Blake's interview

likewise did not indicate Blake said anything about facial tattoos, only that the man was a

Hispanic male with tattoos.

With the information from Ellis, Blake and Arnold, Detective Kelbaugh conducted

a computer search and found Smith, who has an extensively tattooed head including a

large "V" on his forehead, and large capital letters "VHB" on his chin. He prepared a

photographic lineup with five other photos, and eventually separately showed it to Ellis

and Blake.3 Ellis looked at the lineup and in seconds identified the man in position No.

1, who was not Smith. Ellis was "adamant" this man was his attacker. Detective

3 The detective presented the photo lineup to Ellis and Blake on September 4, 2012,
after Smith's arrest.
5
Kelbaugh had Ellis circle and sign the lineup, and the detective wrote, "That's him," in a

comment line. Blake, on the other hand, immediately identified the man in position No.

3, who was Smith. He was also adamant that this was Ellis's attacker.

On August 24, 2012, Smith was arrested. At that time, there were no reports of

any bruising, injuries or healing wounds on Smith's hands. Detective Kelbaugh was not

aware that Smith was wearing or in possession of any grey shirts or blue jeans, there was

no clothing with any kind of blood or anything that could be traced back to Ellis, and

there was no forensic evidence tracing the crime to Smith.

The Preliminary Hearing and Smith's Failure to Appear for Trial

At the preliminary hearing, Blake testified that it was Smith who approached the

men that day and assaulted Ellis. Blake stated he recognized Smith by his head and neck

tattoos, particularly the distinctive "V" on his forehead and an "SD" on the "back of his

forehead [sic]," which Blake saw when the assailant left the trolley. Blake spoke to a

police officer after the incident, but according to Blake, he did not provide a description

of Smith's tattoos because the officer did not want to hear that information. Blake

testified that he told the officer the assailant looked Hispanic, was 20 to 30 years old, was

of medium height, and had tattoos all over his face, head and arms.

Trial was set for January 7, 2013. Smith failed to appear on that day and the court

issued a bench warrant. Smith was located, and on January 17, 2013, he appeared in

court. The court reinstated his bail and rescheduled the trial to March 8, 2013.

Trial Scheduling and Motion to Admit Blake's Preliminary Hearing Testimony

6
 On February 1, 2013, Smith's trial was trailed to April 16, 2013. On April 16,

2013, it was again trailed to April 19, 2013. On April 19, 2013, the court heard the

People's motion to introduce the preliminary hearing testimony of Blake, who they

claimed was unavailable as a witness. Smith's counsel argued Blake was not unavailable

because the prosecution knew he was in Michigan, which was part of the Uniform Act to

Secure the Attendance of Witnesses from without the State in Criminal Cases (§ 1334 et

seq.; the Uniform Act).4 Defense counsel argued it was imperative that the jury see

Blake testify.

Hearing Regarding the People's Efforts to Locate Blake

On April 22, 2013, the court held an evidentiary hearing as to whether the People

had exercised reasonable diligence in locating Blake and complying with the Uniform

Act for purposes of determining Blake's unavailability for trial. The People presented

testimony from Mel Sosa, an investigator with the San Diego District Attorney's office,

and two District Attorney paralegals, Doemoni Eynon and Samantha Vasquez.

4 Under the Uniform Act as adopted in California, when a person is a "material
witness" in a prosecution pending in this state, the judge of the court in which the
prosecution is pending may issue a certificate specifying the number of days the witness
will be required, which must be presented to a judge of a court of record in the county of
the sister state in which the witness is found. (People v. Cogswell (2010) 48 Cal.4th 467,
475.) The witness is to be compensated for certain travel and other expenses, and paid
statutory witness fees. (Ibid.) If the sister state has adopted the Uniform Act and
receives such a certificate, it must direct the witness to appear at a hearing, at which it
will decide if the witness is material and necessary, that it will not cause undue hardship
to the witness to be compelled to attend and testify, that California laws will protect the
witness from arrest while the witness is present, and the witness will be paid the required
fees. (Ibid.) If the sister state court makes those determinations, it must issue a subpoena
directing the witness to attend and testify in the California court. (Ibid.) The state of
Michigan has adopted the Uniform Act. (See Mich. Comp. Laws Ann., § 767.91 et seq.)
7
 Investigator Sosa testified that on February 8, 2013, he received a request to locate

Blake so Blake could be served with a subpoena. Sosa looked at various law

enforcement databases, including a parolee database, ARJIS (Automated Regional Justice

Information System), and "Accurint" to find contact information, but Blake was listed as

transient at the time. Because Blake had been discharged from parole, there was no file

at state parole for him, though the parolee database contained his information. There was

nothing indicating Blake had had any contact with police. Sosa did not interview Ellis,

do any forwarding address searches, run any civil or domestic file checks, look at county

assessor information, or run any Department of Motor Vehicle checks on Blake. Sosa

testified he felt the other databases such as Accurint would give the most accurate

information.

Paralegal Eynon testified that on April 5, 2013, Sosa asked her for assistance to

locate Blake. Her notes showed that Sosa had run a search on February 8, 2013, and

again on February 26, 2013, at which time there were hits for Blake's whereabouts in San

Diego and Michigan. On April 5, 2013, Eynon re-ran all of those searches in addition to

others. She checked databases for vehicle information, county, traffic citations, parolees,

property summaries, custody, law enforcement contacts, criminal history, and Accurint.

She immediately found hits possibly in Ypsilanti, Michigan, but could not confirm that.

According to Eynon, Sosa's Accurint printout showed Blake had multiple addresses in

Michigan, with two addresses in March 2013: one in San Diego, and one in Ypsilanti,

Michigan. Eynon gave her information to Sosa on April 5, 2013. Her notes indicated

8
that on April 8, 2013, Sosa interviewed a witness she had provided him, and then Sosa

was able to verify an exact address for Blake in Michigan.

Sosa testified he interviewed Blake's mother on April 8, 2013. She told Sosa that

Blake had tried to contact her a few months before but she wanted nothing to do with

him, and that he was going to be moving out of California to a state starting with the

letter "M." Two days later, Sosa learned that Blake had registered on April 1, 2013, as a

sex offender in the state of Michigan. Sosa forwarded that information, which included

an address, to District Attorney paralegal Vasquez.

Paralegal Vasquez testified that she had been assigned to Smith's trial since at least

the preliminary hearing; her duties included finding witnesses and coordinating them for

trial. She was in contact with Blake during the preliminary hearing, and she

communicated with him for the trial when it was scheduled for January 7, 2013. Blake

had been subpoenaed and was cooperative. Blake told her around the time of the January

7, 2013 trial that he would be moving back to Michigan after he was paroled. He did not

give Vasquez an address or town at that time, or the names of family or friends she could

contact. Vasquez had a working phone number for Blake and she called and spoke with

him after the January 7 trial date had passed to get his Michigan address and confirm his

phone number. He told her he would call her back after he spoke with his father, but he

did not, and did not answer Vasquez's calls or voicemails. In February 2013, Vasquez

told Investigator Sosa that Blake was moving to Michigan.

Vasquez testified she last spoke with Blake a week before the April 22, 2013

hearing after Investigator Sosa gave her an address and two phone numbers late in the

9
afternoon of April 10, 2013. On April 11, 2013, Vasquez called the Ypsilanti Police

Department and asked them to knock on Blake's door to have him call her. Blake called

her two hours later, and told her he did not want anything to do with the case; he had just

gotten a job and wanted to start his life over. Blake's work supervisor then called

Vasquez and told her Blake would not lose his job if he came out to testify. Vasquez

created a letter and subpoena and e-mailed them to Blake's supervisor. Though Vasquez

was familiar with the Uniform Act, she explained it was not a quick process and usually

took four to six weeks to effect. Her first effort to take steps on the Uniform Act was on

the morning of the April 22, 2013 hearing when she unsuccessfully tried to call the city

attorney in Michigan.

The trial court ruled that the People had exercised reasonable diligence in finding

Blake: "I don't think that one can assume that someone is going to avoid service

particularly when they have shown up for a preliminary and shown up for a trial in

January. [¶] In this due diligence, perfection is not required and we don't necessarily

look at it as do every possible thing that could have been done, but have reasonable steps

been taken[?] Then once they found the defendant was due diligence used to comply

with [the Uniform Act][?] In that regard, I believe that the first date that [the People]

could have even asked for that section to be used [was] April 11 and under no scenario

four weeks, six weeks could [the People have] . . . possibly complied with [the Uniform

Act]. So, I think that the People have carried their burden." After considering defense

counsel's arguments, the court continued: "Mr. Blake is unavailable today. That's clear.

He's out of state. He won't voluntarily return to California, and I find that the [Uniform

10
Act] is four to six weeks, and so, he's not available today." It permitted the People to

read Blake's preliminary hearing testimony to the jury.

Trial

At trial, Ellis described the incident. He testified that after he saw Arnold's

photograph, he contacted Detective Kelbaugh about the case and gave him a description

of his attacker. About a month later, after Ellis had his eye surgery, he saw Detective

Kelbaugh's photographic lineup and identified the man in position No. 1, who was not

Smith, as the attacker.

When shown the photographic lineup at trial, Ellis testified that he still believed

the man in position No. 1 to be the man who attacked him, partly because he saw a

"VBD" on that man's tattooed forehead. Ellis testified that he was "sure" this was his

attacker. Ellis did not see anyone else in the lineup that looked like the man who attacked

him. On redirect examination, Ellis stated he believed that the man in photograph No. 1

was Smith, who was sitting in court, and he believed Smith was his attacker despite the

fact he had chosen the man in photograph No. 1, who was not Smith.

Blake's preliminary hearing testimony was read to the jury. Thereafter, the court

informed the jury that Blake had been convicted in 2001 and 2002 of two felonies that

involved moral turpitude.

Officer Hendricks testified that he did not tell Blake he did not want to hear about

the assailant's tattoos; he was interested in getting the best description of the assailant and

if Blake had said something about a "V" or "B" in his description, the officer would have

written it down.

11
 Before the jury began its deliberations, two jurors sent notes. The first note from

juror No. 12 had two questions: "Since we did not see Mr. Blake may we know his race?

[¶] May we know if he wears glasses?" The second note from a different juror read: "I

looked up the Wikipedia definition of 'moral terpitude' [sic] on the internet. Did I violate

the Judge[']s instructions by doing this?" After deliberations commenced, the jury sent

another note reading: "What was Blake convicted of? Why wasn't he available[?]" In

response to the first question, the court repeated its statement about Blake's convictions

of felonies of moral turpitude in 2001 and 2002 and told the jury that was the only

relevant evidence on that issue. As for the second question, the court simply referred the

jury to CALCRIM No. 317, with which the court had previously instructed the jury to

evaluate Blake's testimony "by the same standards that you apply to a witness who

testified here in court." The jury asked for and heard a rereading of Arnold's and Blake's

testimony.

DISCUSSION

I. Confrontation Clause Principles

Both the federal and state Constitutions guarantee a criminal defendant the right to

confront the prosecution's witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.)

"The right of confrontation 'seeks "to ensure that the defendant is able to conduct a

'personal examination and cross-examination of the witness, in which [the defendant] has

an opportunity, not only of testing the recollection and sifting the conscience of the

witness, but of compelling him to stand face to face with the jury in order that they may

look at him, and judge by his demeanor upon the stand and the manner in which he gives

12
his testimony whether he is worthy of belief.' " [Citation.] To deny or significantly

diminish this right deprives a defendant of the essential means of testing the credibility of

the prosecution's witnesses, thus calling "into question the ultimate ' "integrity of the fact-

finding process." ' " ' " (People v. Herrera (2010) 49 Cal.4th 613, 620-621 (Herrera); see

People v. Roldan (2012) 205 Cal.App.4th 969, 978.)

The confrontation right " ' "is not absolute, however. An exception exists when a

witness is unavailable and, at a previous court proceeding against the same defendant, has

given testimony that was subject to cross-examination. Under federal constitutional law,

such testimony is admissible if the prosecution shows it made 'a good-faith effort' to

obtain the presence of the witness at trial." ' " (People v. Fuiava (2012) 53 Cal.4th 622,

674-675.) In California, this exception is codified in Evidence Code section 1291,5

which, when its requirements are met, permits admission of a witness's former testimony

without violating a defendant's constitutional right of confrontation. (Herrera, supra, 49

Cal.4th at p. 621.) Evidence Code section 240 addresses when a declarant is "unavailable

as a witness." (Evid. Code, § 240, subd. (a)(5).)

"A witness is unavailable if '[a]bsent from the hearing and the proponent of his or

her statement has exercised reasonable diligence but has been unable to procure his or her

attendance by the court's process.' " (People v. Fuiava, supra, 53 Cal.4th at p. 675,

5 Evidence Code section 1291, subdivision (a) provides: "Evidence of former
testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a
witness and: [¶] . . . [¶] (2) The party against whom the former testimony is offered
was a party to the action or proceeding in which the testimony was given and had the
right and opportunity to cross-examine the declarant with an interest and motive similar
to that which he has at the hearing."
13
quoting Evid. Code, § 240, subd. (a)(5); Herrera, supra, 49 Cal.4th at p. 622.)

Reasonable diligence, also referred to by the California Supreme Court as due diligence

(Fuiava, at p. 675) or " ' "a good-faith effort" ' " (People v. Bunyard (2009) 45 Cal.4th

836, 849), " ' " 'connotes persevering application, untiring efforts in good earnest, efforts

of a substantial character.' " ' [Citation.] Considerations relevant to the due diligence

inquiry 'include the timeliness of the search, the importance of the proffered testimony,

and whether leads of the witness's possible location were competently explored.'

[Citation.] In this regard, 'California law and federal constitutional requirements are the

same.' " (Herrera, at p. 622; Fuiava, at p. 675; People v. Roldan, supra, 205 Cal.App.4th

at p. 979.) Further, the requirement of due diligence "is not limited to situations in which

the prosecution is trying to find a witness who has gone missing. '[N]o less important "is

the duty to use reasonable means to prevent a present witness from becoming absent."

[Citation.] If the prosecution fails in this latter duty, it does not satisfy the requirement of

due diligence.' " (Roldan, at p. 980.)

In reviewing the trial court's determination of reasonable diligence, we defer to its

resolution of disputed facts under the substantial evidence standard but "independently

review whether the facts demonstrate prosecutorial good faith and due diligence."

(Herrera, supra, 49 Cal.4th at p. 623; People v. Roldan, supra, 205 Cal.App.4th at

p. 980.) "Ultimately, the burden is on the government to prove it has exercised good faith

and due diligence in attempting to secure a witness's attendance for trial." (Roldan, at

p. 980.)

14
 II. Unclean Hands Argument

As a threshold matter, we address the People's assertion that in view of Smith's

failure to appear for trial in January 2013 we should reject his confrontation clause

arguments "as a matter of equity" by applying the doctrine of unclean hands. Citing a

general statement from People v. Wickham (2013) 222 Cal.App.4th 232,6 that the

doctrine "prevents a party from obtaining either legal or equitable relief when that party

has acted inequitably or with bad faith relative to the matter for which relief is sought"

(id. at p. 238), the People characterize Smith's failure to appear as "wrongful conduct"

and malfeasance that "created the problem." In making these arguments, the People

purport to disavow reliance on the doctrine of forfeiture by wrongdoing (see Giles v.

California (2008) 554 U.S. 353; People v. Jones (2012) 207 Cal.App.4th 1392, 1398-

1399), which they concede is inapplicable because Smith did not engage in conduct

designed to prevent Blake from testifying.

The People's concession ends the analysis. The doctrine of forfeiture by

wrongdoing is grounded in equitable clean hands principles; it "has its foundation in the

6 In Wickham, the trial court awarded the victim 10 percent prejudgment interest on
five promissory notes as restitution. (People v. Wickham, supra, 222 Cal.App.4th at p.
237.) The defendant contended this was error because the notes stated usurious interest
rates. (Ibid.) The court rejected the argument, pointing out the defendant had "unclean
hands" in that he had pleaded guilty to obtaining the money that was the subject of the
notes by false pretenses. (Id. at p. 238.) It refused to allow the defendant to invoke the
usury laws to counteract the restitution statutes to avoid not just paying usurious interest
rates, but any prejudgment interest at all; defendant had acted " 'with bad faith relative to
the matter for which relief is sought.' " (Ibid.) The circumstances here are not
comparable.

15
maxim that no one shall be permitted to take advantage of his own wrong . . . ."

(Reynolds v. U.S. (1878) 98 U.S. 145, 159 [applying doctrine where defendant and his

first wife prevented a marshal from serving a subpoena on a witness by falsely

representing she was not present; id. at pp. 148-150]; see also Giles v. California, supra,

554 U.S. at p. 366; Crawford v. Washington (2004) 541 U.S. 36, 62 ["[T]he rule of

forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on

essentially equitable grounds."]; Davis v. Washington (2006) 547 U.S. 813, 833

[reiterating its statement in Crawford]; People v. Jones, supra, 207 Cal.App.4th at

p. 1399.) "The common-law forfeiture rule was aimed at removing the otherwise

powerful incentive for defendants to intimidate, bribe, and kill the witnesses against

them—in other words, it is grounded in 'the ability of courts to protect the integrity of

their proceedings.' " (Giles v. California, 554 U.S. at p. 374.) The doctrine is not limited

to situations where the defendant kills the witness (Jones, at p. 1399); it applies to acts

intended to prevent a witness from testifying and also to acts intended to dissuade a

witness from cooperating with law enforcement authorities. (People v. Banos (2009) 178

Cal.App.4th 483, 501.)7

7 The court in People v. Banos, supra, 178 Cal.App.4th 483 acknowledged the
codification of the doctrine in the Federal Rules of Evidence, allowing such forfeiture
when the defendant " ' "engaged or acquiesced in wrongdoing that was intended to, and
did, procure the unavailability of the declarant as a witness." ' " (Id. at p. 500.) It also
noted that Evidence Code section 1350 includes a similar limitation. (Id. at p. 500, fn. 9.)
That section provides in part: "(a) In a criminal proceeding charging a serious felony,
evidence of a statement made by a declarant is not made inadmissible by the hearsay rule
if the declarant is unavailable as a witness, and all of the following are true: [¶] (1)
There is clear and convincing evidence that the declarant's unavailability was knowingly
16
 Thus, as Smith points out, where a claim is made that a defendant by wrongful

conduct has forfeited or waived his or her right to raise a confrontation clause violation,

as is the substance of the People's argument here, application of such "clean hands"

principles to situations has been judicially limited to circumstances in which the

defendant has engaged in acts with intent or purpose to prevent a witness from testifying.

(See, e.g., People v. Hung Thanh Mai (2013) 57 Cal.4th 986, 1041, fn. 21; People v.

Streeter (2012) 54 Cal.4th 205, 240; People v. Banos, supra, 178 Cal.App.4th at p. 501;

People v. Osorio (2008) 165 Cal.App.4th 603, 611.) Here, Smith's failure to appear for

trial merely resulted in a short continuance of trial to February 2013; it cannot be said to

relate to Blake's unavailability. The People have not shown this to be a situation where

Smith misled the court or counsel about Blake's whereabouts, or did any act intended to

cause or contribute to Blake leaving the state. Absent a finding that Smith did something

with the intent or purpose of ensuring Blake's nonappearance, we have no basis to

conclude Smith's mere failure to appear forfeited his state and federal constitutional

rights of confrontation.

caused by, aided by, or solicited by the party against whom the statement is offered for
the purpose of preventing the arrest or prosecution of the party and is the result of the
death by homicide or the kidnapping of the declarant. [¶] (2) There is no evidence that
the unavailability of the declarant was caused by, aided by, solicited by, or procured on
behalf of, the party who is offering the statement." (Evid. Code, § 1350.) The parties do
not discuss this code section.

17
III. The Trial Court Erred In Finding Blake Unavailable and Admitting His Preliminary

Hearing Testimony

There is no dispute about the facts concerning the prosecution's efforts to secure

Blake's attendance for trial, and thus we independently review whether they establish

prosecutorial good faith and due diligence. (Herrera, supra, 49 Cal.4th at p. 622.) Doing

so compels us to conclude that under the circumstances, the prosecution did not make

reasonable efforts to either prevent Blake from becoming absent, or thereafter compel

Blake's presence to testify at Smith's trial.

Other than Ellis himself, who could not identify Smith from Detective Kelbaugh's

photographic lineup, Blake was the only witness to the beating who was interviewed by

police, and thus he was a key witness. (People v. Fuiava, supra, 53 Cal.4th at p. 675

[importance of witness's testimony is a factor to consider in due diligence analysis];

People v. Cromer (2001) 24 Cal.4th 889, 904.) Yet, after paralegal Vasquez told

Investigator Sosa in February 2013 that Blake was moving to Michigan, the prosecution

made no attempt to subpoena him, keep track of him or ensure they knew his

whereabouts until April 5, 2013 (11 days before trial), when Investigator Sosa asked

Eynon to rerun his computer searches. Between February and April 2013, the

prosecution was not without leads to Blake's location: at some point in February 2013,

Investigator Sosa's Accurint printout contained a Michigan address for Blake, but the

investigator did not make any effort to investigate that address or contact Michigan

authorities about Blake, who was required to register as a sex offender. (See Fuiava, at p.

675 [whether leads were competently explored is a factor in due diligence analysis].)

18
The investigator's efforts to secure Blake's attendance were desultory and untimely, we

cannot say the prosecution searched for Blake with " ' " 'persevering application, untiring

efforts in good earnest, [and] efforts of a substantial character. ' '' ' " (Herrera, supra, 49

Cal.4th at p. 622.)

These circumstances are akin to those in People v. Cromer, 24 Cal.4th 889, in

which the California Supreme Court held the prosecution failed to exercise reasonable

diligence where it lost contact with the witness two weeks after a June 1997 preliminary

hearing where witness testified cooperatively; the prosecution issued subpoenas to attend

trial in September 1997 and December 1997, but made no effort to serve them; the trial

was rescheduled from September 1997 to January 1998, but it was not until December

1997 that the prosecution made any "serious effort" to locate the witness by sending

investigators to her former residence multiple times. (Id. at pp. 903-905.) Though an

investigator learned on January 20, 1998, that the witness was living with her mother, he

did not follow up until two days later when he left a copy of the subpoena at the mother's

home, and did not return to speak with the mother or attempt to find other ways to contact

her; and apart from consulting computerized information systems, the county jail, and

the county hospital, the prosecution made no other efforts to locate the witness. (Id. at

p. 904.)

Importantly, the record suggests that if Investigator Sosa had followed up on the

Michigan leads after February 2013, those actions would have likely revealed Blake's

location. When Eynon reran Sosa's computer searches, she immediately came up with

the Michigan address in Ypsilanti, as well as information that directed Sosa to Blake's

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mother, who on April 8, 2013, confirmed Blake's move out of state. After Investigator

Sosa gave Vasquez the Ypsilanti address on April 10, she was able to find Blake right

away and he did not make a calculated effort to avoid her; he called Vasquez within two

hours after he was contacted by Ypsilanti police at his house. There is no indication

efforts to locate Blake in Michigan between February and April 2013 would have been

futile. (Herrera, supra, 49 Cal.4th at p. 622 [the law does not require the doing of a futile

act].)

Even if that were not the case, the prosecution's failure to attempt to subpoena

Blake before he left California, or invoke the procedures of the Uniform Act even after

locating Blake on April 10, demonstrates a lack of reasonable diligence. The term

"court's process" as used in Evidence Code section 240, subdivision (a)(5) "includes the

interstate processes made available by the uniform act to states which are parties to the

compact." (People v. Masters (1982) 134 Cal.App.3d 509, 523.) Paralegal Vasquez's

unsuccessful call to the Ypsilanti city attorney's office on the morning of the evidentiary

hearing to determine Blake's unavailability is not a reasonable or timely effort to obtain

interstate process.

In Barber v. Page (1968) 390 U.S. 719, a witness who had testified at the

defendant's preliminary hearing was in a federal penitentiary in Texas at the time of trial,

which began in Oklahoma. (Id. at p. 720.) The court held the witness was not

unavailable for confrontation clause purposes because the state made no effort to obtain

his presence other than to ascertain he was in a federal prison outside the state. (Id. at p.

723.) Pointing to increased cooperation between states and their adoption of the Uniform

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Act (id. at p. 724 & fn. 4), the court stated the witness's mere absence was insufficient to

establish due diligence where the state did not compel his attendance; according to the

court, "[t]he right of confrontation may not be dispensed with so lightly." (Id. at p. 725;

see also Hardy v. Cross (2011) ___ U.S. ___ [132 S.Ct. 490, 493-494] [citing Barber

with approval].)

In People v. Mendieta (1986) 185 Cal.App.3d 1032, the appellate court held the

prosecution failed to exercise due diligence in compelling a witness's attendance for trial

when at or about the time of the preliminary hearing the witness had advised the chief

investigating officer he would be leaving the state, but the prosecutor made no attempt to

serve the witness a subpoena before his departure and no attempt was made to secure his

attendance under the Uniform Act. (Id. at p. 1036.) The witness corroborated the only

other evidence of the defendant's guilt, namely, the victim's identification testimony; he

was the "only 'neutral' witness" who placed the defendant at the crime scene; and there

was no physical evidence; accordingly, the error was not harmless beyond a reasonable

doubt. (Id. at p. 1039.)

In People v. Blackwood (1983) 138 Cal.App.3d 939, the prosecutors made no

effort to use the Uniform Act to obtain interstate process for a witness they had finally

located because they believed it was unlikely the states of Alaska or Washington would

issue a subpoena because of undue hardship to the witness. (Id. at p. 947.) The Court of

Appeal concluded the prosecution did not establish it had exercised reasonable diligence

but had been " 'unable to procure the witness's attendance by the court's process' " (Id. at

p. 946, citing Evid. Code, § 240, subd. (a)(5).) It reasoned: "A guess by the prosecutor,

21
the trial court or an appellate court about what the courts of Alaska or Washington might

have done if requested to issue a subpoena for [the witness] pursuant to the uniform act

simply does not satisfy the requisite showing of inability under [Evidence Code] section

240, subdivision (a)(5). The prosecution's duty was to invoke the uniform act, not to

decide whether such action would be fruitful. [Citation.] ' "[T]he possibility of a refusal

is not the equivalent of asking and receiving a rebuff." ' " (Id. at p. 947.) The court also

rejected the People's contention that there was not enough time to secure such process:

"Reasonable diligence demands that the attempt be made to secure process under the

uniform act. Only if it in fact becomes impossible to secure the process, has the

prosecution sustained its burden. No such showing was made." (Ibid.) The court

concluded: "Although the prosecution tracked down its missing witness and offered to

pay his expenses in returning to California to testify it failed to make any attempt to use

the uniform act to obtain a subpoena for compelling his return. Where the prosecution

knows of the witness's location and procedures exist to bring the witness to court,

[Evidence Code] section 240, subdivision (a)(5) requires those procedures be employed.

Since the prosecution did not do so it was error for the trial court to permit the reading of

[the witness's] prior testimony at appellant's trial, and that error was of constitutional

dimension." (Ibid.) Likewise, in People v. Masters, supra, 134 Cal.App.3d 509,

criticized on other grounds in People v. Perez (1989) 207 Cal.App.3d 431, 436, the

appellate court held the court prejudicially erred by admitting preliminary hearing

testimony of a crime victim where the prosecution failed to use the Uniform Act to

compel her attendance; the victim was the sole witness to the robbery of her cash register,

22
she had moved out of state before trial, and had declined to return because she had started

a new job. (Masters, 134 Cal.App.3d at pp. 521-522, 526-528.) The victim's

whereabouts were known, however, and thus, her "grudging promise to appear preceded

by one promise already broken [her failure to maintain contact with the investigator]

cannot under these circumstances cause a waiver of the fundamental right of

confrontation." (Id. at p. 527.)

The People maintain these circumstances constitute an "entirely different

situation" than Masters, supra, 134 Cal.App.3d 509. They argue that in Masters, the

prosecution had "sufficient opportunity to make use of the Uniform Act" but here, the

prosecution had not located Blake until the eve of trial and was unable to utilize the

Uniform Act due to time constraints. But this argument was rejected in Blackwood,

supra, 138 Cal.App.3d 939, and it also ignores the fact that the prosecution had

ultimately determined Blake's whereabouts. Furthermore, the People had the means to

locate Blake had they acted with reasonable diligence in following the computer search

leads. Though Investigator Sosa claimed he did not discover until April 10, 2013, that

Blake had registered as a sex offender in Michigan on April 1, 2013, Eynon testified the

investigator was in possession of a Ypsilanti, Michigan address for Blake in February but

did not follow up on that "hit," which, when given to Vasquez, led to Blake's location.

We acknowledge that "[t]he prosecution is not required 'to keep "periodic tabs" on

every material witness in a criminal case' " (People v. Wilson (2005) 36 Cal.4th 309, 341)

or, absent knowledge of a substantial risk that an important witness would flee, take

preventative measures to stop a witness from disappearing. (Id. at p. 342.) But here, the

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prosecution was on notice in February that the key identification witness was moving to

Michigan, and did not take any steps to serve him a subpoena before he left or invoke the

Uniform Act after finding him. This was not a situation where Blake advised prosecutors

he planned to leave the state " 'long before [the] trial date [was] set.' " (Id. at p. 342.) By

February 1, 2013, the trial had already been trailed to April 16, 2013. Under these

circumstances, the People were obligated to take reasonable steps to secure Blake's

attendance, but failed to do so. In turn, the trial court erred by finding Blake was an

unavailable witness within the meaning of Evidence Code section 240 and admitting his

preliminary hearing testimony. This resulted in a violation of Smith's state and federal

constitutional confrontation rights.

IV. The Error Was Not Harmless Beyond a Reasonable Doubt

"Violation of the Sixth Amendment's confrontation right requires reversal of the

judgment against a criminal defendant unless the prosecution can show 'beyond a

reasonable doubt' that the error was harmless." (People v. Rutterschmidt (2012) 55

Cal.4th 650, 661; Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) " 'The

beyond-a-reasonable-doubt standard of Chapman "requir[es] the beneficiary of a

[federal] constitutional error to prove beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained." [Citation.] "To say that an

error did not contribute to the ensuing verdict is . . . to find that error unimportant in

relation to everything else the jury considered on the issue in question, as revealed in the

record." [Citation.] Thus, the focus is on what the jury actually decided and whether the

error might have tainted its decision. That is to say, the issue is "whether the . . . verdict

24
actually rendered in this trial was surely unattributable to the error." ' " (People v.

Pearson (2013) 56 Cal.4th 393, 463.)

" 'Where a fundamental constitutional right is at issue, erroneous evidentiary

rulings are seldom harmless under this standard: "An error in admitting plainly relevant

evidence which possibly influenced a jury adversely to a litigant cannot . . . be conceived

of as harmless." ' " (People v. Louis (1986) 42 Cal.3d 969, 993-994, disapproved on

other grounds in People v. Mickey (1991) 54 Cal.3d 612, 672, fn. 9.)

Here, Blake's preliminary hearing testimony was critical. Ellis's identification of

Smith as his assailant was faulty, and he admitted to having problems with his eyesight.

Setting aside the probable influence of Arnold's photograph, which was shown to Ellis

well before Detective Kelbaugh presented his photo lineup, Ellis did not pick Smith out

of the six photographs compiled by Detective Kelbaugh. Even at the time of trial, Ellis

testified he was sure his assailant was the man in the wrong photograph. Though the

prosecutor rehabilitated Ellis by eliciting his testimony that he believed the man in

photograph No. 1 was indeed the defendant, Ellis's questionable identification rendered

Blake's preliminary hearing testimony key to the jury's determination that Smith was

Ellis's attacker.

And Blake had credibility issues; he had two prior convictions involving moral

turpitude, and Blake's recorded statement to police immediately after the incident did not

identify the assailant with a "V" or "B" facial tattoo, or any facial tattoos whatsoever; his

description from the written police reports, as was Ellis's, was of a Hispanic male with

multiple tattoos on his body. The jurors plainly focused on Blake's testimony as

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evidenced by its questions asking about his race, his unavailability, whether he wore

glasses and the nature of his convictions. The record contains no physical evidence tying

Smith to the crime, no indication that Smith had suffered any injuries to his hands, no

clothing matching Ellis's description at Smith's residence. This is not a situation where

the jury's verdict was surely unattributable to the error in admitting Blake's preliminary

hearing testimony.

Having concluded Smith suffered prejudice by the trial court's admission of

Blake's preliminary hearing testimony, we reverse the judgment and remand the matter to

the trial court. In People v. Story (2009) 45 Cal.4th 1282, 1296-1297, the California

Supreme Court stated: "[W]hen reviewing the sufficiency of the evidence for purposes of

deciding whether retrial is permissible, the reviewing court must consider all of the

evidence presented at trial, including evidence that should not have been admitted.

'[W]here the evidence offered by the State and admitted by the trial court—whether

erroneously or not—would have been sufficient to sustain a guilty verdict, the Double

Jeopardy Clause does not preclude retrial.' [Citation.] Accordingly, 'a reviewing court

must consider all of the evidence admitted by the trial court in deciding whether retrial is

permissible under the Double Jeopardy Clause . . . .' [Citation.] We have followed the

high court in this regard." Here, Smith does not argue there was insufficient evidence to

support his conviction when considering all of the evidence (including Blake's

preliminary hearing testimony) that was admitted during the trial. On remand, therefore,

retrial is permissible.

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 DISPOSITION

The judgment is reversed and the matter remanded to the superior court for further

proceedings consistent with this opinion.

O'ROURKE, J.

WE CONCUR:

NARES, Acting P. J.

McDONALD, J.

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