THE PEOPLE, Plaintiff and Respondent, v. JESUS VEGA, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Jesus Vega appeals a judgment following conviction of assault with a deadly weapon, infliction of corporal injury to a child's parent, and first degree residential burglary, with findings that he personally inflicted great bodily injury and personally used a deadly and dangerous weapon. (Pen.Code, §§ 245, subd. (a)(1), 273.5, subd. (a), 459, 12022.7, 12022, subd. (b)(1).) 1 We modify the judgment to impose court security fees and court facilities assessments, but otherwise affirm. (§ 1465.8, subd. (a)(1); Gov.Code, § 70373, subd. (a).)
FACTS AND PROCEDURAL HISTORY
Vega and Elizabeth Lopez lived on Franklin Lane in Ventura with their two-year-old son, S. In the spring of 2007, Vega and Lopez argued and she and S. moved to Santa Barbara. Vega provided childcare for S., however, and he and Lopez spoke frequently.
Lopez informed Vega that she planned to return to the Franklin Lane residence and retrieve furniture and S.'s belongings. Vega recommended that she ask Salomon Perez–Ortiz to assist her. Vega and Perez–Ortiz were coworkers at a bakery shop.
On the morning of May 12, 2007, Lopez and Perez–Ortiz arrived at the Franklin Lane residence. Lopez and S. went inside and spoke with Vega. Lopez then went into the bathroom, and Vega and Perez–Ortiz went to the garage to retrieve a box of toys. Shortly thereafter, Lopez heard Perez–Ortiz cry, “Jesus, don't hit me.” S. began crying and Lopez looked toward the garage. She saw Vega, holding a baseball bat, run toward her.
Lopez ran from the residence to the home of a neighbor, Margarita Raman. Raman opened the door, and Lopez ran inside. Vega followed, pushing his way inside the home. Raman and her children fled into the street and Raman summoned police officers. Inside the residence, Vega struck Lopez many times with the baseball bat, causing defensive bruises to her arms, legs, and back. Eventually, he ceased his attack and left the residence. Lopez went into the street and saw Perez–Ortiz who was “all bloody and ․ full of blood.”
In previous incidents, Vega had threatened Lopez and her family. On another occasion, he bound her hands, taped her mouth closed, and sexually assaulted her.
Perez–Ortiz testified at the preliminary examination that Vega struck him in the head and arm with the baseball bat five times. Perez–Ortiz's back was towards Vega when Vega struck the first blow. Perez–Ortiz required emergency hospital treatment to close his wounds and now suffers from numbness in his arm.
Raman testified at trial that she saw Vega chase Lopez into her home as he waved a baseball bat. She and her children fled but heard noises and Lopez cry out. Raman also saw Perez–Ortiz standing in the street with bloody head injuries. When she returned to her home, Raman found damage to the bathroom wall.
Ventura police officers arrived and forcibly entered Vega's residence. Officers pulled Vega from underneath his bed and arrested him. They found blood spots inside the residence as well as a baseball bat. Investigating officers later interviewed Lopez and Perez–Ortiz at the hospital.
In 2002, Vega was married to Maria Vega and the couple had two children. In February 2002, Vega struck Maria and prevented her from leaving their residence. Police officers later arrived and arrested Vega for committing domestic violence. At the present trial, Maria testified that she lied about the 2002 incident and that Vega had not struck her. The couple remain married and Vega provides financial support for the children.
Vega testified and denied committing acts of domestic violence against Maria or Lopez. He also stated that he struck Perez–Ortiz and Lopez with a bat because he initially believed they were intruders trying to assault him. Vega denied giving Lopez permission to take any property from his residence. He also denied striking Lopez with the bat inside the neighbor's residence.
Prior Testimony of Lopez and Perez–Ortiz
Neither Lopez nor Perez–Ortiz testified at trial. Each testified at the October 31, 2007, preliminary examination, however, and Lopez also testified at a May 23, 2008, videotaped conditional examination. The trial court permitted the prosecutor to present Perez–Ortiz's preliminary examination testimony and Lopez's conditional examination testimony at trial because their present whereabouts in Mexico are unknown. (Evid.Code, § 240, subd. (a)(4) & (5).) The parties stipulated that the prosecutor issued subpoenas in 2010 to Lopez and Perez–Ortiz, but the subpoenas were returned and not served. A prosecutorial investigator also testified regarding his efforts to locate Lopez and Perez–Ortiz.2
Conviction and Sentencing
The jury convicted Vega of assault with a deadly weapon (count 1 – Perez–Ortiz), infliction of corporal injury to a child's parent (count 2 – Lopez), and first degree residential burglary (count 3 – Raman). (§§ 245, subd. (a)(1), 273.5, subd. (a), 459.) It also found that he personally inflicted great bodily injury upon Perez–Ortiz and that he personally used a deadly and dangerous weapon against Lopez. (§§ 12022.7, 12022, subd. (b)(1).) The trial court sentenced Vega to a six–year prison term, including a five-year term for count 1 and a great bodily injury enhancement, a one-year term for count 2, and a concurrent four-year term for count 3. The court stayed sentence for the personal weapon use enhancement pursuant to section 1170.1, subdivision (g). It also imposed a $200 restitution fine, a $200 parole revocation restitution fine, and a $1,524 probation investigation fee and ordered victim restitution at the victims' requests. Although not orally pronounced at sentencing, the abstract of judgment reflects $90 in court security fees and $90 in court facilities assessments. (§ 1465.8; Gov.Code, § 70373, subd. (a).) The court also awarded Vega 110 days of presentence custody credits.
Vega appeals and contends that admission of Lopez's conditional examination testimony and Perez–Ortiz's preliminary examination testimony denied him his Sixth Amendment right to confront witnesses. The Attorney General responds, and also points out that the trial court failed to orally pronounce imposition of mandatory court security fees and court facilities assessments. (§ 1465.8, subd. (a)(1); Gov.Code, § 70373, subd. (a).)
Vega argues that the trial court's ruling permitting the prior testimony of unavailable witnesses Lopez and Perez–Ortiz denied him his federal and state constitutional rights to confront witnesses. He questions the prosecutor's diligence in attempting to locate Perez–Ortiz and requests that we independently decide the issue of diligence. (People v. Cromer (2001) 24 Cal.4th 889, 901 [appellate courts should independently review trial court's determination that prosecution's failed efforts to locate an absent witness are sufficient to justify an exception to the defendant's constitutionally guaranteed right of confrontation].) Vega asserts that the investigator's efforts here were not of requisite “substantial character.” (Id. at p. 904 [“due diligence” connotes “persevering application, untiring efforts in good earnest, efforts of a substantial character”].) He points out that the prosecution did not attempt to locate Perez–Ortiz or Lopez in Mexico but limited its search to personal and computer searches in Ventura County.
The constitutional right to confront witnesses is not absolute. (People v. Herrera (2010) 49 Cal.4th 613, 621.) An exception exists where a witness is unavailable but has given testimony at a previous judicial proceeding against the same defendant and was subject to cross-examination. (Ibid.) “Pursuant to this exception, the preliminary hearing testimony of an unavailable witness may be admitted at trial without violating a defendant's confrontation right.” (Ibid.) This traditional exception is codified in Evidence Code section 1291, subdivision (a)(2). (Ibid.)
A witness is unavailable within the meaning of Evidence Code section 1291 if he 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, subd. (a)(5).) Factors that the court should consider in determining whether the prosecutor has shown reasonable diligence include the timeliness of the search, the importance of the witness's testimony, and whether leads to the witness's possible location were reasonably explored. (People v. Thomas (2011) 51 Cal.4th 449, 500.) We independently review the prosecution's claim of good faith and reasonable diligence. (People v. Herrera, supra, 49 Cal.4th 613, 623.)
Here the prosecution exercised reasonable diligence in attempting to locate Lopez and Perez–Ortiz.
Prior to her conditional examination, Lopez informed the court that she planned to move to Mexico to a location that was an 18–hour bus trip from Santa Barbara. Lopez explained that she was not in the United States legally, did not have sufficient means to support herself and her children in the United States, and intended to live with her family in Mexico. She also stated that the father of her two older children lived in Mexico. In 2009, District Attorney investigator Ralph Martinez attempted to locate Lopez through her cellular telephone number and former address, but his efforts were unsuccessful. He also contacted the victim advocate's office, but that office had no recent contact with or additional information regarding Lopez. The prosecutor attempted to serve a subpoena on Lopez in 2010, but the subpoena was returned unserved. It would have been better to have asked Lopez her intended address in Mexico. Whether Lopez would have had that information is an open question. Lopez had been cooperative in the investigation and criminal prosecution. There is no reason to suppose she would not be cooperative or that her contact with the prosecution would cease when she moved to Mexico.
In 2009, Martinez endeavored to locate Perez–Ortiz. He employed skip-tracing techniques, and searched law enforcement data bases to determine if Perez–Ortiz was confined in jail or prison. He telephoned Perez–Ortiz's last known phone number and learned that Perez–Ortiz had moved. In 2010, Martinez spoke with Perez–Ortiz's former roommate. The roommate stated that Perez–Ortiz had moved to Mexico the prior year, but did not have additional information. Subpoenas mailed to Perez–Ortiz's last known address were returned unserved.
Although the prosecution knew that Lopez and Perez–Ortiz were in Mexico, it did not know the specific area within Mexico. The prosecution also had no reason to believe that either witness was involved in criminal proceedings in Mexico or imprisoned in that country. “ ‘ “The lengths to which the prosecution must go to produce a witness ․ is a question of reasonableness.’ [Citation.] The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness.' ” (People v. Herrera, supra, 49 Cal.4th 613, 622.)
The Attorney General points out that the trial court did not impose mandatory court security fees and court facilities assessments for each of the three convictions. (§ 1465.8, subd. (a)(1); Gov.Code, § 70373, subd. (a).) The Attorney General is correct; the fees are mandatory and may be imposed on appeal. (People v. Woods (2010) 191 Cal.App.4th 269, 272, 274.) We modify the judgment to impose three $30 court security fees and three $30 court facilities assessments. The abstract of judgment correctly reflects imposition of these fees, however, and need not be amended. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED.
I concur in the result and all portions of the opinion except the discussion of the admissibility of the prior testimony of victim Perez–Ortiz.
I respectfully disagree with the majority's conclusion that the prosecution exercised “reasonable diligence in attempting to locate ․ Perez–Ortiz.” (People v. Cromer (2001) 24 Cal.4th 889, 901.) I do not believe that the record fairly supports a conclusion that the prosecution's efforts demonstrated the requisite perseverance, untiringly earnest good efforts of a substantial character and competent exploration of a witness's possible location. (People v. Herrera (2010) 49 Cal.4th 613, 622 [construing the reasonable diligence required under Evid.Code, § 240].)
To the contrary, the evidence produced at the hearing on Perez–Ortiz's unavailability demonstrated only that investigator Martinez went on-line using a search engine in an effort to locate residence and work addresses, called a telephone number that was at least a year out of date, learned that the witness had moved, a fact he already knew, and confirmed the witness had not been arrested or jailed. This was a “Google” and telephone search; shoe leather never hit the street. The key element establishing Perez–Ortiz's unavailability was the “belief” that he was in an unknown location in Mexico. The evidence establishing this “fact” was a statement made to Martinez during a telephone conversation with a person identified only as Perez–Ortiz's “ex-roommate.” He told Martinez that Perez–Ortiz had left the previous year, had moved to Mexico and that he had no other information about him. With the exception of the move to Mexico, the investigation disclosed nothing that had not been known for over a year and was as valueless then as at the time of trial.
This insufficient showing supposedly was shored up by a stipulation that unsuccessful attempts to serve subpoenas were made by mail or in person to an address long known to be of no use thereby adding nothing to establish a good faith (or any) effort. This showing is insufficient to override the right of confrontation guaranteed by both the federal and state Constitutions. (U.S. Const., 6th Amend.; Cal. Const., art I,
§ 15; People v. Herrera, supra, 49 Cal.4th at p. 620; People v. Sandoval (2001) 87 Cal.App.4th 1425, 1438–1444.)
Nonetheless, the fact remains that there is no demonstrable prejudice flowing from the admission of the preliminary hearing testimony. First, the absence of the witness worked in appellant's favor. Perez–Ortiz was not present at trial to contradict appellant's version of the two attacks. Moreover, the evidence presented at trial, including the testimony of a neighbor who overheard the attacks, the former testimony of the other victim, the proof of the injuries sustained by the victims, and appellant's arrest under the bed preclude a finding of prejudice.
I therefore concur in the result.
NOT TO BE PUBLISHED.
Patricia M. Murphy, Judge
Superior Court County of Ventura
Kathleen M. Redmond, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Baine P. Kerr, Deputy Attorney General, for Plaintiff and Respondent.
FN1. All further statutory references are to the Penal Code unless otherwise stated.. FN1. All further statutory references are to the Penal Code unless otherwise stated.
FN2. Although the crimes occurred on May 12, 2007, trial was held in July 2010. Defendant requested at least 20 continuances in the interim, some over the People's objections. Other continuances were also granted; some were requested by the People and some were requested jointly.. FN2. Although the crimes occurred on May 12, 2007, trial was held in July 2010. Defendant requested at least 20 continuances in the interim, some over the People's objections. Other continuances were also granted; some were requested by the People and some were requested jointly.