People v. Ke CA2/6 ( 2022 )

Filed 6/23/22 P. v. Ke CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B310622
(Super. Ct. No. GA104465)
Plaintiff and Respondent, (Los Angeles County)
v.
CHANKOSAL KE,
Defendant and Appellant.
Chankosal Ke appeals from the judgment after the jury
found him guilty of four counts of forcible oral copulation with a
minor over the age of 14 (Pen. Code, former § 288a [current
§ 287], subd. (c)(2)(C)), 25 counts of forcible rape of a minor over
the age of 14 (Pen. Code, §§ 261, subd. (a)(2), 264, subd. (c)(2)),
and three counts of forcible sodomy of a minor over the age of 14
(Pen. Code, § 286, subd. (c)(2)(C)). The trial court sentenced him
to state prison for 284 years. (Pen. Code, § 667.6, subds. (c) &
(d).)
Ke contends the trial court erred when it found the victim
was unavailable at trial and admitted her preliminary hearing
testimony. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2018, about a week before her 18th birthday,
C.K. reported to police that her father, Ke, sexually abused her.
At the preliminary hearing in November 2018, C.K.
testified that Ke forced her to have vaginal, oral, and anal sex
with him on numerous occasions, starting when she was 15 years
old. Ke’s attorney cross-examined her at the preliminary
hearing.
On March 18, 2019, the court set a trial date of March 28.
The case was continued several times until trial began on
November 9, 2020.
On March 19, 2019, district attorney investigator Dewayne
Eldridge was assigned to locate C.K. and serve her with a
subpoena for trial. Between March 2019 and October 22, 2020,
he attempted to find her by “constantly” searching law
enforcement and social media databases and by speaking to
persons connected to her.
On approximately March 20, 2019, Eldridge went to C.K.’s
residence in Rosemead but received no response. He checked the
license plate of a car parked in the driveway but it was not linked
to the Ke family. He went to a neighbor’s house to get
information, but nobody was home.
At 6:15 the next morning, Eldridge returned to the
residence listed for C.K. He spoke to two children who said they
lived there since January. He showed them photographs of Ke
and C.K., but the children did not know them. Eldridge left a
business card and later spoke to the children’s mother, who also
did not know C.K. or her family.
Eldridge went to another residence in Rosemead that a
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database linked to the Ke family, but the resident did not know
C.K. or her family. He requested information from Ke’s possible
employer, with negative results.
In April 2019, Eldridge spoke to C.K.’s cousin in Los
Angeles who provided C.K.’s Instagram account but did not have
her address. Eldridge unsuccessfully attempted to contact C.K.
on Instagram. Eldridge contacted the cousin four more times
during the next 13 months but received no additional
information.
Also in April 2019, Eldridge went to a Los Angeles address
identified as the residence of C.K.’s boyfriend, C.C. Eldridge
spoke to C.C.’s grandmother and uncle, who said he had moved to
Las Vegas. Eldridge visited C.C.’s mother. She said C.C. and
C.K. moved to Las Vegas, but she could not provide their address.
She phoned C.C. at Eldridge’s request but there was no answer.
Eldridge left text messages for C.C. In April, C.C. phoned
back and confirmed that he and C.K. were living in Las Vegas.
He did not provide an address. C.K. got on the phone but
declined to provide her address. She said she did not want to
testify again and did not want Ke to go to jail. Eldridge
suggested that C.K. speak to her assigned victim advocate and
texted C.C. the advocate’s number. Eldridge texted C.C. and
asked for C.K.’s mailing address, but he did not respond.
Eldridge unsuccessfully sought information from the U.S.
Postal Service, Las Vegas Metropolitan Police Department,
Nevada Department of Employment, Nevada Department of
Taxation and State Background Division, and California
Employment Development Department.
In May 2019, Eldridge unsuccessfully attempted to contact
an associate of C.K.’s family in Las Vegas by email and phone.
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Clark County district attorney investigator Craig Fabert assisted
Eldridge by going to the individual’s apartment three times, but
there was no answer. At Fabert’s request, Las Vegas police went
to the residence and learned the apartment had been vacant for
two months.
Eldridge spoke to C.C.’s mother again and was told that he
and C.K. left Las Vegas and were no longer a couple. She said
that C.K. was probably living in Rosemead, or with her mother in
San Bernardino.
Eldridge contacted C.K.’s mother on six occasions between
approximately April 2019 and August 2020. She said she last
saw C.K. in February 2019 at a court hearing in Los Angeles.
She said C.K. did not live with her but occasionally stayed with
her for one or two nights. She said C.K. did not want her to know
where she was living. Eldridge ran the license plates for cars
parked in the driveway, but they were not registered to C.K. He
checked hospitals within a five-mile radius of the San Bernardino
and Rosemead addresses. At Eldridge’s request, a San
Bernardino sheriff’s deputy contacted C.K.’s mother, who
provided no additional information.
In November 2019, Eldridge spoke with C.C., who said he
did not know where C.K. was living. Eldridge asked C.C. to
forward a message for C.K. to call Eldridge. C.C. texted that C.K.
was refusing to contact the district attorney’s office.
Eldridge was unable to contact C.K.’s sister by telephone or
email. He spoke with two of C.K.’s brothers on different dates,
who said she was living in Los Angeles with a boyfriend whose
name they did not know. One brother said in October 2020 that
C.K. was no longer on social media and did not have a phone.
Eldridge surveilled the residence of C.C.’s mother in July,
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September, and October 2020, with no results. He talked to her
in October 2020 and received no new information about C.K.’s
location. Efforts to contact C.C. on October 22, 2020, were
unsuccessful.
The trial court found the prosecution exercised reasonable
diligence to locate C.K. and she was unavailable as a witness.
The court ruled her preliminary hearing testimony was
admissible at trial. C.K.’s preliminary hearing testimony was
read to the jury.
Other evidence at trial corroborated C.K.’s preliminary
hearing testimony. A sexual assault nurse practitioner testified
that C.K. reported that Ke forced her to have vaginal, oral, and
anal intercourse with him, with the last incident of anal sex two
days before she reported the crimes and the last incident of oral
and vaginal sex about one week earlier. C.K.’s underwear
contained Ke’s DNA.
Ke told a detective that C.K. performed oral sex on him
more than four times. He said she demanded it and he was
afraid she would hurt herself if he refused. But at trial he
testified that he never had oral, vaginal, or anal sex with C.K.
The jury found Ke guilty of all counts.
DISCUSSION
Ke contends the prosecution did not make diligent efforts to
secure C.K.’s attendance at trial and, as a result, the trial court
erred in allowing admission of her preliminary hearing
testimony. This contention lacks merit.
“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
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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.” (Evid. Code, § 1291, subd. (a).)
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.” (Evid. Code, § 240, subd. (a)(5).) We review
the trial court’s determination of witness unavailability de novo.
(People v. Wilson (2021) 11 Cal.5th 259, 291.)
“The prosecution must demonstrate that ‘the witness is
unavailable and, additionally, that it made a “good-faith effort”
[citation] or, equivalently, exercised reasonable or due diligence
to obtain the witness’s presence at trial.’ [Citation.] . . . We
evaluate whether the prosecution timely searched for the
unavailable witness, whether the prosecution ‘competently
explored’ leads on the witness’s location, and the overall import of
the unavailable witness’s testimony.” (People v. Wilson, supra, 11
Cal.5th at p. 291.)
The prosecution’s efforts to locate C.K. clearly establish due
diligence. Investigator Eldridge repeatedly searched databases,
talked to C.K.’s relatives, boyfriend, and others who might know
her whereabouts, sought information from state agencies in
Nevada and California, conducted surveillance, and received
assistance from other law enforcement agencies. “‘[T]he
prosecution’s efforts [were] timely, reasonably extensive and
carried out over a reasonable period.’” (People v. Wilson, supra,
11 Cal.5th at p. 293.)
Ke contends the prosecution failed to take reasonable
measures to keep C.K. from becoming absent. This case is unlike
People v. Louis (1986) 42 Cal.3d 969, upon which he relies.
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There, despite the fact the witness was “known to be highly
unreliable and likely to disappear,” the prosecution arranged for
him to be released from custody on his own recognizance,
purportedly to visit “an unnamed friend at an undisclosed
address.” (Id. at pp. 974, 978.) Unlike Louis, no evidence here
suggests that the prosecution “hoped that [C.K.] would
disappear” because she “‘would not look as good in person as [she]
does in reading out of the transcript.’” (Id. at p. 993, fn. 7.)
“‘[T]he prosecution is not required “to keep ‘periodic tabs’
on every material witness in a criminal case . . . .”’” (People v.
Friend (2009) 47 Cal.4th 1, 68.) C.K. was cooperative during the
investigation and at the preliminary hearing, and the prosecution
had no “reason to know of a substantial risk that [she] would flee
or otherwise disappear.” (Ibid.) Her history of mental health
issues did not suggest that she would disappear. Only after
Eldridge began searching did it become evident that she did not
want to be found. And her letter asking the court to dismiss the
case was sent four months after Eldridge began searching for her.
Nor was the prosecution required to take additional
measures to locate and serve C.K. The record does not show that
a search of the superior court case registry would have produced
any useful information regarding C.K.’s location. Leaving a
subpoena for C.K. with her mother, as Ke suggests, would not
have constituted valid service. (Pen. Code, §§ 1328, subd. (a),
1328d.) It was not possible to use the interstate witness
procedure (Pen. Code, § 1334 et seq.) because unlike People v.
Cogswell (2010) 48 Cal.4th 467, 472, the prosecution did not have
an address to serve C.K.
Ke relies upon a statement in Ohio v. Roberts (1980) 448
U.S. 56, 74, disapproved on other grounds in Crawford v.
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Washington (2004) 541 U.S. 36, 60: “if there is a possibility,
albeit remote, that affirmative measures might produce the
declarant, the obligation of good faith may demand their
effectuation.” But the required efforts remain “‘a question of
reasonableness.’” (Roberts, at p. 74.) The prosecution’s efforts
here exceeded those found sufficient in Roberts.
“[W]hen a witness disappears before trial, it is always
possible to think of additional steps that the prosecution might
have taken to secure the witness’ presence . . . but the Sixth
Amendment does not require the prosecution to exhaust every
avenue of inquiry, no matter how unpromising.” (Hardy v.
Cross (2011) 565 U.S. 65, 71-72.) The prosecution here exercised
due diligence when it “‘competently explored’ numerous leads,”
despite the failure to pursue other potential “avenues of inquiry.”
(People v. Wilson, supra, 11 Cal.5th at p. 292.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
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Jared D. Moses, Judge
Superior Court County of Los Angeles
______________________________
Spolin Law and Aaron Spolin for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Chung L. Mar, Deputy
Attorneys General, for Plaintiff and Respondent.