People v. Sandoval CA2/8 ( 2016 )

Filed 5/5/16 P. v. Sandoval CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B264631
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA325750)
v.
ARMONDO SANDOVAL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Edmund
Wilcox Clarke, Jr., Judge. Affirmed as modified.
H. Russell Halpern for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, Amanda V. Lopez, Deputy Attorney General, for
Plaintiff and Respondent.
________________________________
A jury convicted Armondo Sandoval of second degree murder (Pen. Code,
§ 187),1 second degree robbery (§ 211), and assault with a firearm (§ 245, subd. (a)(2)).
By the time of trial, the prosecution was unable to locate one of the eyewitnesses who
testified at the preliminary hearing. The trial court determined the prosecution exercised
reasonable diligence in attempting to secure the witness’s attendance at trial. The court
thus allowed the People to read the witness’s preliminary hearing testimony to the jury.
On appeal, Sandoval contends this was error. We direct the trial court to correct an
omission in the abstract of judgment and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the evidence in accordance with the usual rules on appeal.
(People v. Virgil (2011) 51 Cal. 4th 1210, 1263.) Around 3:00 a.m. on July 13, 2007,
R. Bass and B. Dennis were together at Broadway and 42nd Street in Los Angeles.
According to Bass, she had been smoking marijuana that day and was drinking beer.
Dennis had used cocaine and was drinking gin. Kenneth Johnson and Theodore Giddens,
who was also known as “Ishu,” were nearby. Johnson was in his car. Defendant came
into the area and began spray painting a wall. He then approached Bass, Dennis, and
others with them, waved a gun at them, and demanded money. Defendant and Giddens
argued. Defendant followed Giddens down an alley and began shooting. In an interview
with police, Bass identified defendant as the shooter from a photographic lineup. At the
trial in 2014, Bass again identified defendant as the man with the gun.
J. Davie told police he was present during the incident. Davie saw defendant walk
up to Johnson, discuss dope, and yell something about “Four Trey.” Defendant first shot
at Johnson, then he began yelling at Giddens. Giddens ran down an alley as defendant
shot at him. Davie saw defendant walk back down 42nd Street toward Main. Davie
1 All further statutory references are to the Penal Code.
2
identified defendant from a photographic lineup as the man he saw shoot at Johnson and
Giddens.2
Before an ambulance took him to the hospital, Johnson told police he had been
parked in a lot at 42nd Street and Broadway, talking to Giddens. A bald, shirtless,
Hispanic male of small build approached Giddens. The man’s upper body was covered
with tattoos. The man pulled out what appeared to be .45 caliber handgun, pointed it at
Giddens, and said, repeatedly, “You got a beef?” Johnson began driving away. The man
began shooting. Johnson realized he had been shot. He drove himself to the police
station. Johnson later died from a gunshot wound to the chest. He had cocaine in his
system at the time of death.
At around 3:30 a.m. on the morning of the shooting, J. Verduzco was standing in
the area of Vernon and Main in Los Angeles. Defendant, shirtless, approached
Verduzco. He pointed a gun at Verduzco’s head and asked, “Where are you from?”
Verduzco answered he “wasn’t from anywhere,” meaning he did not belong to a gang.
Defendant demanded Verduzco’s wallet and cell phone, then he hit Verduzco on the head
with the gun. Verduzco identified defendant from a photographic lineup as a person who
looked like the man who attacked him. At trial, Verduzco identified defendant as the
man who attacked him.
Around 3:30 a.m. on the morning of the shooting, Los Angeles Police Department
officer Dana Grant was patrolling near 42nd Street and Broadway, searching for a suspect
in response to a call about the incident. On 42nd Street and Main, Grant saw someone
matching the description of the suspect: a Hispanic male with no shirt, a bald head, and
2 At trial, Davie recanted his previous statements to police. He insisted he was not
present when Giddens was shot, he did not see Giddens get shot, and he did not tell
police he witnessed the shooting. He testified he was unable to read or write and the
police investigator simply “wrote stuff” and told him to sign his name. Although Davie
told police he knew defendant as a person named “Nano,” at trial Davie said defendant
did not look like Nano and the Nano he knew was much smaller than defendant.
3
covered in tattoos.3 Defendant was standing near a house. Grant found Verduzco’s
wallet and cell phone on the ground nearby. Later that day, police discovered a gun on
the porch of the house. A criminalist determined casings found in the alley where
Giddens was shot matched the gun and magazine found on the porch.4
A recording of one of defendant’s telephone conversations from jail was played
for the jury. In the call, defendant identified himself as “Nano.” He explained he had the
“murder book” and had seen “the whole file. Everything.” Defendant directed the other
person on the call to “get at” certain individuals, and said others needed to “take off.”
Defendant explained: “I already got the . . . written statement . . . signed and everything
from that fool . . . against me. . . . You let him know to fuck that fool up.” Defendant
then asked if the other man knew Dennis, who he described as “the shortest one. The
smallest one. . . . She hangs out there where the Arrowhead . . . she’s always sitting
there.” Defendant continued: “The tiny one, she is the main witness fool. . . . She says
she saw everything, fool. Yeah, fool. She saw everything. Everything. I got her shit
too. I got her shit on her too. . . . Everything, fool. Everything here, fool. Because
yesterday they gave me the murder – they gave me everything fool.” As the associate
said he would “get” another person, defendant returned to Dennis: “The tiny one is the
one who worries me more, fool. . . .” The associate asked: “Her name is [Dennis],
right?” When defendant confirmed the name, the associate said he would try to find out
where she lived, and: “[W]e will make her disappear, it’s better.” Defendant answered:
“Yeah.”
3 At the 2014 trial, Grant did not recognize the person she detained that night in the
courtroom. However, she recognized a photograph of defendant taken on the night of the
incident as the person she arrested.
4 However, the bullet recovered from Johnson’s body could not have been fired
from the gun found on the porch. Defendant was not tried for the murder of Johnson.
4
At trial, a gang expert opined defendant was a member of the Hang Out Boys
gang, a rival of the Four Trey gang. The Hang Out Boys claimed a territory that included
the area where the shooting occurred, but that territory was entirely surrounded by an
area claimed by the Four Trey gang. Using photographs, the expert testified defendant
had gang-related tattoos on his stomach, back, and left and right biceps. Defendant was
identified in field identification cards as admitting membership in the Hang Out Boys
gang, under the moniker “Nano.” The expert opined, based on a hypothetical, that crimes
committed under the circumstances similar to those established at trial would be gang
crimes that would benefit the gang.
The jury found defendant guilty of second degree murder, second degree robbery,
and assault with a firearm. As to all three counts, the jury found gang enhancements to
be true. (§ 186.22.) As to the murder count, the jury found true the allegations that
defendant personally and intentionally discharged a firearm within the meaning of section
12022.53, subdivisions (c) and (d). As to the robbery count, the jury found true the
allegation that defendant personally used a firearm within the meaning of section
12022.53, subdivision (b). The court sentenced defendant to a total state prison term of
13 years, plus an indeterminate term of 15 years to life, followed by an indeterminate
term of 25 years to life.
DISCUSSION
I. The People Exercised Reasonable Diligence in Attempting to Secure
Dennis’s Attendance at Trial
Defendant’s sole contention on appeal is that the People failed to exercise
reasonable diligence in securing Dennis’s attendance at trial. Defendant argues Dennis
could not properly be found unavailable and, as a result, defendant’s federal and state
confrontation rights were violated when the court admitted Dennis’s preliminary hearing
testimony. We disagree.
5
A. Background
Preliminary Hearing Testimony
Dennis testified she was close friends with Johnson and Giddens. She initially
denied telling the investigating officer anything about the incident. She denied seeing
defendant on the night of the incident and denied seeing him shoot anyone that night.
She then indicated she saw defendant shoot, but she did not know in which direction.
She identified defendant in court as the person she knew by the name “Nano,” and the
person she saw shooting on the night of the incident.5 She later testified she saw
defendant the night of the incident and he was talking to Giddens. She heard Giddens
yell from the alley. She was scared because she heard gunshots. When asked if she
could see where the gunshots were coming from she stopped answering questions, saying
she was being threatened.6 She testified her life had been threatened many times because
of the case, stating someone “pulled a gun” on her the night of the incident and after.
However, she eventually agreed that she wrote a statement accompanying a photographic
lineup that included defendant. The statement read: “Number 5, on page B, is Nano.
He’s the one that shot Ishu . . . at 42nd Street off Broadway.”
Dennis admitted she spoke with a detective about what happened to Giddens, and
she thought a tape recording was made. In the recording, Dennis told police that she and
others, including Bass and Ishu, were sitting around. “Nano” began arguing with “Ishu”
and “Ken,” and Nano had a gun out. Dennis said Nano started shooting at Ishu in the
street at the head of the alley. She explained she could not see Ishu fall: “But I know Ishu
ran through the alley. And he was shooting at Ishu because he the only one in the alley.”
After the recording was played, Dennis testified she recognized her voice on the tape.
5 Dennis testified she had known Nano for a long time.
6 Dennis testified: “I’m being threatened. I see it. I see it. I can’t tell you right
now. I see it though. I can’t do it like that. I can see it. I have feelings.”
6
On cross-examination, Dennis testified she was always at 42nd Street and
Broadway because she is homeless.7 The night of the incident she was drinking half of a
half pint of gin. She had used cocaine that evening. Before defendant arrived, Giddens
was talking to Johnson. Defendant “probably” appeared to be high. At some point
Dennis saw a gun. She refused to answer when asked if she saw defendant shoot anyone.
The court found her in contempt of court. Counsel and the court noted Dennis had
throughout her testimony looked away from the defense side of the table. When her
testimony resumed, Dennis testified Giddens was in the alley, but she denied actually
seeing him get shot. She did not see Giddens fall to the ground, but “the proof [was] in
the alley.” She saw that defendant had a gun in his hand. She saw him take the gun out
of his waistband. She described the gun as big, light-colored, with something on it like a
piece of tape. The person who did the shooting had a lot of tattoos on his face.
Efforts to locate Dennis for trial
On May 28, 2014, nearly six years later, the parties announced ready for trial. On
June 19, 2014, the trial court conducted a due diligence hearing. Los Angeles Police
Department Detective Eric Spear testified he first interviewed Dennis in 2007. She gave
a full statement and made an identification from a photographic lineup, but she was
reluctant to participate in the proceedings. Spear transported her to court in 2008 for the
preliminary hearing. He picked her up from a homeless shelter on Broadway. Dennis
was reluctant, scared, nervous, and upset that Spear “made her” go to court. After Dennis
testified, Spear took her back to the shelter. Over the next six years, Spear periodically
saw Dennis when he was in the area of 42nd Street and Broadway. Dennis “[was] and
[had] been a fixture in that area for many years[.]”
7 She also testified that she had lived in the area of 42nd Street and Broadway since
she was 16 years old. She was 61 years old at the time of the preliminary hearing.
7
Sometime after May 28, 2014, Spear learned the case had been set for trial.
Around June 1, Spear began searching for Dennis. He ran searches in D.M.V. records
but found only an address he already had for a homeless shelter Dennis was known to
frequent. Another detective on the case went to the homeless shelter but Dennis was not
there. She had checked out in September 2013 and had not been seen there since.
Spear placed a “want” in the “NECS database,” so that if law enforcement from another
department, city, or agency, stopped Dennis, they would contact Spear immediately.
No one contacted him. Spear checked for outstanding warrants; Dennis had a felony no
bail warrant for a narcotics violation, but she was not in custody. Spear checked Los
Angeles Police Department records to see if Dennis had any contacts with the
department. He also checked the records for two county hospitals, County USC and
Harbor General. Dennis had not been a patient at either hospital.
Spear checked other local homeless shelters. Dennis had either never checked into
these shelters or was not a current resident. He checked with the coroner’s office four
times. Dennis was not there. The victim advocate office had had no contact with Dennis.
Spear checked 42nd Street and Broadway approximately one dozen times without finding
Dennis. He also had officers on different shifts check the area for her, including on the
weekend. He instructed a police department division that works only with transients to
look for her. The division had prior contact with Dennis but had been unable to locate
her. The senior lead officer in the area had worked in the location for over 20 years and
knew Dennis. He had not seen Dennis in the last two months.
On June 16, Spear spoke with a security guard who worked at 42nd Street and
Broadway. The guard was familiar with Dennis but he had last seen her approximately
one month earlier. The guard worked at varying times of day. Spear gave the guard a
business card and asked him to call Spear’s “personal cell phone,” if the guard saw
Dennis. The guard had not called Spear. Spear also asked Bass about Dennis’s
whereabouts. Bass had not seen Dennis in one or two months. Spear told Bass to contact
him on his personal cell phone if she saw Dennis. He had since asked her approximately
five or six times if she had seen Dennis; she had not. Bass told Spear other transients
8
reported Dennis would sometimes hang out at 47th Street and Broadway or 48th Street
and Broadway. Spear had not been able to locate her at those locations, despite driving
through the area on a daily basis.8
On cross-examination, Spear testified he asked Dennis where she was staying after
the preliminary hearing. She told him she was staying at the shelter where he dropped
her off because she wanted to stop using drugs. Spear did not ask Dennis how long she
planned to stay at the shelter or if she had a future anticipated address. He did not ask if
she had family members with whom she stayed. Spear knew Dennis was reluctant,
nervous and scared to testify, but he did not think she would run and hide.
Although Spear did not ask Dennis for specific information about where she
would be staying, he knew that she had been in the 42nd Street and Broadway area
continuously since 2007, except when she was in custody. Between 2008 and 2014,
Spear saw Dennis three to four times. No other officers made efforts to contact Dennis
prior to June 1, 2014. When Spear periodically saw Dennis between 2008 and 2014, he
did not ask her where she was staying to establish contact for a future subpoena. Spear
explained: “She is homeless. She stays on the street at 42nd and Broadway. That is her
home.” He testified that prior to June 1st, there was no trial date for which to serve a
subpoena, and he had no subpoena to serve.
Spear did not ask anyone he spoke with if they knew whether Dennis had any
family members. He did not circulate pictures of her to anyone; the people he spoke with
already knew her. He did not run any kind of search that would track Dennis down under
an alias. Spear did not ask Bass if, aside from seeing Dennis, Bass had spoken to her.
The trial court ruled the People’s efforts were reasonable and Dennis would
therefore be deemed unavailable.
8 Spear testified that on June 16, a local transient asked him when the trial would be.
Bass was similarly aware the trial was starting. Spear had also seen fresh Hang Out Boys
gang tagging in the area of 42nd Street and Broadway in recent weeks.
9
B. Discussion
The federal and state Constitutions guarantee defendants the right to confront
prosecution witnesses at trial. However, there is an exception when a witness is
unavailable and, at a previous court proceeding against the same defendant, the witness
gave testimony that was subject to cross-examination. Under federal law, this testimony
is admissible if the prosecution made a good faith effort to obtain the witness’s presence
at trial. Under California law, a witness is unavailable if the prosecution exercised
reasonable, or “due diligence,” but is unable to procure the witness’s attendance by use of
court process. (People v. Fuiava (2012) 53 Cal. 4th 622, 674-675 (Fuiava); People v.
Bunyard (2009) 45 Cal. 4th 836, 848-849 (Bunyard); Evid. Code, §§ 1291, subd. (a) &
240, subd. (a)(5).)
As our high court explained in Fuiava, “ ‘the term “due diligence” is “incapable of
a mechanical definition,” but it “connotes persevering application, untiring efforts in
good earnest, efforts of a substantial character.” [Citations.] Relevant considerations
include “ ‘whether the search was timely begun’ ” [citation], the importance of the
witness’s testimony [citation], and whether leads were competently explored [citation].’
[Citation.]” (Fuiava, supra, 53 Cal.4th at p. 675.)
“[I]n those cases in which courts have not found adequate diligence, the efforts of
the prosecutor or defense counsel have been perfunctory or obviously negligent. . . . On
the other hand, diligence has been found when the prosecution’s efforts are timely,
reasonably extensive and carried out over a reasonable period.” (Bunyard, supra, 45
Cal.4th at pp. 855-856.) “ ‘Where the record reveals . . . that sustained and substantial
good faith efforts were undertaken, the defendant’s ability to suggest additional steps
(usually. . .with the benefit of hindsight) does not automatically render the prosecution’s
efforts “unreasonable.” [Citations.] The law requires only reasonable efforts, not
prescient perfection.’ [Citation.] ‘That additional efforts might have been made or other
lines of inquiry pursued does not affect [a] conclusion [there was due diligence] . . . . It is
enough that the People used reasonable efforts to locate the witness.’ [Citation.] A court
cannot ‘properly impose upon the People an obligation to keep “periodic tabs” on every
10
material witness in a criminal case, for the administrative burdens of doing so would be
prohibitive. Moreover, it is unclear what effective and reasonable controls the People
could impose upon a witness who plans to leave the state, or simply “disappear,” long
before a trial date is set.’ [Citation.]” (People v. Diaz (2002) 95 Cal. App. 4th 695, 706.)
“ ‘When, as here, the facts are undisputed, a reviewing court decides the question
of due diligence independently, not deferentially. [Citation.]’ [Citation.]” (Fuiava,
supra, 53 Cal.4th at p. 675.)
We conclude the People exercised due diligence in attempting to secure Dennis’s
attendance at trial. Although Dennis was a reluctant witness at the preliminary hearing,
she did appear and testify. In the six intervening years before the trial she remained in a
single geographic area. At the time of the preliminary hearing, and for years after,
Dennis was homeless but maintained a physical presence around 42nd Street and
Broadway. Beginning the search for Dennis over two weeks before the start of trial was
not unreasonable. (See Fuiava, supra, 53 Cal.4th at pp. 675-676 [detective began
looking for witness two weeks before date set for trial; court found this to be a reasonable
period].)
In addition, Dennis was one of three eyewitnesses to the shooting of Giddens.
Her observations were similar to those of Bass and Davie, whose testimony and
statements were presented at trial. The prosecution also had strong evidence in the form
of Johnson’s statements to police before he died describing the shooter, the ballistics and
robbery evidence linking defendant to the crime, and defendant’s own jailhouse
telephone conversations, in which he discussed the need to find or cause the
disappearance of witnesses in the case. We cannot say Dennis’s testimony was of critical
importance, such that failing to begin searching for her a little over two weeks before the
trial was unreasonable. (Fuiava, supra, 53 Cal.4th at p. 676.)
Further, efforts to locate Dennis was not cursory or obviously negligent. Spear
searched for Dennis at 42nd Street and Broadway and in neighboring areas, and he
instructed others to look for her. He searched local homeless shelters, with no results.
Spear also searched D.M.V. records, Los Angeles Police Department records, and the
11
coroner’s office. These searches produced no new address for Dennis or clues as to her
whereabouts. Spear located a security guard who had seen Dennis one to two months
earlier, but not more recently. Spear’s request that the security guard contact him upon
seeing Dennis was not fruitful. Spear contacted Bass on multiple occasions; she claimed
to have no knowledge of Dennis’s whereabouts. Spear further enlisted other officers in
the search for Dennis, including those familiar with transients and some actually
acquainted with Dennis, to no avail. Under the circumstances, these efforts demonstrated
reasonable diligence. (See People v. Wise (1994) 25 Cal. App. 4th 339, 344 [People
attempted service at three addresses; investigator contacted post office, local jail, and
coroner’s office, and could not locate address for witness].)
Indeed, this case is similar to many others in which courts have concluded the
People acted with reasonable diligence. For example, in Fuiava, the detective began
looking for the witness two weeks before the start of trial. He checked her two last
known addresses. A neighbor said he had not seen the witness for some time. The
detective checked D.M.V. records but found only one outdated address. He went to the
address but did not find the witness. He checked hospital and jail records in Los Angeles
County on a “pretty regular basis.” (Fuiava, supra, 53 Cal.4th at p. 676.) He tried to
locate the witness’s brother. (Id. at p. 677.) He gave patrol deputies in the relevant
neighborhood a photograph and physical description of the witness, with instructions to
contact him if she was spotted, and take her into custody if necessary. The People had no
reason to believe the witness would not appear. The Fuiava court rejected the argument
that the witness’s admission at the preliminary hearing that she was fearful of testifying
put the prosecution on notice that she might flee or hide instead of testifying. (Id. at
p. 676.) The court found the People exercised reasonable diligence under the
circumstances in attempting to locate the witness. (Id. at p. 677.)
Likewise, in People v. Wilson (2005) 36 Cal. 4th 309 (Wilson), the high court
concluded the prosecution exercised reasonable diligence based on a detective’s efforts
over two days. In those two days, the detective visited the witness’s last known address,
12
attempted to locate his known associates, and checked police, county, and state records
with 15 names the witness had used. (Id. at p. 341.)
The prosecution’s efforts in this case were of similar quantity and quality here as
those found reasonable in Fuiava and Wilson, among other cases. Spear began searching
for Dennis a reasonable period of time before the trial was set to start, he checked
multiple sources for information on Dennis, he repeatedly visited the only place she was
known to typically frequent, and he located Dennis’s known associate, Bass. Spear had
periodically seen Dennis in the intervening years in the same location, suggesting there
was no reason to believe she would suddenly relocate. Under the circumstances of this
case, the prosecution’s efforts were reasonably diligent.
People v. Cromer (2001) 24 Cal. 4th 889 (Cromer), upon which defendant relies,
does not mandate a contrary result. In Cromer, the witness testified at a preliminary
hearing under subpoena, but two weeks later, law enforcement reported she was no
longer at the same address. Despite this information, the prosecution made no effort to
serve subpoenas to secure the witness’s attendance until six months later, only weeks
before the trial was set to begin. Investigators went to the witness’s house, but she was
not there. Eventually, a man at the witness’s former home told the investigators the
witness was living with her mother in San Bernardino. Two days later they went to the
mother’s home, and were told the mother would return the following day. An
investigator left a subpoena for the witness, but neither returned to speak to the witness’s
mother, nor attempted to find other ways to contact the mother.
Our high court concluded this was not reasonably diligent, explaining: “Although
the prosecution lost contact with [the witness] after the preliminary hearing, and within
two weeks had received a report of her disappearance, and although trial was originally
scheduled for September 1997, the prosecution made no serious effort to locate her until
December 1997. After the case was called for trial on January 20, 1998, the prosecution
obtained promising information that [the witness] was living with her mother in San
Bernardino, but prosecution investigators waited two days to check out this information.
With jury selection under way, an investigator went to [the witness’s] mother’s residence,
13
where he received information that the mother would return the next day, yet the
investigator never bothered to return to speak to [the witness’s] mother, the person most
likely to know where [the witness] then was. Thus, serious efforts to locate [the witness]
were unreasonably delayed, and investigation of promising information was unreasonably
curtailed.” (Cromer, supra, 24 Cal.4th at p. 904.)
In this case, there is no evidence the prosecution knew or had reason to believe
Dennis had disappeared, or would disappear, before trial. (See People v. Martinez (2007)
154 Cal. App. 4th 314, 328 [distinguishing Cromer where there was no report shortly after
preliminary hearing that witness had disappeared].) For years after the preliminary
hearing, Dennis stayed in the same general location. Moreover, “[t]he prosecution is not
required ‘to keep “periodic tabs” on every material witness in a criminal case . . . .’
[Citation.] Also, the prosecution is not required, absent knowledge of a ‘substantial risk
that [an] important witness would flee,’ to ‘take adequate preventative measures’ to stop
the witness from disappearing. [Citations.]” (Wilson, supra, 36 Cal.4th at p. 342.)
While the prosecution in Cromer had promising leads that it simply failed to
pursue, here Spear used several different, logical sources of information to try to locate
Dennis. He located and spoke with Bass. He spoke with others who knew Dennis and
had seen her relatively recently. He checked local homeless shelters and relevant
records. He instructed others, including law enforcement officers, to look for Dennis and
to contact him if they saw her. Spear never discovered any promising information,
despite reasonable and competent efforts. Defendant faults the People for not getting
more contact information from Dennis before she disappeared. Yet, while Dennis was
homeless, there was evidence she stayed in a particular location near the scene of the
crime, and continued to be seen there for years after the preliminary hearing, even one or
two months before the People attempted to locate her. This indicates the People did not
have reason to know of a substantial risk Dennis would flee or disappear. (People v.
Friend (2009) 47 Cal. 4th 1, 68-69.) The lack of prosecutorial diligence described in
Cromer is not present here. The trial court did not err in admitting Dennis’s preliminary
hearing testimony at trial.
14
II. Any Error Was Harmless Beyond a Reasonable Doubt
Even if the trial court erred in finding Dennis unavailable due to the People’s
failure to exercise reasonable diligence in attempting to locate her, we would conclude
the error was harmless beyond a reasonable doubt. (People v. Louis (1986) 42 Cal. 3d
969, 993-994.)
Dennis was fully cross-examined at the preliminary hearing. The cross-
examination revealed infirmities in her testimony, including that on the night of the
incident she was drinking alcohol and had used cocaine. The record also documented
Dennis’s physical actions and demeanor while testifying. More importantly, Dennis’s
preliminary hearing testimony was the same in most respects as that of Bass, who
testified at trial, and as Davie’s statements to police, which were admitted as
impeachment evidence once he recanted at trial. Like Dennis, Davie was acquainted with
defendant before the incident. On appeal, defendant contends the weaknesses in the Bass
and Davie testimony at trial indicate defendant might not have been convicted had
Dennis’s preliminary hearing testimony not been admitted. Yet, Dennis’s prior testimony
was as flawed as the trial testimony of Bass and Davie. Dennis’s description of the gun
defendant used was inconsistent with the gun police recovered. She admitted being under
the influence of multiple substances at the time of the incident and her testimony was no
more coherent than that of Bass. She initially denied seeing defendant on the night of the
incident and she also denied seeing him shoot a gun.
Further, aside from the eyewitness testimony, there was other significant evidence
of defendant’s guilt, such as Verduzco’s identification of defendant; the evidence
connecting the weapon found near defendant with the bullet casings found in the alley
where Giddens was shot; Johnson’s description of a suspect matching defendant’s
appearance that night; and defendant’s consciousness of guilt as illustrated by his
jailhouse telephone calls in which he directed others to find, “get at” or “fuck up” the
author of a written statement against him, and his agreement that it would be best to make
Dennis disappear.
15
We therefore conclude any error in admitting Dennis’s preliminary hearing
testimony was harmless beyond a reasonable doubt.
III. Abstract of Judgment
Our review of the record indicates the abstract of judgment does not accurately
reflect the sentence the trial court imposed. The abstract reflects that defendant was
sentenced to only an indeterminate term of 25 years to life, rather than an indeterminate
term of 15 years to life, followed by an indeterminate term of 25 years to life, in addition
to the determinate term of 13 years. The abstract must be corrected to accurately reflect
the sentence pronounced in court. (People v. Scott (2012) 203 Cal. App. 4th 1303, 1324.)
DISPOSITION
The trial court is ordered to correct the abstract of judgment by modifying it to
reflect an indeterminate term of 15 years to life, followed by an indeterminate term of 25
years to life, in addition to the determinate term of 13 years. The trial court is further
ordered to forward a copy of the corrected abstract of judgment to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
BIGELOW, P.J.
We concur:
RUBIN, J.
GRIMES, J.
16