People v. Jordan CA2/8 ( 2013 )

Filed 12/30/13 P. v. Jordan 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B243324
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA 396905)
v.
CHRISTINA ANN JORDAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J.
Perry, Judge. Reversed.
Adrian K. Panton, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Yun K. Lee and Tasha G.
Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
******
In this appeal, appellant Christina Ann Jordan demonstrates that her criminal
conviction for assault with a deadly weapon must be reversed because the trial court
prejudicially erred in admitting the victim’s preliminary hearing testimony. The victim
was not “unavailable” such that his preliminary hearing testimony would be admissible
because the prosecution failed to exercise reasonable diligence to procure his attendance
by the court’s process. (Evid. Code, § 240, subd. (a)(5).)
FACTS AND PROCEDURE
1. Incident
On March 28, 2012, Jerry Bridges had a puncture wound to his torso, which
appeared to be a stab wound. He was hospitalized for his injuries the following day.
Bridges told law enforcement his name was “James Stone,” but he identified himself to
hospital staff as Jerry Bridges. A police officer initially investigating the case discovered
Bridges had an outstanding felony no-bail warrant. Police conducted interviews with
other people, including Bridges’s roommate, Ronnie Deloach, and a woman present at
the time of the incident. However, police were unable to locate any other witnesses to the
incident.
2. Information
In a one-count information, Jordan was charged with assault with a deadly
weapon. It was alleged that Jordan personally inflicted great bodily injury under
circumstances involving domestic violence and that she suffered numerous prior felony
convictions.
3. Preliminary Hearing
Bridges’s preliminary hearing testimony did not inculpate Jordan. To the
contrary, Bridges testified at the preliminary hearing that he may have been cut by a
mirror and that he consumed liquor, marijuana, and cocaine on the day of the incident.
Bridges was in custody at the time of the preliminary hearing.
4. Trial
The prosecution was unable to locate Bridges before trial, and his preliminary
hearing testimony was read to jurors. The parties stipulated that Bridges suffered seven
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felony convictions between 1990 and 2007, and two misdemeanor convictions in 1989
and 1990. The felony convictions were for sale or transportation of a controlled
substance, burglary, first and second degree robbery, grand theft, and possession or
manufacture of combustible or explosive material (fire bomb). The misdemeanor
convictions were for forgery and petty theft.
An officer and a detective were called to testify at trial concerning statements
Bridges made prior to his preliminary hearing testimony. The prior statements were
inconsistent with his preliminary hearing testimony. Officer Jay Balgemino testified that
he spoke to Bridges the day after Bridges had been injured. Bridges said his ex-girlfriend
Jordan stabbed him. Bridges told Balgemino he had been using a computer with another
girlfriend when Jordan entered the apartment. Jordan started a verbal argument, which
Bridges and Jordan continued outside. Bridges threatened to call the police if Jordan
stayed. Jordan said, “Go ahead, mother fucker, call the police. I’ll finish the mother
fuckin’ job right now.” Bridges said he ran inside the apartment and Jordan ran to an
unknown location.
Detective Rodrigo Rodriguez testified he spoke to Bridges at the hospital after
Bridges had been treated. Bridges told Rodriguez that his ex-girlfriend Jordan “pulled a
switchblade knife, said, I don’t give a fuck. You think I’m playing. You think I’m a
punk, advanced on him and stabbed him[.]” Bridges said that Jordan “need[ed] to go to
jail for what she did.”
A May 2012 phone call from Jordan to the apartment where the incident took
place was played for the jury. “Ronnie” answered the phone. Jordan told Ronnie she had
the police report. She read or paraphrased the contents of the report, including portions
in which Bridges told police Jordan stabbed him. Jordan then summarized: “So, one, he-
he gave a full fucking testimony. Two, he’s on the run. Three, his injury wouldn’t have
been as serious if he would have went right then and there, do you understand?” Jordan
said she was wondering if Bridges was “coming to court on me, or what?”
Ronnie suggested that Bridges was delirious when he spoke to police and could
have accused anyone. Jordan responded: “But what I am saying is supposably [sic] there
3
was another girl involved. Why would you said I stabbed you why couldn’t you say that
my girlfriend got mad and stabbed me, you know what I’m saying? He needs to come to
court and change his story. He needs to come to court and be like I don’t see her or
something because if they know I’m on the phone with you right now this is, this is a
violation of, um, this court order. [¶] . . . [¶] . . . He needs to come Monday, something
and be like I don’t see her, you know? [¶] . . . [¶] . . . Or be like hey, who is that up
there, that’s not the person that stabbed me. Or something. He already gave them my
name dude, that’s the fucked up part about it, you know what I mean?”
During the call, Bridges entered the apartment. Jordan told Ronnie that Bridges
was “going to have to clear his name somehow with me, do you understand what I am
saying? Cause it is not like I just did that shit.” After debating whether to speak with
Bridges, Jordan asked Ronnie to put him on the phone. Ronnie asked Bridges if he was
going to court to testify. Bridges said he was not pressing charges so he did not
understand why he would have to go to court, and he would not go to court. Jordan told
Bridges he had a felony no-bail warrant and the police would be looking for him. She
continued: “Do you want to hear your statement? . . . I know it’s you because of the shit
that I said.” Jordan told Bridges she had “been waiting for [him] to do right by [her]”
since 2003. She said Bridges would have to go to court and the police were going to
come and get him. Bridges claimed he did not give a statement to the police. Jordan
asked: “So then why can’t you come to court and say that?” Bridges responded: “Well,
if that’s what I gotta do, I will. They going to have to show me my . . . I ain’t gave no
fucking -- when they came to the hospital I told them that.” Jordan told Bridges she was
going to court on May 15. Bridges told Jordan not to worry. He again suggested he did
not give a statement to police. He explained: “They came over here one day, man, about
four of them, bamming on everybody’s door, taking motherfucker’s statements for a long
time. So what the fuck, hell, everybody going to say the same god[am]n thing.” Jordan
reminded Bridges she was looking at the “paperwork” that identified Bridges as giving a
statement. But Bridges continued: “Everybody -- when I went to the hospital, everybody
4
-- what happened to him? Oh, his girlfriend stabbed him . . . that’s the story that went
around the whole fucking neighborhood. So what the fuck you think they gonna say?”
Jordan asked: “Then why couldn’t it be the -- why couldn’t it be the girlfriend you
told to go in the room? Why’d it have to be me? [¶] . . . [¶] . . . Yeah, that’s what you
told them. That me and my girlfriend were sitting at the computer when Jordan came by
and she got mad because she saw me with another girl.” Bridges responded: “Listen,
you know, that only made crazy man sense.” He added: “When I got stabbed everybody
in this building know what the fuck happened. Everybody told the detective the same
motherfucking thing. When they came to the hospital they said that. We thought it was
your girlfriend, why’d you give us, uh, a fake name. They told me all that shit because I
didn’t even give them my fucking name when I went there.” Jordan answered: “Well
they got my name. And my nickname. Who knows my full name there? Nobody but
you.” She asked again if Bridges would come to court. He insisted he would.
5. Judgment
The jury found Jordan guilty of assault with a deadly weapon (Pen. Code, § 245,
subd. (a)(1)). The jury also found true the allegation that Jordan inflicted great bodily
injury on Bridges under circumstances involving domestic violence (§ 12022.7, subd.
(e)). The trial court found three alleged prior convictions true. The court sentenced
Jordan to a total prison term of 12 years.
DISCUSSION
The sole issue on appeal is whether the court erred in admitting Bridges’s
preliminary hearing testimony and thereby violated Jordan’s confrontation rights.
Additional background is necessary to evaluate this contention.
1. Background
On July 17, 2012, both sides announced ready for trial. Trial was set for August 6.
On August 3, the People filed a motion to trail the jury trial because they were unable to
reach or subpoena Bridges. On August 7, the court held a hearing regarding the People’s
diligence in attempting to secure Bridges’s attendance at trial.
5
Los Angeles County District Attorney’s Office investigator Marlon Morgan
testified as follows. Morgan received a subpoena for Bridges on July 23. That morning
he began attempting to reach Bridges. Morgan checked Department of Motor Vehicle
records and the Justice Data Interface Controller (JDIC) System, utility records,
telephone records, and “deceased records.” Morgan next went to the address for Bridges
identified on the police report. Bridges was not there. He went to the apartment at 6:30
and 8:00 a.m. on July 23, and again on August 1 at 8:15 a.m. and 12:40 p.m. Morgan
was unable to speak with anyone at the address about Bridges.
Morgan spoke with the on-site manager of the apartment complex. She did not
know Jerry Bridges. Morgan did not have a photograph of Bridges. He provided only a
general description of Bridges as a Black male, and provided Bridges’s age. Morgan
knocked on the doors of two or three neighbors, but did not speak to any of them.
Morgan spoke to Delouch who had no contact information for Bridges. Morgan also
spoke with the investigating officer on the case, who had no knowledge of Bridges’s
whereabouts. Morgan was not able to find any other location information for Bridges.
On cross-examination, Morgan indicated he was not aware that Bridges was on
felony probation or that he had an upcoming court date on two “Proposition 36” cases.
Morgan did not contact any Proposition 36 programs in Los Angeles County to determine
if Bridges had checked in. Morgan said he was unaware that in dockets from Bridges’s
past criminal cases, his address was frequently listed as “transient.” Morgan did not
check any homeless shelters or the Department of Mental Health for information about
Bridges. Morgan was also unaware that in a prior case, Bridges had provided an alias of
Julio Demohammad Bridges. Morgan did not enter any of Bridges’s aliases in the
databases he searched for information, or otherwise use the “Julio Demohammad
Bridges” alias to try to find him.
Jordan’s counsel, however, had located two felony probation case numbers for
Bridges in the trial court information system (TCIS). Morgan did not check the TCIS.
6
The court ruled that although it was a close case, it would find the People’s efforts
were reasonable. The People were allowed to read Bridges’s preliminary hearing
testimony to the jury.
2. Analysis
“The constitutional right implicated here is the right of an accused in a criminal
prosecution ‘to be confronted with the witnesses against him.’ [Citations.] This
confrontation right 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 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.’”’ [Citation.]” (People v. Cromer (2001) 24 Cal. 4th 889, 896-897
(Cromer).)
“Notwithstanding the importance of the confrontation right, it is not absolute.
[Citation.] Traditionally, there has been ‘an exception to the confrontation requirement
where a witness is unavailable and has given testimony at previous judicial proceedings
against the same defendant [and] which was subject to cross-examination . . . .’
[Citation.] Before the prosecution can introduce testimony from a prior judicial
proceeding, however, it ‘must . . . demonstrate the unavailability of’ the witness.
[Citation.] Generally, a witness is not unavailable for purposes of the right of
confrontation ‘unless the prosecutorial authorities have made a good-faith effort to obtain
[the witness’s] presence at trial.’ [Citations.]” (Cromer, supra, 24 Cal.4th at p. 897,
italics added.) Under California law, a witness is unavailable if the witness is “[a]bsent
from the hearing and the proponent of his or her statement has exercised reasonable
diligence but has been unable to procure his or her attendance by the court’s process.”
(Evid. Code, § 240, subd. (a)(5), italics added.) In this context, reasonable diligence, also
7
referred to as due diligence, “‘“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 completely explored [citation].’” (People v.
Fuiava (2012) 53 Cal. 4th 622, 675 (Fuiava).)
3. The Trial Court Erred in Finding Bridges Unavailable and Admitting his
Preliminary Hearing Testimony
“‘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.)
Here, each factor shows a lack of due diligence. First, the search for Bridges was
not timely commenced. It cannot reasonably be disputed that Bridges was a reluctant
witness. Even the prosecutor argued: “So Jerry didn’t call the police, Jerry hid from the
paramedics. Why would Jerry give them a fake name? Because Jerry’s got warrants.
Jerry doesn’t like coming to court. Jerry doesn’t want to be a snitch. Jerry exists outside
the law . . . .” At the sentencing hearing, the prosecutor further argued: “And we know
the reason he [Bridges] didn’t go is that he had warrants and didn’t want to be in the
system, and Ms. Jordan chose her victim knowing full well his history and how he would
react. She got the benefit of having someone who would be willing to avoid the court
process or lie in court, but she also picked someone who wouldn’t go to the hospital right
away.” After the incident Bridges told officers his name was James Stone. At the time
Bridges was in the emergency room being treated for his injury, officers learned that he
had an outstanding felony no-bail warrant. Although Bridges appeared at the preliminary
hearing, he was in custody and recanted all of his prior statements. Under such
circumstances, the prosecution should have begun searching for him more than two
weeks before trial. (See Cromer, supra, 24 Cal.4th at p. 902 [finding absence of
reasonable diligence when prosecution began searching about a month before trial for
witness who had disappeared after the preliminary hearing].)
8
Second, Bridges was the victim and the most important witness. No eyewitness
was found or testified. Bridges therefore was not only the victim but also the only
percipient witness. Bridges’s testimony was critical to evaluate his credibility, which was
undermined not only by his inconsistent statements in this case but also by his long
criminal history. Bridges had been convicted of sale or transportation of a controlled
substance, multiple burglaries, first and second degree robbery, grand theft, possession or
manufacture of combustible or explosive material, forgery, and petty theft. The
cornerstone of Jordan’s defense was that jurors should question Bridges’s credibility, and
Bridges’s testimony was essential for jurors to evaluate his credibility.
Third, Morgan failed to discover and explore leads. The unexplored leads are
numerous. Morgan did not know Bridges was on felony probation. Morgan did not
know Bridges had court dates on two cases. Morgan did not check Proposition 36
referrals. When Morgan spoke to the apartment manager, he did not have a picture of
Bridges and only described him as a Black male of a certain age. Morgan did not talk to
anyone at Bridges’s apartment complex. Morgan did not know Bridges was transient and
did not check homeless shelters. Morgan did not know Bridges’s alias and did not check
his alias. Morgan did not contact persons in the immediate area or the person across the
street who called 911. Morgan’s efforts cannot be characterized as “‘“untiring,”’” or of
“‘“substantial character.”’”1 (Fuiava, supra, 53 Cal.4th at p. 675.)
“What constitutes due diligence to secure the presence of a witness depends upon
the facts of the individual case.” (People v. Linder (1971) 5 Cal. 3d 342, 346.) Even if
1 The dissent faults this opinion for considering steps Morgan could have taken in
evaluating the reasonableness of the prosecution’s efforts to locate Bridges. (See dis.
opn., post, at p. 1.) We are not unaware that our Supreme court has held that showing
“‘additional efforts might have been made or other lines of inquiry pursued does not’”
show the prosecution failed to exercise reasonable diligence. (Fuiava, supra, 53 Cal.4th
at p. 677; see People . Cummings (1993) 4 Cal. 4th 1233, 1298.) This holding means that
simply identifying additional steps that could have been undertaken is insufficient to
demonstrate a lack of due diligence. However, our high court has not held that it is
improper to consider other efforts that could have been undertaken when evaluating the
reasonableness of a search.
9
the same efforts may be reasonable in other circumstances, here there was little
connection between Morgan’s efforts and his ability to actually locate Bridges. For
example, checking phone records and utility records is of marginal benefit when the
witness is transient. Although the police report revealed that Bridges used an alias,
Morgan neither investigated nor checked Bridges’s aliases. Nor did he check any
Proposition 36 programs or learn about Bridges’s felony probation or court hearings,
which may have been good cause to continue the trial in this case to secure Bridges’s
presence. Thus, while Morgan’s efforts may be sufficient in a hypothetical case, they
were not reasonable in this particular case to secure the presence of Bridges, the victim
and most important witness at trial.
4. The Error Was Not Harmless Beyond a Reasonable Doubt
The erroneous admission of Bridges’s preliminary hearing transcript was not
harmless beyond a reasonable doubt. (People v. Rutterschmidt (2012) 55 Cal. 4th 650,
661 [“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.”].) “‘“An error in admitting plainly
relevant evidence which possibly influenced the jury adversely to a litigant cannot . . . be
conceived of as harmless.”’” (People v. Louis (1986) 42 Cal. 3d 969, 993-994.)
The improperly admitted testimony prejudiced Jordan. Officer Balgemino and
Detective Rodriguez testified as to Bridges’s prior inconsistent statements. Their hearsay
testimony was admissible only because the trial court admitted Bridges’s preliminary
hearing testimony. Balgemino and Rodriguez testified forcefully that Jordan stabbed
Bridges and that she was willing to “finish” the “job.” This testimony indicated that
Jordan was an aggressor, pulling out a switchblade and advancing toward Bridges. It
suggested that Bridges believed Jordan committed a crime and should be incarcerated. It
gave meaning to Jordan’s otherwise ambiguous jailhouse phone call. The admission of
Bridges’s prior inconsistent statements prejudiced Jordan because they were the strongest
evidence of Jordan’s guilt. A reasonable juror could rely on the strongest evidence to
convict Jordan.
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Even though Jordan’s phone call was admissible regardless of Bridges’s
testimony, the officer’s testimony and the detective’s testimony gave context and
coloring to Bridges’s phone call. Without the inadmissible evidence, jurors may have
interpreted Jordan’s phone call to Bridges differently, especially given that Ronnie
described Bridges as delirious and Jordan denied the accusations in the police report
stating, “[c]ause it is not like I just did that shit.” Because the inadmissible testimony
essentially clarified and corroborated Jordan’s phone call, admitting it prejudiced her.
The prosecutor used the improperly admitted testimony to great effect in his
closing argument. The prosecutor argued that Bridges’s statements described in the
police report should be believed because he “told two separate officers the same story.”
Thus, the prosecutor was able to bolster Bridges’s credibility -- the only disputed issue --
based solely on inadmissible testimony. Absent the prior inconsistent statements to two
officers -- which were admissible only because Bridges’s preliminary hearing testimony
was admitted -- jurors may have reached a verdict more favorable to Jordan. The error in
admitting Bridges’s preliminary hearing testimony was not harmless beyond a reasonable
doubt, and the judgment therefore must be reversed.
DISPOSITION
The judgment is reversed.
FLIER, J.
I CONCUR:
RUBIN, J.
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BIGELOW, P. J., Dissenting:
I respectfully dissent.
The majority concludes the prosecution did not exercise reasonable diligence in
attempting to locate Bridges, based on a failure to begin the search earlier, and the
prosecution investigator’s failure to discover and explore leads. However, the majority’s
analysis focuses only on what additional steps the prosecution could have taken. In my
view, this is inconsistent with established principles regarding due diligence. I would
find the People’s actual efforts demonstrated reasonable diligence.
Our high court has repeatedly explained the due diligence standard is satisfied if
the People used “reasonable efforts to locate the witness. “That additional efforts might
have been made or other lines of inquiry pursued does not affect this conclusion.
[Citation.]” (People v. Cummings (1993) 4 Cal. 4th 1233, 1298; see also People v. Fuiava
(2012) 53 Cal. 4th 622, 677; People v. Valencia (2008) 43 Cal. 4th 268, 293.) “ ‘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.]” (People v. Diaz (2002) 95 Cal. App. 4th 695, 706.)
Here, the prosecution investigator’s process was reasonably thorough and
demonstrated “substantial good faith efforts.” He searched multiple databases using
Bridges’s name, and his date of birth. These databases included parole and probation
records. The investigator searched DMV, utility, telephone, and death records. He went
to the only address he could find for Bridges—where the incident took place—on two
different dates, twice each day. He knocked on the doors of neighbors, but no one
answered. Thus it is not simply that he “did not contact persons in the immediate area”
of the incident, or “did not talk to anyone at Bridges’s apartment complex.” (Maj. Opn.
p. 9.) Rather, he tried to talk to neighbors on both days he went to the scene. There was
no answer when he knocked on the neighbors’ doors. And the investigator did, in fact,
speak with someone at the apartment complex: the apartment manager. She simply had
little useful information to share. The investigator used what little information the
apartment manager provided to track down Deloach. Deloach said he had no knowledge
of Bridges’s whereabouts.
The prosecution’s efforts in this case were not “perfunctory or obviously
negligent.” (People v. Bunyard (2009) 45 Cal. 4th 836, 855.) The search did not begin
belatedly or at the last minute. (People v. Sanders (1995) 11 Cal. 4th 475, 524-525
[defense did not exercise reasonable diligence where it waited until trial began to attempt
to subpoena witness]; People v. Avila (2005) 131 Cal. App. 4th 163, 169 [no reasonable
diligence where search for witness began on first day of trial].) The majority concludes
beginning the search for Bridges two weeks before trial was unreasonably late because
Bridges was a “reluctant” witness. The record indicates Bridges recanted his statements
to police during his preliminary hearing testimony. He clearly did not want to
incriminate Jordan. But the record did not establish the prosecution should have known
Bridges was likely to disappear before trial to avoid testifying. As the prosecutor
explained during the due diligence hearing, Bridges was in custody for reasons unrelated
to the Jordan case when he testified at the preliminary hearing. He gave two statements
to police. While he initially used an alias with police, he also had outstanding warrants at
that time, which could have explained his attempt to hide his identity. Those warrants
were cleared at the time of the preliminary hearing. And while Bridges changed his story
at the preliminary hearing, there is no indication he avoided testifying.1
1 In the recorded telephone conversation between Bridges and Jordan, Bridges was
initially unwilling to testify, but, at Jordan’s urging, he agreed he would go to court.
Consistent with his assurances to Jordan, Bridges testified at the preliminary hearing, and
provided exculpatory testimony. In any event, the prosecution apparently did not receive
Bridges’s recorded telephone conversation with Jordan until shortly before the trial
began, and after the People had begun looking for him. Decisions about when to begin
looking for Bridges could not have been informed by the content of the call.
2
There is no evidence in the record indicating the prosecution should have
suspected Bridges was likely to be difficult to find, such that beginning the search two
weeks in advance of trial was unreasonable. (People v. Wilson (2005) 36 Cal. 4th 309,
342 (Wilson) [rejecting due diligence arguments where, except for describing witness as
“unreliable and of suspect credibility,” defense pointed to no evidence that the
prosecution knew of a substantial risk the witness would disappear].) The prosecutor’s
statements in closing argument, or at the sentencing hearing, characterizing Bridges as a
witness willing to avoid court process or one who “doesn’t want to come to court,” are
not evidence of what the prosecution knew or should have known about Bridges before
trial.
The majority also faults the prosecution for not discovering and exploring leads.
Yet, as courts have recognized, hindsight usually offers the defense the ability to suggest
additional steps the prosecution could have taken to locate a witness. That the
prosecution could have done more, or could have pursued other sources of information,
does not affect the conclusion that what was done was reasonably diligent. Bridges’s
felony probation did not surface during the prosecution investigator’s search.
But nothing in the record suggests the prosecution’s failure to discover the information
was due to a lack of diligence. The investigator searched a law enforcement database that
included probation and parole records. The record does not shed any light on why the
investigator’s search of the Justice Data Interface Controller system did not return results
for Bridges’s probation. That Bridges had future court appearance dates is also of little
import in this case. The majority does not explain how the mere fact that Bridges was
scheduled to appear in court almost a month after Jordan’s trial was set to begin could
have assisted the prosecution in locating him in advance of the Jordan trial.
Moreover, while each case must be evaluated on its unique circumstances,
relevant authorities on this issue support the conclusion that the prosecution’s efforts in
this case met the reasonable diligence standard. For example, in Wilson, an informant
testified at a first trial of the defendant. The California Supreme Court set aside the
judgment after finding the defendant’s counsel was ineffective for failing to object to
3
inadmissible portions of the informant’s testimony. At the penalty phase of the retrial,
the prosecution represented the informant was unavailable and requested to read into the
record portions of the testimony the Supreme Court concluded were admissible.
The first trial judgment was reversed in 1992; at that time the informant was still
in prison or was recently released. The first witness in the new trial testified in late
February 1994. The evidence adduced at a due diligence hearing established that in
November 1993, a detective made efforts over two days to locate the informant.
The detective visited the informant’s last known address, attempted to locate his known
associates, and checked police, county, and state records with 15 names the informant
had used. His efforts were unsuccessful. (Wilson, supra, 36 Cal.4th at p. 341.) The trial
court concluded the prosecution had established due diligence, and allowed the
prosecution to read portions of the prior testimony to the jury, including statements that
defendant told the informant he had hired a hit man to get rid of a particular witness.
(Id. at pp. 339-340.)
On appeal, the defendant challenged the due diligence finding. He contended the
prosecution should have contacted the informant soon after the first trial judgment was
reversed. He also argued the detective should have “attempted to locate [the informant’s]
family, checked with the post office for [the informant’s] forwarding address, followed
up with his visitors in prison, and determined whether he was a party in any civil
actions.” (Wilson, supra, 36 Cal.4th at pp. 341-342.) Our high court rejected these
arguments. It noted that the prosecution is not required to keep tabs on all material
witnesses, and, absent knowledge that the witness is a flight risk, the prosecution is not
required to take preventative measures to stop the witness from disappearing. The court
noted: “Except for describing [the informant] as ‘unreliable and of suspect credibility,’
defendant does not point to any evidence that the prosecution knew of a substantial risk
that [the informant] would disappear.” (Id. at p. 342.) The court determined the
detective’s efforts established reasonable diligence, and rejected the claim that the efforts
were not reasonable because other steps could have been taken. (Ibid; see also Valencia,
supra, 43 Cal.4th at p. 292 [reasonable diligence where investigator searched for
4
telephone number; searched DMV records; went to witness’s former addresses but
witness no longer lived there; spoke with neighbors but received no leads; and found
nothing searching a rap sheet, credit information, real estate holdings records, and court
proceedings].) I see little difference in the quality and quantity of the prosecution’s
efforts in Wilson, and the prosecution’s efforts in the case at bar.
In contrast, in People v. Cromer (2001) 24 Cal. 4th 889 (Cromer), a case cited by
the majority, the court found the prosecution did not exercise reasonable diligence.
The witness testified at a preliminary hearing under subpoena, but two weeks later, law
enforcement reported that 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, but 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,
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 know where [the witness] then was. Thus, serious efforts to locate [the witness]
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were unreasonably delayed, and investigation of promising information was unreasonably
curtailed.” (Cromer, supra, at p. 904.)
In this case, there is no evidence the prosecution knew or had reason to believe
Bridges 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].) The prosecution
investigator did not unreasonably delay in making serious efforts to find Bridges.
There is no indication that starting the search earlier would have helped the prosecution
find Bridges. (People v. Herrera (2010) 49 Cal. 4th 613, 630 [rejecting Court of Appeal
conclusion that prosecution was not diligent because it began search late; starting search
earlier would not have made a difference in ability to procure witness’s attendance at
trial].) While the prosecution in Cromer had promising leads that it simply failed to
pursue, here the investigator used several different, logical sources of information to try
to locate Bridges. He located and spoke with Bridges’s known associate, Deloach.
The investigator never discovered any promising information, despite reasonable and
competent efforts. The lack of prosecutorial diligence described in Cromer is not present
here.
In my view, when the focus is on what the prosecution actually did, rather than on
what it could have done, we should conclude the prosecution exercised reasonable
diligence in attempting to locate Bridges. I would therefore affirm the judgment.
BIGELOW, P.J.
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