People v. Velasquez CA2/1 ( 2023 )

Filed 10/25/23 P. v. Velasquez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B322450
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA480098)
v.
CESAR VELASQUEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Ronald S. Coen, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Sally Patrone, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Ryan M. Smith,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
Five men—Carlos V., Luis O., Jose P., Gerardo C., and an
unidentified man—came to a hotel looking for defendant Cesar
Velasquez. According to Carlos V., defendant earlier that
evening had robbed Carlos V. of his wallet and phone, and
Carlos V. had come with his companions to negotiate for their
return.
Defendant came into the hotel hallway as Carlos V.
knocked on doors looking for him. Luis O., positioned at the far
end of the hallway out of defendant’s view, immediately ran up
behind him. Defendant walked towards the other four men,
reaching for his waistband and shouting aggressively. Luis O.
reached defendant and grabbed him in a chokehold from behind.
Defendant began firing a pistol as Carlos V. and the unidentified
man ran to help Luis O. subdue defendant. When the fight was
over, defendant had shot and wounded both Carlos V. and
Luis O. Defendant himself had been stabbed.
The jury convicted defendant of attempted voluntary
manslaughter of Carlos V., assault with a firearm against Jose P.
and Gerardo C., grossly negligent discharge of a firearm, and
possession of a firearm by a felon. The jury acquitted defendant
of the attempted murder or voluntary manslaughter of Luis O.
Defendant appeals from the judgment.
The core question for the jury was whether defendant was
an aggressor who initiated a confrontation with the five men, or
instead, the victim of an attack to which he responded in
justifiable self-defense. The evidence on this question was close.
The jury heard Carlos V.’s and Luis O.’s preliminary hearing
testimony that their intentions were peaceful, and when
defendant drew his pistol and threatened them, they had no
choice but to defend themselves. This testimony was potentially
2
in tension with security camera footage that arguably showed
Carlos V.’s companions lying in wait as Carlos V. knocked on
doors looking for defendant, and further showed Luis O. running
up behind defendant as soon as defendant emerged from his hotel
room before defendant brandished any weapon. The jury’s
verdict, which exonerated defendant as to Luis O. but convicted
him as to Carlos V., Jose P., and Gerardo C., illustrates how close
the evidence was.
Carlos V. and Luis O. did not appear at trial. The trial
court found the prosecution had shown due diligence in
attempting to secure their presence, declared them unavailable,
and allowed the prosecution to read to the jury the transcript of
their preliminary hearing testimony.
Given the closeness of the evidence, and the importance of
Carlos V.’s and Luis O.’s testimony to the prosecution’s case, we
conclude under our independent review that the prosecution
failed to demonstrate due diligence to secure those witnesses’
presence at trial. The prosecution’s efforts were limited largely to
unreturned phone messages and unsuccessful attempts to serve
subpoenas at their residences. When these limited efforts failed,
the prosecution mostly just repeated them. When the prosecution
finally located Carlos V. at a hospital and served him with a
subpoena, the prosecution failed to take further steps to ensure
this previously uncooperative witness would appear at trial,
which indeed he did not. The prosecution never succeeded at
contacting Luis O., only learning on the eve of trial that he was
allegedly in Mississippi. At that point the prosecution took
minimal and unsuccessful steps to confirm Luis O.’s location and
made no further attempts to secure his presence at trial.
3
We conclude these efforts do not constitute due diligence
under the applicable case law. Accordingly, the prosecution
failed to demonstrate the witnesses were unavailable and the
trial court erred in admitting their preliminary hearing
testimony. This error was prejudicial given the close evidence
and how important determining credibility was to the parties’
competing explanations for the violence that took place at the
hotel.
Because the erroneous admission of Carlos V.’s and
Luis O.’s preliminary hearing testimony requires reversal of his
convictions for voluntary manslaughter, assault with a firearm,
and grossly negligent discharge of a firearm, we decline to reach
defendant’s additional arguments that the trial court erred in
admitting gang evidence and did not properly instruct the jury on
self-defense as to the assault counts. We do, however, reach and
reject defendant’s contention that the evidence established as a
matter of law that defendant acted in self-defense.
We further conclude that none of defendant’s claims of
error undercuts his conviction for possession of a firearm by a
felon, which we therefore affirm.
FACTUAL BACKGROUND
1. Security camera footage
The jury viewed security footage taken from multiple
cameras in the hotel. The cameras did not record continuously,
but would record when triggered by motion sensors. As a result,
there were gaps in the footage. Further, the timestamp on the
video was an hour behind actual time. The video showed the
following:
4
At 4:30 a.m., defendant and his girlfriend, R.G., entered the
hotel and went into a room on the second floor. Defendant was
carrying a blue bottle and a jug of juice.
Moments later, Carlos V. pulled his car into the hotel
parking lot. He went up to the second floor, walked to the end of
the hall, and knocked on the door of a room (not defendant’s
room).
While Carlos V. was standing at the door at the end of the
hall, defendant came out of his room carrying an ice bucket. He
saw Carlos V., who was now carrying two bottles of liquor, and
they conversed for about a minute. The two men then went into
defendant’s room.
Sixteen minutes later, Carlos V., now carrying only one
bottle, ran through the lobby to his car and drove out of the
parking lot. There was no footage of him leaving defendant’s
room.
About a minute later, defendant and R.G. exited their room
and left the hotel. Defendant was carrying what appeared to be
the same blue bottle and juice jug with which he entered. They
got into their car and drove out of the parking lot.
Seven minutes later, defendant and R.G. returned to the
hotel in their car and went back to the second floor. Defendant
was still carrying the blue bottle and juice jug. Apparently
having forgotten which was their room, they tried,
unsuccessfully, to unlock the door to another room. The occupant
of that room emerged to see what was happening, and defendant
apologized to her. There was no footage of defendant and R.G.
actually entering their room.
While the above transpired in the hallway, the parking lot
camera recorded a minivan driving out of the lot. Carlos V.’s car
5
suddenly pulled into the lot next to the minivan, and a second car
pulled up in front of the minivan, blocking it. A man in a striped
shirt (striped-shirt man) exited the passenger side of Carlos V.’s
car and circled the minivan on foot while looking at it. He then
looked towards the second car blocking the minivan, which
reversed out of the video frame. Someone on the driver’s side of
Carlos V.’s car, not sufficiently visible to identify, shouted at the
occupants of the minivan, who drove off. Striped-shirt man got
back into Carlos V.’s car, which then backed out of the parking
lot.1
About four minutes later, Carlos V., striped-shirt man, and
Luis O. walked across the parking lot, into the hotel, and took the
elevator to the second floor. They walked almost to the end of the
hall, at which point it appeared Carlos V. was not sure which
door he was trying to locate. Carlos V. and striped-shirt man
listened at a door for a moment. Carlos V. then knocked, while
striped-shirt man and Luis O. leaned against the wall, out of
view of the door.
While Carlos V. waited for someone to answer the door, two
more men, Jose P. and Gerado C., came into the hallway from the
lobby staircase and joined striped-shirt man and Luis O.
Carlos V. conversed through the door with the room occupant and
apparently decided it was the wrong room, at which point he
began knocking on other doors. Striped-shirt man, Jose P., and
Gerardo C. followed Carlos V., while Luis O. walked to the far
opposite end of the hall.
1 The parking lot footage described in this paragraph was
presented by the defense, and was not part of the prosecution’s
case-in-chief.
6
As Carlos V. was walking down the hall, defendant came
out of his room, looking up the hall towards Carlos V., striped-
shirt man, Jose P., and Gerardo C. Defendant started walking
towards them. Luis O., at the other end of the hall, immediately
began running towards defendant, who was turned away from
Luis O. and therefore apparently could not see him.
As Luis O. was running up behind defendant, defendant
walked past Carlos V. towards striped-shirt man, Jose P., and
Gerardo C., shouting, “What’s up, homie? What’s up, fool?” His
hand appeared to be reaching for his waistband in front. Luis O.
then reached defendant and grabbed him around the neck in a
chokehold.
Defendant at this point had a pistol in his hand and began
firing it as Luis O. struggled with him. The other four men took
cover. After a moment, Carlos V. and striped-shirt man joined
the melee and they and Luis O. wrestled with defendant as shots
continued to go off. Defendant wrested his gun hand free and
shot Luis O. in the side. Luis O. ran away, down the staircase, as
did Jose P.
Carlos V. and striped-shirt man continued to wrestle with
defendant as shots went off. At some point striped-shirt man
went out of the video frame and only Carlos V. and defendant
were grappling. During this struggle, defendant shot Carlos V. in
the abdomen.
Despite being shot, Carlos V. continued to grapple with
defendant. Striped-shirt man rejoined the fight, followed by
defendant’s girlfriend R.G., who attempted to pull striped-shirt
man and Carlos V. off defendant. Gerardo C. shoved R.G. but
otherwise stayed out of the fight. After further struggle, Carlos
7
V., striped-shirt man, and Gerardo C. fled down the stairs and
out of the hotel.
About two minutes later, a camera recorded defendant and
R.G. coming out of their room. Defendant had lifted his shirt up,
displaying a bleeding wound on the front of his torso. Defendant
and R.G. left the hotel and drove off.
It was undisputed at trial that defendant was stabbed
during the fight, although it is not clear from the video who
stabbed him and when.
2. Carlos V.’s preliminary hearing testimony
The trial court deemed Carlos V. unavailable at trial, and
allowed the investigating detective to read to the jury Carlos V.’s
testimony from the preliminary hearing. Carlos V. testified to
the following:
Carlos V. went to the hotel to pick up some tequila from a
friend. He ran into defendant in the hallway. Carlos V. knew
defendant as a customer at the liquor store where Carlos V.
worked. Carlos V. had no prior relationship with defendant other
than as a customer, and had never fought or argued with
defendant.
Carlos V. did not remember about what he and defendant
spoke other than it was a friendly conversation. Defendant asked
Carlos V. to come to his room. R.G. was in the room.
At this point, Carlos V.’s testimony differed from what he
told the police a few days after the incident. The investigating
detective testified at trial that Carlos V. told the police when he
entered defendant’s room, defendant grabbed him by the neck
and rifled through his pockets, taking his wallet and phone.
Defendant instructed Carlos V. to call his friends and tell them to
bring money or defendant would not let Carlos V. go. Defendant
8
asked R.G. to hand him his gun, which is when Carlos V. fled the
room.
At the preliminary hearing, however, Carlos V. denied
defendant had used force against him, and said he did not
remember if defendant took any property from him or told him he
could not leave unless his friends brought money. Carlos V. said
he did not want to be in court, had been compelled there by
subpoena, and was afraid to testify. He said, “I don’t snitch.”
Carlos V. said he was in defendant’s room 10 to 15 minutes
before he ran away. He said he ran when defendant reached for
something on the left side of the bed. Carlos V. did not know
what defendant was reaching for, but thought he had to “[r]un
away for my life.” Carlos V. took one of the tequila bottles with
him.
Carlos V. met up with his friends Luis O., Jose P., and
Gerardo C. and returned to the hotel five minutes later. (On the
video, the actual time between Carlos V. driving away and
returning to the parking lot was approximately 15 minutes.)
When asked about the striped-shirt man on the video, Carlos V.
said he did not know him.
Carlos V. told his companions he “needed to get back in
there and get my stuff,” meaning his “[w]allet, phone, money.”
Carlos V.’s intention was to talk to defendant, not to engage in
violence. When asked on cross-examination why Carlos V. had to
recover his wallet and phone if, as he had testified, he did not
recall defendant taking them from him, Carlos V. said he might
have dropped his items in defendant’s room.
Carlos V. did not remember what room defendant was in,
so he began knocking on doors. Asked why on the video his
9
companions pressed up against the wall out of sight, Carlos V.
said he did not want to scare defendant or make him nervous.
Defendant came out of his room before Carlos V. got to his
door. Carlos V. testified when he saw defendant, defendant
already was pointing a gun at Carlos V.’s chest. Carlos V., who
was unarmed, ran, and that is when defendant began firing.
Carlos V. said Luis O. then fought with defendant and “saved my
life.”
During the struggle, defendant shot Carlos V. in the
abdomen. Carlos V. lost a lot of blood and had to have two
surgeries that night.
Carlos V. denied being a gang member. Carlos V. believed
defendant was a member of the 18th Street gang because
defendant gestured to certain tattoos when Carlos V. was in
defendant’s room.
On cross-examination, defense counsel asked about a knife
found at the scene, which defense counsel contended could be
seen falling from Luis O.’s hand in the security video. Carlos V.
denied knowing Luis O. was armed.
3. Luis O.’s preliminary hearing testimony
The trial court also deemed Luis O. unavailable for trial,
and the investigating detective read Luis O.’s preliminary
hearing testimony to the jury. Luis O. testified to the following:
Luis O. and Carlos V. were good friends. The night of the
incident, Jose P. and Gerardo C. called Luis O. and told him
Carlos V. was being held at the hotel and someone had to bring
money to get him out. Luis O. went to the hotel with Jose P. and
Gerardo C., and as they were standing outside, Carlos V. came
running out.
10
Carlos V. said “Prayer” had his wallet and ID, and
Carlos V. wanted to go talk to him to try to get it back. (Other
evidence established that “Prayer” was defendant’s gang
moniker.) Luis O. testified their intention was to “peacefully talk
things out” and they “never wanted no trouble.” Neither
Carlos V. nor anyone else said defendant had a gun.
When defendant came out of his room, Luis O. saw him
“reaching to his crotch area” and taking out a gun. Defendant
aimed the gun at Luis O.’s friends and “blurted . . . out”
something “aggressive.” Luis O. said, “That’s why I decided to
get involved.” Asked if he personally could see the gun, Luis O.
said, “I could see. I seen the shininess of the gun.”
Luis O. was behind defendant. He approached him and
“tried to wrestle the gun out of his hand to save my companions[’]
life.” Luis O. denied having any weapons himself.
Defendant fired “five to nine bullets.” One bullet “grazed”
Luis O.’s abdomen, after which Luis O. could hear the gun was
clicking empty. “That’s when I told my friends to run.”
Luis O. was asked about the striped-shirt man during
cross-examination. He said he did not know him, and “thought
[he] was just a random guy.” Defense counsel also asked Luis O.
about the object in the video defense counsel contended was a
knife. Luis O. again stated he was unarmed during the incident.
4. Gang Evidence
The prosecution sought to admit evidence of defendant’s
gang membership to explain why, at the preliminary hearing,
Carlos V. recanted some of his statements to the police. Over
defense objection, the trial court stated it would “allow the People
to inquire.”
11
The prosecution called Efrain Moreno, an officer with the
Los Angeles Police Department, to testify as a gang expert.
Moreno opined that defendant was a member of the Columbia
Little Psychos clique of the 18th Street gang, and his gang
moniker was “Prayer.” Moreno explained that to gain status
within a gang, members must demonstrate they are “willing to do
anything [they are] asked to do. Anything. . . . The more violent
crimes you commit, the more respect you will gain from them, the
better of a position you will get within the gang.” Gang members
make money by selling narcotics and committing robbery and
extortion. Gangs want to establish themselves as “violent, well-
respected gang[s]” to “make sure everybody fears them.”
Moreno stated that non-gang-members are less likely to
cooperate with the police for fear of the gang retaliating against
them. In some cases, people will move away from the gang’s
territory to avoid retaliation, because “18th Street is huge.
They’re everywhere.” Moreno explained that “snitching” involves
giving information to the police. Non-gang-members who snitch
could get shot.
The defense objected to a question about defendant’s rank
in the gang hierarchy. In a sidebar, the prosecution explained
defendant’s rank was relevant because non-gang-members were
unlikely to target a high-ranking gang member. Thus,
defendant’s rank would tend to show Carlos V. and his
compatriots were not at the hotel with the intent to attack
defendant. The trial court overruled the objection.
Moreno then testified that defendant was the “shot-caller”
for his clique, meaning “the one in charge.” He opined that it
would be very dangerous for a non-gang-member to attack a shot-
12
caller, because there would “be a very violent response” from the
gang.
Moreno never met with Carlos V. or his four compatriots,
but after reviewing the security camera footage, he did not
believe he was familiar with them. He never received any
information that they were gang members, and believed they
were not given his lack of interaction with them during his time
in the gang unit.
The prosecution asked Moreno about the term “green light,”
which Moreno explained refers to the Mexican Mafia prison gang
ordering a hit on someone outside of prison. Moreno stated the
Mexican Mafia would not use non-gang-members to carry out a
green light order. Moreno acknowledged that after the incident,
defendant spoke to him about a green light order. Moreno had no
information about such an order apart from what defendant told
him.
5. Other prosecution evidence
A trauma surgeon testified that Luis O. and Carlos V. each
suffered a single gunshot wound. Carlos V.’s wound would have
been fatal without immediate surgery.
Police found a knife and eight spent ammunition cartridges
in the hallway, all fired from the same weapon, and bullet holes
in the walls. The glass shower door in one of the hotel rooms had
been shattered; police recovered a bullet from under the sink. In
defendant’s room, police found a live round of ammunition
matching the cartridges found in the hallway. They also found a
bottle of tequila.
13
6. Defense evidence
R.G., defendant’s girlfriend, testified she never saw
Carlos V. in her hotel room, although it was possible Carlos V.
and defendant spoke in the entry hall of the room, out of her
view.
Asked about the video footage of her and defendant leaving,
then returning to the hotel shortly after Carlos V. left, R.G. said
upon their return, defendant said he wanted to leave, and left the
room. Right after he left, R.G. heard a loud bang and shouting.
R.G. did not recognize any of the men fighting with
defendant except for Carlos V., whom she knew as an employee of
a liquor store.
R.G. said defendant is a member of the 18th Street gang,
and his nickname is “Prayer.”
The defense also called the investigating detective and
showed him the video footage of striped-shirt man circling the
minivan in the parking lot. Asked about an object visible in
striped-shirt man’s hand, the detective said, “It looks like it could
possibly be a knife.”
PROCEDURAL HISTORY
Defendant was charged with two counts of attempted
willful, deliberate, and premeditated murder based on his
shooting Luis O. and Carlos V. (counts 1 and 2, respectively),
with enhancements alleged for use of a firearm and, in
Carlos V.’s case, infliction of great bodily injury. He was further
charged with two counts of assault with a semiautomatic firearm
against Jose P. and Gerardo C. (counts 7 and 8), one count of
discharge of a firearm with gross negligence (count 9), and one
14
count of possession of a firearm by a felon (count 10).2 In
addition, the information alleged several aggravating factors.
The trial court instructed the jury on self-defense and, for
the attempted murder counts, the lesser included offense of
attempted voluntary manslaughter.
The jury acquitted defendant of attempted murder and
attempted voluntary manslaughter of Luis O., but convicted him
of attempted voluntary manslaughter of Carlos V. and found true
the firearm and great bodily injury allegations. The jury
convicted defendant of both counts of assault with a firearm, as
well as the counts for grossly negligent discharge of a firearm and
possession of a firearm by a felon. In a bifurcated court trial, the
trial court found true aggravating factors based on defendant’s
prior convictions, prison terms, and parole or probation status.
The trial court sentenced defendant to a total of 23 years
10 months in state prison. This consisted of 18 years 6 months
for the attempted voluntary manslaughter count, calculated as
the high term of 5 years 6 months plus the high term of 10 years
for the firearm enhancement and 3 years for the great bodily
injury enhancement. The court then imposed additional
consecutive sentences of 2 years each for the assault counts, and
8 months each for the gross negligent discharge and possession
counts. The court imposed fines and fees and awarded credits.
Defendant timely appealed.
2Counts 3 through 6 were counts the prosecution
contemplated charging but ultimately chose not to include in the
information.
15
DISCUSSION
A. The Prosecution Failed To Demonstrate Carlos V.
and Luis O. Were Unavailable at Trial Such That the
Jury Could Hear Their Preliminary Hearing
Testimony
Defendant argues the trial court erred by declaring
Carlos V. and Luis O. unavailable at trial and permitting the jury
to hear their preliminary hearing testimony. We agree.
1. Governing law
Under the federal and state Constitutions, a criminal
defendant has the right to confront the witnesses against him.
(U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) That right
is not absolute. (People v. Wilson (2021) 11 Cal.5th 259, 290
(Wilson).) “If a witness is unavailable but had previously
testified against the defendant and was subject to cross-
examination at that time, that prior testimony may be admitted.”
(Ibid.; Evid. Code, § 1291, subd. (a)(2) [“Evidence of former
testimony is not made inadmissible by the hearsay rule if the
declarant is unavailable as a witness and: [¶] . . . [¶] . . . The
party against whom the former testimony is offered was a party
to the action or proceeding in which the testimony was given and
had the right and opportunity to cross-examine the declarant
with an interest and motive similar to that which he has at the
hearing”].) This includes preliminary hearing testimony.
(Wilson, at p. 290.)
Evidence Code section 240, subdivision (a)(5) provides that
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
16
attendance by the court’s process.” Under this subdivision, “[t]he
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.] While due diligence lacks
a precise definition, [the Supreme Court has] explained that it
‘ “ ‘connotes persevering application, untiring efforts in good
earnest, [and] efforts of a substantial character.’ ” ’ [Citation.]”
(Wilson, supra, 11 Cal.5th at p. 291.) “[C]ourts have not found
adequate diligence[ when] the efforts of the prosecutor or defense
counsel have been perfunctory or obviously negligent.” (People v.
Bunyard (2009) 45 Cal.4th 836, 855.) “On the other hand,
diligence has been found when the prosecution’s efforts are
timely, reasonably extensive and carried out over a reasonable
period.” (Id. at p. 856.)
“We review de novo the trial court’s unavailability
determination, although we defer to the trial court’s
determination of historical facts supported by substantial
evidence.” (Wilson, supra, 11 Cal.5th at p. 291.) Among the
factors to be considered in our independent review are “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.” (Ibid.) “Federal authority also suggests
that ‘a good measure of reasonableness is to require the State to
make the same sort of effort to locate and secure the witness for
trial that it would have made if it did not have the prior
testimony available.’ [Citation.]” (Id. at p. 293.) Further, “when
there is knowledge of ‘ “a substantial risk” ’ that an ‘ “important
witness would flee,” ’ the prosecutor is required to ‘ “take
17
adequate preventative measures” to stop the witness from
disappearing.’ [Citation.]” (People v. Friend (2009) 47 Cal.4th 1,
68 (Friend).)
2. Additional background
Defendant’s preliminary hearing took place on
February 28, 2020. As noted previously, at that hearing,
Carlos V. said he did not want to be in court, had been compelled
there by subpoena, and was afraid to testify. He added, “I don’t
snitch.”
On April 13, 2022, the day after jury selection, the trial
court held a due diligence hearing regarding the prosecution’s
efforts to secure Carlos V.’s and Luis O.’s presence at defendant’s
trial.
The prosecution called Craig Marquez, the investigating
detective. Marquez testified the prosecution requested he make
contact with Carlos V. and Luis O. in early November 2021 to
make them available to meet with an investigator hired by the
defense. Marquez went to each man’s residence and left several
phone messages for each of them. Despite these efforts, Marquez
was unable to contact them at that time.
On or around March 3, 2022, Marquez attempted to serve
subpoenas on Carlos V. and Luis O. to appear in court on
March 16, 2022 for defendant’s trial. Marquez went to each
man’s residence, and finding neither at home, left his business
card.
On March 15, 2022, Marquez again attempted to serve
subpoenas for an appearance on April 4, 2022. Marquez called
both men and left messages. When they did not respond, he went
to their residences but again was unsuccessful in serving the
subpoenas. He made similar efforts on April 4, 2022 to serve
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subpoenas for an appearance on April 7, 2022, again without
success.3
On April 6, 2022, Marquez located Carlos V. at a hospital.
Carlos V. told Marquez he was there for treatment of an infection
in his gunshot wound. Marquez served him with a subpoena to
appear on April 7, 2022. Carlos V. told him he did not want to
come to court.
Carlos V. did not appear on April 7, 2022.4 Marquez and
the prosecutor went to the hospital together that afternoon to
speak with him. Carlos V. was still hospitalized, and Marquez
was unable to obtain an updated prognosis as to when Carlos V.
would be released. When Carlos V. indicated he could get in
touch with Luis O., Marquez asked him to do so. Marquez also
reiterated that Carlos V. had to come to court to testify.
Carlos V. “was uncooperative. He was not desirous of coming to
court.”
Later that day, after the prosecutor and Marquez left the
hospital, Carlos V. was discharged. Since that time, Marquez
had called Carlos V. at least four times, but Carlos V. had not
returned Marquez’s calls. Asked if Carlos V. had “been at any of
the locations you’ve gone to to try to locate him,” Marquez said,
“As of last night, no.” The previous night, April 12, 2022,
3 The trial court continued the trial date several times, and
the change in the appearance dates on the subpoenas matched
the continued trial dates.
4 At the April 7 proceeding, the trial court granted the
prosecution’s request for a continuance until April 11, 2022. The
minute order does not indicate the reason for the continuance
and the record does not contain a reporter’s transcript for that
day.
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uniformed officers had tried twice to serve Marquez with a
subpoena but were unable to make contact. Asked if “between
you and other uniformed officers, . . . you’ve attempted to contact
[Carlos V.] at different times of the day at the locations,”
Marquez said yes. Marquez had also arranged for a photograph
of the subpoena to be sent to Carlos V.’s phone, along with a text
message instructing him to contact Marquez and appear in court.
As for Luis O., Marquez went to his residence on April 11,
2022. No one answered the door, so Marquez left his business
card. Later that day, Luis O.’s uncle, with whom Marquez was
familiar, called Marquez. The uncle said Luis O. was in
Mississippi for a job, which would be completed by the last week
of April or the beginning of May 2022. The uncle was unable to
give Marquez more specific information about Luis O.’s location
or for whom Luis O. was working. Marquez checked whether
Luis O. had a Mississippi driver’s license, which he did not, nor
did Marquez find any indication that Luis O. had been cited or
arrested in Mississippi. He therefore had no evidence Luis O.
was in Mississippi apart from the uncle’s statement.
Marquez confirmed police at no point staked out Carlos V.’s
or Luis O.’s residences in an attempt to locate them. Marquez
checked if Carlos V. had any arrests or citations in Los Angeles,
and found none.
Following argument from the parties, the trial court found
the prosecution had exercised due diligence in attempting to
secure Carlos V.’s and Luis O.’s presence at trial, and declared
both witnesses unavailable. Accordingly, the trial court
permitted the jury to hear those witnesses’ testimony from the
preliminary hearing.
20
3. Analysis
Independently reviewing the evidence, we disagree with
the trial court’s due diligence finding. We note initially that
Carlos V. was a crucial witness for the prosecution. The
prosecution had to prove that it was defendant, not Carlos V. and
his compatriots, who was the aggressor, and therefore he was not
entitled to claim self-defense. Carlos V.’s testimony was the sole
source of all that transpired between him and defendant in the
hotel room before he returned with his companions. Carlos V.
also explained why he and his companions returned, despite the
threat defendant purportedly represented, and it was Carlos V.
who provided the evidence of his peaceful intentions. Carlos V.
also testified as to how defendant pointed a gun directly at him,
thus instigating the hallway struggle.
Luis O.’s testimony corroborated Carlos V.’s testimony,
including defendant’s demand for money in exchange for
Carlos V.’s release, Carlos V.’s peaceful intentions upon returning
to the hotel, and defendant’s initiating the conflict by pointing a
weapon at Carlos V. and the others.
Both men’s testimony particularly was important because
the video evidence was somewhat at odds with their version of
events. The undisputed evidence indicated that five men, at least
one armed with a knife, came to the hotel looking for defendant.
As Carlos V. knocked on doors looking for defendant’s room, his
compatriots pressed themselves against the wall out of sight, and
Luis O. positioned himself at the far end of the hall. Carlos V.
claimed his companions hid to avoid making defendant nervous,
but an equally plausible explanation is that they were positioning
themselves for a possible fight. Although Luis O. testified he
grabbed defendant because defendant was brandishing a weapon
21
at Luis O.’s companions, the video shows Luis O. beginning to
run up behind defendant as soon as defendant emerged from his
room, before defendant had spoken or taken any other action.
Although by the time Luis O. reached defendant, defendant
either had drawn a gun or was in the process of doing so, it is
debatable what actions defendant would have taken had Luis O.
not seized him around the throat, at which point defendant began
firing his pistol.
Carlos V.’s and Luis O.’s testimony of their peaceful
intentions arguably was also in tension with the parking lot
footage of Carlos V.’s car and a second vehicle blocking the
minivan that was trying to leave, and the striped-shirt man
circling the van before the second vehicle moved, allowing the
minivan to depart. This suggested Carlos V. and his companions
were at the hotel with aggressive intent, or at least that they
were not there humbly to negotiate return of Carlos V.’s
belongings.
Put simply, Carlos V. and Luis O. were critical witnesses
for the prosecution, and had their preliminary testimony not been
available, the prosecution undoubtedly would have gone to
considerable effort to secure their presence at trial. (See Wilson,
supra, 11 Cal.5th at p. 293 [evaluating whether the prosecution
“ ‘ma[d]e the same sort of effort to locate and secure the witness
for trial that it would have made if it did not have the prior
testimony available’ ”].)
Under these circumstances, we conclude the prosecution’s
efforts to locate Carlos V. and Luis O. fell short. As to Carlos V.,
there was strong indication he would not come to court
voluntarily. He demonstrated significant reluctance to testify at
the preliminary hearing, expressly indicating he was not there by
22
choice and was afraid. He did not return Marquez’s phone
messages in November 2021 or March and April 2022, and no one
answered the door when Marquez visited his residence. When
Marquez found him at the hospital shortly before trial, he was
uncooperative and averse to coming to court.
Despite Carlos V.’s clear reluctance, the prosecution did
nothing more to secure his attendance than serve a subpoena.
When Carlos V. ignored that subpoena, the prosecution did not
change tactics in any significant way, but merely attempted to
serve him again, with Marquez this time enlisting the aid of
uniformed officers and sending a photograph of the subpoena to
Carlos V.’s phone. Our Supreme Court has held that when a
witness is indisputably unreliable, “mere service of process
does not and cannot satisfy the requirement of due diligence.”
(People v. Louis (1986) 42 Cal.3d 969, 992, fn. 6 (Louis).) Nor is it
due diligence to repeat the same unsuccessful tactics to serve
that subpoena. Although the prosecution hinted through its
questions to Marquez that Marquez looked for Carlos V. at
locations other than his residence, Marquez gave no specific
information as to those other locations, thus providing no
substantial evidence of efforts beyond calling Carlos V. and
visiting his residence.
As for Luis O., the prosecution and police similarly engaged
in repeated unsuccessful attempts to reach him by phone or at
his residence, never changing their strategy although it was clear
Luis O. was not responsive to these efforts. It was not until the
eve of trial when Marquez heard from Luis O.’s uncle that
Luis O. was in Mississippi, at which point the prosecution
decided nothing more could be done.
23
The prosecution’s efforts in the instant case stand in
contrast to those found sufficient in Wilson, a case in which our
high court concluded the witness was not “critical” to the
prosecution’s case. (Wilson, supra, 11 Cal.5th at p. 293.) In
Wilson, when the witness at issue failed to appear after receiving
a subpoena, police attempted to contact him multiple times at his
last known address, his workplace, his ex-girlfriend’s home, and
his “frequent hangouts.” (Id. at pp. 288–289, 291–292.) Police
interviewed a neighbor who reported the witness had not been at
home for months, and confirmed from the witness’s ex-girlfriend
the witness had moved to an unknown location to avoid
testifying. (Id. at pp. 291–292.) A police detective also reached
the witness by phone, and the witness refused to provide his
address or permanent phone number. (Id. at p. 292.) Although
the witness repeatedly agreed to meet with the detective, he
never appeared at the meetings. (Ibid.) The prosecution
ultimately obtained from the trial court a body attachment order
for the witness with bail set at $50,0000. (Id. at p. 288.) Still,
the witness did not appear. Ten days later, the trial court held a
due diligence hearing and concluded the prosecution had made
reasonable efforts and the witness was unavailable. (Id. at
pp. 288–289.) Our Supreme Court agreed. (Id. at p. 292.)
Unlike in Wilson, the evidence in the instant case does not
show the prosecution or police following multiple leads to find
Carlos V. and Luis O., such as visiting their workplaces or
hangouts or speaking with neighbors and acquaintances. The
prosecution did not seek a body attachment order to compel
Carlos V.’s compliance with the subpoena he had ignored.
Rather, the prosecution team continued its unsuccessful strategy
of attempting to serve Carlos V. subpoenas at his home. Apart
24
from checking if Luis O. had a driver’s license or arrest history in
Mississippi, Marquez made no further efforts to confirm Luis O.
was out of state.
Carlos V.’s reluctance to testify, which he repeated even
when served with a subpoena in the hospital, also demonstrated
“ ‘ “a substantial risk” ’ that an ‘ “important witness would
flee.” ’ ” (Friend, supra, 47 Cal.4th at p. 68.) The prosecutor thus
was “required to ‘ “take adequate preventative measures” to stop
the witness from disappearing.’ [Citation.]” (Ibid.) No such
measures occurred; there was, for example, no effort to enforce
the subpoena by seeking a body attachment order or to stake out
Carlos V.’s home or place of work to ensure he would come to
court the next day.
The Attorney General cites case authority for the
proposition that “[t]o have a material witness who has committed
no crime taken into custody, for the sole purpose of ensuring the
witness’s appearance at a trial, is a measure so drastic that it
should be used sparingly.” (People v. Cogswell (2010) 48 Cal.4th
467, 477.) This is true as a general proposition. But it does not
preclude resorting to strong measures to ensure the appearance
of a critical witness like Carlos V. Here, there was not even
evidence that the prosecution informed Carlos V. at the hospital
of potentially being arrested if he did not appear, or that the
prosecution took steps to monitor Carlos V. to ensure his
appearance.
People v. Fuiava (2012) 53 Cal.4th 622 (Fuiava), cited by
the Attorney General, is unavailing. Although the Supreme
Court in that case concluded the prosecution had shown sufficient
diligence, the prosecution team in that case had taken more steps
to locate the witness than did the prosecution team in the instant
25
case, including checking three different addresses, periodically
checking hospital and jail records, attempting to locate the
witness’s brother, and interviewing neighbors. (Id. at p. 677.)
Also, as in Wilson, the court deemed the witness in Fuiava not
critical to the prosecution’s case, which impacted the due
diligence assessment. (Ibid.)
The Attorney General notes in Fuiava, the court rejected
the argument that the prosecution should have kept tabs on the
witness between the preliminary hearing and the trial merely
because the witness had expressed some fear of testifying.
(Fuiava, supra, 53 Cal.4th at p. 676.) Fuiava stated, “ ‘[W]e could
not properly impose upon the People an obligation to keep
“periodic tabs” on every 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.’ ” (Ibid.,
quoting People v. Hovey (1988) 44 Cal.3d 543, 564.)
Our conclusion is not based on the prosecution’s failure to
keep tabs on the witnesses between the preliminary hearing and
trial. It is based, in Carlos V.’s case, on the prosecution’s failure
to monitor him or otherwise prevent Carlos V. from disappearing
in the few days between when he was located in the hospital and
when he was needed at trial. It is further based on the
prosecution’s failure, as Fuiava put it, to “competently pursue[ ]
the leads” as to the witnesses’ whereabouts. (Fuiava, supra,53 Cal.4th at p. 677.) The prosecution did not develop leads for
the most part, limiting its efforts to telephone calls and visits to
the witnesses’ residences, efforts that yielded no fruit and yet led
to virtually no change in tactics.
26
The Attorney General further cites Fuiava for the
proposition that “ ‘it is always possible to think of additional
steps that the prosecution might have taken to secure the
witness’ presence [citation], but the Sixth Amendment does not
require the prosecution to exhaust every avenue of inquiry, no
matter how unpromising.’ ” (Fuiava, supra, 53 Cal.4th at p. 677.)
This proposition does not assist the prosecution here, which
hardly exhausted any avenues. There is no reason to conclude
that further inquiry or efforts would have been “ ‘unpromising.’ ”
In short, we cannot conclude the prosecution would not
have made more effort to secure Carlos V.’s and Luis O.’s
appearance had it not had those witnesses’ preliminary hearing
testimony. We therefore cannot conclude the prosecution’s efforts
demonstrated due diligence so as to allow admission of
Carlos V.’s and Luis O.’s preliminary hearing testimony.
The error in admitting that testimony was not harmless.
(See People v. Hull (2019) 31 Cal.App.5th 1003, 1034–1035
[erroneous admission of prior witness testimony harmless if it is
“ ‘ “clear beyond a reasonable doubt that a rational jury would
have found the defendant guilty absent the error” ’ ”].) As
previously discussed, without that testimony, the jury would
have had no evidence that defendant had robbed and threatened
Carlos V., that Carlos V.’s intentions were peaceful, and that the
fight began because defendant pointed a gun at Carlos V. Absent
that evidence, it would have been more difficult for the
prosecution to establish defendant as the aggressor as opposed to
a victim acting in lawful self-defense.
The Attorney General contends the video evidence
independently establishes defendant’s guilt even without the
preliminary hearing testimony. As we have explained, the
27
evidence was close, and the video evidence, in fact, seems at odds
with some of Carlos V.’s and Luis O.’s testimony. The verdicts
exonerating defendant as to Luis O. but convicting him as to the
other victims is further indication of the closeness of the
evidence.
We further note that discrepancies between the testimony
and the video put Carlos V.’s and Luis O.’s credibility front and
center in the case. This made it all the more vital that defendant
should have the opportunity to confront those witnesses and
challenge their credibility before the jury. (See Louis, supra,
42 Cal.3d at p. 989 [a witness whose credibility is suspect is
“precisely the type of witness that a jury needs to scrutinize in
person”].)
We therefore reverse the convictions for voluntary
manslaughter, assault with a firearm, and grossly negligent
discharge of a firearm. As we discuss post, however, defendant
does not show that admission of the preliminary hearing
testimony was prejudicial as to the charge for possession of a
firearm by a felon.
B. The Evidence Did Not Establish as a Matter of Law
That Defendant Acted in Self-Defense
Defendant argues the evidence established as a matter of
law that he acted in lawful self-defense, and therefore there was
insufficient evidence to convict him of attempted voluntary
manslaughter, assault, and grossly negligent discharge of a
firearm. We disagree.
“ ‘To assess the evidence’s sufficiency, we review the whole
record to determine whether any rational trier of fact could have
found the essential elements of the crime or special
circumstances beyond a reasonable doubt. [Citation.] The record
28
must disclose substantial evidence to support the verdict—i.e.,
evidence that is reasonable, credible, and of solid value—such
that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citation.] In applying this test, we
review the evidence in the light most favorable to the prosecution
and presume in support of the judgment the existence of every
fact the jury could reasonably have deduced from the evidence.
[Citation.] “Conflicts and even testimony [that] is subject to
justifiable suspicion do not justify the reversal of a judgment, for
it is the exclusive province of the trial judge or jury to determine
the credibility of a witness and the truth or falsity of the facts
upon which a determination depends. [Citation.] We resolve
neither credibility issues nor evidentiary conflicts; we look for
substantial evidence. [Citation.]” [Citation.] A reversal for
insufficient evidence “is unwarranted unless it appears ‘that
upon no hypothesis whatever is there sufficient substantial
evidence to support’ ” the jury’s verdict.’ [Citation.]” (People v.
Penunuri (2018) 5 Cal.5th 126, 142.)
A shooting “ ‘based on a reasonable belief that killing is
necessary to avert an imminent threat of death or great bodily
injury[ ] is a complete justification, and such a killing is not a
crime.’ [Citation.]” (People v. Beck and Cruz (2019) 8 Cal.5th
548, 648, italics omitted.) The self-defense doctrine, however,
“ ‘may not be invoked by a defendant who, through his own
wrongful conduct (e.g., the initiation of a physical attack or the
commission of a felony), has created circumstances under which
his adversary’s attack or pursuit is legally justified.’ ” (People v.
Eulian (2016) 247 Cal.App.4th 1324, 1333.) Further, to the
extent a defendant’s belief that he is in imminent danger of death
or great bodily injury is unreasonable, he may not claim self-
29
defense—rather, a killing under those circumstances constitutes
voluntary manslaughter under the doctrine of imperfect self-
defense. (Beck and Cruz, at p. 648.)
As defendant characterizes the evidence, five men, some
armed with knives, came to the hotel with the intent to attack
him. When he emerged from his room, they immediately placed
him in a chokehold from behind and stabbed him, thus justifying
his use of lethal force to protect himself.
Defendant presents one hypothesis supported by the
evidence, but it is not the only one, even if we look solely to the
video evidence. By acquitting defendant of the shooting of
Luis O., the jury apparently concluded defendant was entitled to
use lethal force in that circumstance after Luis O. placed him a
chokehold. The jury could have concluded differently, however,
as to the other victims. The jury might have found, for example,
that defendant drew his pistol before he realized Luis O. was
behind him, thus committing assault, a felony, which both
obviated a claim of self-defense and entitled the victims to
respond in kind.
People v. Collins (1961) 189 Cal.App.2d 575, cited by
defendant, is distinguishable. In Collins, the defendant claimed
he clubbed a man to death with a wine bottle when the man
attempted to sexually “molest” him. (Id. at p. 579.) Following a
bench trial, the court convicted the defendant of voluntary
manslaughter. (Id. at p. 577.) The Court of Appeal reversed,
finding the evidence established as a matter of law that the
defendant acted in self-defense. (Id. at pp. 592–593.) The court
noted, inter alia, there “was nothing inherently improbable in
defendant’s account of the affray and no evidence that it occurred
in any manner other than” that presented by the defendant. (Id.
30
at p. 590.) The physical evidence, including the comparative size
of the defendant and the victim “tend[ed] to corroborate
defendant’s statements.” (Ibid.) There was no evidence of
previous animosity between the defendant and the victim, “no
evidence of any motive other than self-defense,” and “no evidence
of an intent to kill, or of flight, or of anything indicating a
consciousness of guilt.” (Ibid.) “There was no evidence
disproving the claim of self-defense.” (Id. at p. 591.)
A crucial difference between Collins and the instant case is
here there was indeed evidence that the shooting occurred in a
manner other than that advanced by the defense. As previously
detailed, there was evidence to support the conclusion that
defendant initiated the conflict by brandishing his weapon at
Carlos V., Jose P., and Gerardo C., which the jury could conclude
he did before he knew Luis O. was behind him. It cannot be said
as a matter of law that defendant acted in self-defense, when the
evidence could support a different conclusion.5
C. We Do Not Reach Defendant’s Other Arguments
Defendant contends the trial court erroneously admitted
irrelevant and unduly prejudicial evidence of his gang
membership, and compounded that error by not providing a
limiting instruction constraining the jury’s use of that evidence.
Defendant further argues the trial court did not adequately
instruct the jury that self-defense was a defense to the two counts
5 The fact there was evidence substantial enough to negate
defendant’s claim of self-defense does not undercut our conclusion
that the admission of Carlos V.’s and Luis O.’s preliminary
hearing testimony was prejudicial error requiring reversal.
31
of assault with a firearm.6 Because we reverse on the basis of
erroneous admission of Carlos V.’s and Luis O.’s preliminary
hearing testimony, we decline to reach these additional
arguments.
D. There is No Basis To Reverse the Conviction for
Possession of a Firearm By a Felon
Defendant raises no arguments specific to his conviction for
possession of a firearm by a felon, nor does he demonstrate that
any of his claims of error requires reversal of that conviction.
The elements of the offense are “ ‘conviction of a felony and . . .
knowing possession, custody, or control of a firearm.’
[Citations.]” (People v. Clark (2021) 62 Cal.App.5th 939, 952,
fn. 10; Pen. Code, § 29800, subd. (a)(1).) Defendant stipulated to
a prior felony conviction, and the video evidence was
unmistakable in showing that he knowingly possessed a firearm,
which he drew and fired. Beyond a reasonable doubt, the jury
would have convicted defendant of that offense regardless of the
erroneous admission of Carlos V.’s and Luis O.’s preliminary
hearing testimony, or the purported errors in admitting gang
testimony or inadequately instructing the jury on self-defense as
to the assault charges. Any such errors therefore were harmless
as to the conviction for possession of a firearm by a felon.
6 In his opening brief, defendant also argues the trial court
did not adequately instruct the jury that self-defense applied to
the charge of grossly negligent discharge of a firearm. In his
reply brief, defendant expressly withdraws this argument.
32
DISPOSITION
The judgment of conviction for count 10, possession of a
firearm by a felon, is affirmed. The judgment of conviction
otherwise is reversed, and the entire sentence is vacated.
The matter is remanded to the trial court with directions to
allow the People to retry the reversed counts. Following retrial,
or if the People elect not to proceed with retrial, the trial court
shall resentence defendant and send a new abstract of judgment
to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
WEINGART, J.
33