Filed 5/18/15 P. v. Cunningham CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065699

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD252519)

DORIAN RHAMONE CUNNINGHAM,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Melinda J.

Lasater, Judge. Affirmed.

         Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Arlene A. Sevidal, Junichi P. Semitsu and Christen Somerville, Deputy Attorneys

General.
       A jury convicted Dorian Rhamone Cunningham of pimping (Pen. Code,1 § 266h,

subd. (a)) and simple assault (§ 240). In bifurcated proceedings, the trial court found true

allegations Cunningham had suffered prior convictions for robbery (§ 211) and criminal

street gang activity (§ 186.22, subd. (b)(1)), which were serious or violent felonies.

(§§ 667, subds. (b)-(i), 668.) It sentenced Cunningham to a total of eight years,

consisting of the middle term of four years on the pimping conviction, doubled under the

"Three Strikes" law.

       Cunningham contends the court erroneously admitted preliminary hearing

testimony from the victim, Andrea Cox, in violation of Cunningham's state and federal

constitutional rights to confrontation. He also contends that absent Cox's preliminary

hearing testimony, her statements to the police regarding his role in her prostitution

activities was the only evidence to support the pimping conviction, and those statements

were inadmissible hearsay. We affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Cunningham and Cox had a romantic relationship for four years. Cox struggled to

support her two children from a different relationship. Cunningham had suggested Cox

engage in prostitution, but she refused. Cox later struggled financially and started

engaging in prostitution to make money.

       On November 27, 2013, Cunningham punched Cox multiple times in the face,

splitting her lip. Cox left the house, walked to a nearby gas station and phoned the



1      All statutory references are to the Penal Code unless otherwise specified.
                                             2
police, who arrested Cunningham. San Diego Police Officer David Abrams interviewed

Cox, who related she had prostituted herself for one month and made approximately

$800, which she gave to Cunningham. Cox told San Diego Police Officer Vincent Bales

that Cunningham had initially raised the topic of prostitution with her and when she

declined, he ignored her. Cox added that Cunningham took photos for her online

prostitution advertisements and provided her with condoms. Bales testified as an expert

that when Cox did "in-calls, [Cunningham] would be close by. . . . She didn't say she

knew where he was, but that's very typical in my experience that the pimp will be close.

Typically they'll sit out in the car or on a bus stop close to the hotel to provide security.

In this case Ms. Cox actually testified and told three different people at one point Mr.

Cunningham had to intervene." Bales concluded Cunningham was Cox's pimp, and

Cunningham's conduct evinced "part of the manipulation" a pimp exerted over someone

engaging in prostitution.

       At a December 17, 2013 preliminary hearing, Cox was granted immunity from

prostitution charges and testified against Cunningham. She initially refused to answer

certain prosecution questions but relented after the court threatened her with contempt.

Immediately following her testimony that day, the People served Cox with a subpoena to

appear at Cunningham's trial on February 5, 2014.

       On February 5, 2014, Cunningham was unwilling to waive time for his trial to

start or abide by an agreement between his counsel and the prosecutor to continue the




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trial.2 Cox failed to appear and the court issued a bench warrant for her arrest. The

People argued Cox was unavailable and requested her preliminary hearing testimony be

read into the record.

       The People's paralegal testified she spoke with Cox eight days before trial and

confirmed Cox's address, but did not specifically remind her of the trial start date. The

day before trial, the People twice attempted to contact Cox by phone to offer her

transportation to trial, but they were unable to leave her a message.

       Cunningham objected to Cox's prior testimony being read into the record, arguing

that doing so violated his Sixth Amendment right to confrontation. The court concluded

the People had exercised diligence by subpoenaing Cox within the statutory period and

telephoning her eight days before trial. The court added: "[The People] didn't just wait

until [Cox] didn't show up today, but she didn't show up today. They asked for the bench

warrant. They have the bench warrant and they—I'm assuming they will continue to try

to reach her and to have her come in . . . but I don't think that they were obligated

yesterday afternoon when she didn't pick up the phone to send somebody out. [¶] They

weren't obligated to send somebody else out this morning. Besides, until she doesn't

show up, they don't have the authority to arrest her and bring her in." The court declared


2      The prosecutor argued that at the previous readiness hearing the parties had agreed
that on the first day of trial they would continue the case, and they chose that date
precisely to ensure Cox would appear; if she failed to appear, the People had planned to
issue a warrant to secure her appearance at the continued start date of trial: "Again,
because Mr. Cunningham—which is his right to do—demand[s] trial notwithstanding [a]
good cause motion by the defense attorney. We don't have time now to do more than
what we have already done. [¶] And in that regard the People have gone above and
beyond what is required for due diligence in this instance."
                                              4
Cox an unavailable witness and ordered her preliminary hearing testimony read into the

record.

                                       DISCUSSION

       Cunningham contends his conviction for pimping must be reversed because the

prosecution failed to exercise due diligence to secure Cox's presence at trial; therefore,

the court violated his confrontation right by admitting her preliminary hearing testimony.

He specifically argues: "Previously for the preliminary hearing, the prosecutor had

provided transportation to [Cox] and her children, but no offer was made to [her] the

week before trial. Then the two other lame attempts at contact were made the day before

trial within 30 minutes of each other and both calls resulted in one ring and then a dead

phone. No messages were left; no other phone calls were attempted and no further

investigation was instigated. No one was sent to the address to determine whether [Cox]

lived there, now [sic] were any further investigatory methods used to try to locate Ms

Cox's, an admitted prostitute, whereabouts, [sic] like any computerized database

searches. [¶] Finally, even though Mr. Cunningham would not waive time for trial, there

was still ten days [sic] remaining to begin the trial and the prosecutor made no request for

[a] short continuance nor did the court suggest a continuance to allow further efforts to be

made."

       Both the federal and state Constitutions guarantee a criminal defendant the right to

confront the prosecution's witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.)

"The right of confrontation 'seeks "to ensure that the defendant is able to conduct a

'personal examination and cross-examination of the witness, in which [the defendant] has

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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." ' " ' " (People v. Herrera (2010) 49 Cal.4th 613, 620-621 (Herrera).)

The confrontation right has its limits. Unavailable witnesses may have testimony that

was subject to cross-examination admitted if they gave that testimony in a previous court

proceeding against the same defendant and the prosecution made a good faith effort to

have the witness present at trial. (People v. Fuiava (2012) 53 Cal.4th 622, 674-675

(Fuiava).)

       California codified this exception to confrontation rights for prior recorded

testimony in Evidence Code section 1291, subdivision (a): "Evidence of former

testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a

witness and: [¶] . . . [¶] (2) The party against whom the former testimony is offered

was a party to the action or proceeding in which the 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." A witness is unavailable if "[a]bsent from the

hearing and the proponent of his or her statement has exercised reasonable diligence" in

attempting to procure his or her presence by the court's process. (Evid. Code, § 240,

subd. (a)(5).) Although Evidence Code section 240 refers to "reasonable diligence,"

                                              6
courts have often described the analysis as one of "due diligence" or a "good-faith effort."

(People v. Bunyard (2009) 45 Cal.4th 836, 848-849.)

       "We have said that 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." (People v. Cromer (2001) 24

Cal.4th 889, 904.) State and federal requirements do not vary here. (Herrera, supra, 49

Cal.4th at p. 622; Fuiava, supra, 53 Cal.4th at p. 675.) The due diligence requirement

also applies to preventing a present witness from becoming absent. (People v. Roldan

(2012) 205 Cal.App.4th 969, 978.)

       We review the resolution of disputed facts under the substantial evidence standard,

and independently review whether the facts demonstrate prosecutorial good faith and due

diligence; no deference is given to the trial court's determination. (Herrera, supra, 49

Cal.4th at p. 623; People v. Cromer, supra, 24 Cal.4th at pp. 900-901.)

       In People v. Lopez (1998) 64 Cal.App.4th 1122, the court found the People had

exercised due diligence in trying to secure a witness's presence at trial despite not having

communicated with the witness more than one month before trial. (Id. at p. 1128.) The

witness, who had been beaten by her boyfriend of five years, was declared unavailable

after the prosecution established they met their burden of due diligence. (Id. at p. 1125.)

The court reasoned the prosecution had subpoenaed her in advance of trial, she testified

at the preliminary hearing, and the prosecution had "no reason to believe she would not

                                              7
cooperate" by testifying again at the trial. (Ibid.) The prosecution was unaware the

witness was not returning phone calls and when it found out, an investigator called her

residence, left a message, and went to her address that same day. (Ibid.) The People

sought and received an extension so they could try to locate the witness. (Id. at p. 1127.)

         Here, we conclude the People exercised due diligence in attempting to secure

Cox's presence at trial. She testified at the preliminary hearing and gave no indication

she was unwilling to appear at trial. As in Lopez, supra, 64 Cal.App.4th 1122, Cox was

subpoenaed for a date certain within the statutory period. The People spoke to Cox eight

days before trial and confirmed her address. Again, Cox gave no indication that she was

unwilling or unable to testify at trial. The People twice telephoned Cox on the day before

trial. The People did not send someone to Cox's address earlier because they had no basis

to think she would fail to appear. We point out Cunningham refused to waive time for

his trial to start, thus limiting what more the People could do to compel Cox's presence at

trial.

         Cunningham argues the People were on notice that at the preliminary hearing Cox

was uncooperative, leading the court to threaten her with contempt; therefore, the People

should have made more efforts to secure her presence at trial. But Cox ultimately

answered the questions and at no time indicated she might fail to appear at trial.

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 this important witness would flee,' to 'take adequate

preventative measures' to stop the witness from disappearing." (People v Wilson (2005)

                                              8
36 Cal.4th 309, 342.) The People are not required to take preventative measures to stop a

witness from disappearing unless there is knowledge of a substantial risk that the witness

would flee. (Id. at p. 342.) Further, an appellate court "will not reverse a trial court's

determination [of reasonable diligence] simply because the defendant can conceive of

some further step or avenue left unexplored by the prosecution" and "the defendant's

ability to suggest additional steps (usually, as here, with the benefit of hindsight) does not

automatically render the prosecution's efforts 'unreasonable.' [Citations.] The law

requires only reasonable efforts, not prescient perfection." (People v. McElroy (1989)

208 Cal.App.3d 1415, 1428, overruled on other grounds as stated in People v. Cromer,

supra, 24 Cal.4th at p. 905, fn. 3.)

       We conclude the court did not violate Cunningham's state and federal

constitutional rights by permitting Cox's preliminary hearing testimony to be read into the

record. In light of our resolution of this issue, we need not address Cunningham's

alternative contention that Cox's statements to the police were inadmissible hearsay.




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                                DISPOSITION

    The judgment is affirmed.




                                              O'ROURKE, J.

WE CONCUR:



          BENKE, Acting P. J.



                   NARES, J.




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