Filed 9/6/16 P. v. McGrane CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050379

         v.                                                            (Super. Ct. No. 13 HF1694)

RONALD DAVID MCGRANE,                                                  OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, Gary S.
Paer, Judge. Affirmed.
                   William J. Capriola, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne
G. McGinnis and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and
Respondent.


                                             *               *               *
              A jury convicted defendant Ronad David McGrane of elder abuse with a
true finding he personally inflicted great bodily injury on a person 70 years of age or
older and assault with a deadly weapon with a true finding he personally inflicted great
bodily injury. The trial court sentenced defendant to four years in prison.
              Defendant’s sole contention on appeal is that the court prejudicially erred in
finding the victim, Shirley Pazder, unavailable and admitted her preliminary hearing
testimony at trial. We disagree and affirm the judgment.
                                          FACTS
Pazder’s Preliminary Hearing Testimony
              At the preliminary hearing, then 73-year-old Pazder testified to the
following: Around 5:45 a.m. one Sunday, she was in her wheelchair inside a post office
building waiting for her bus. A man she had previously talked to came into the building
to retrieve his mail. He left and was getting into his car when a second man, who looked
angry, walked partway in and then back out. Pazder had seen the second man before,
both on the street collecting cans and in the bus pavilion.
              After the second man left, Pazder stood up and started preparing her
wheelchair for the bus. Without saying anything, a man came up behind her, hooked his
arm around her neck, and pulled her head back. She believed he was wearing something
slick. The man struck her with something in his left hand. Her lip was cut and she bled
“all over the place.” At that point, the man released her and left the building. She turned
around, but did not see him leave.
              Pazder called 911 and gave a statement to the responding officer. She
described the man as angry, and about the same height and build as the officer, with clean
clothes in the form of, “plain old pants and a T-shirt.”
              Pazder was transported to the hospital, where she received stitches. She did
not remember seeing any photographs and could not identify a man (defendant) officers
brought to the hospital as the person who had attacked her.

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              On cross-examination, Pazder testified she lived in a motor home and did
not associate with the homeless. When asked in court if she recognized defendant, she
said she did not.
Other Evidence
              Around 6:07 a.m., police officer Darrel Short1 arrived at the scene in
response to Pazder’s 911 call. He saw Pazder sitting on the floor holding her mouth, with
blood “coming down her hands . . . on her clothing and on the floor in front of her.”
Pazder “was very frantic” and still talking to the 911 dispatcher. Officer Darrel heard
Pazder telling the dispatcher her attacker was a clean shaven male Caucasian whom she
believed to be “in his 20’s wearing a blue sweat suit.” She indicated she had previously
seen the man at the bus depot pushing a bicycle.
              Officer Darrel shared the information with other officers conducting an area
search. Officer Michael Short arrived shortly after and talked to Pazder, who described
the man to him as a male Caucasian in his 30’s, “wearing a blue or gray sweat suit” with
short “buzz-cut” hair that “was growing out.”
              Officer Darrel began searching the surrounding area, trying to locate a
suspect matching the description given by Pazder. At approximately 6:55 a.m., he saw
defendant pushing a bicycle near a bus stop. Defendant appeared “to be in his
40’s . . . with short hair, wearing a gray sweatshirt, [and] black pants with stripes down
the sides.” Officer Darrel briefly lost sight of defendant but saw him again one minute
later sitting on a bench about one block away from the post office where he was already
talking to two police officers. Officer Darrel joined them and the three officers
questioned defendant.
              During the questioning, defendant acknowledged he had entered the post
office around 6:00 a.m. and saw a woman sitting by the front door. He first claimed he

       1  Because there are two police officers with the last name of “Short” involved in
this case, we shall refer to them by their first names.

                                             3
only checked the front and then left, but later admitted he went in a second time “almost
right afterward.”
              An officer pulled a wood chip from the bottom of defendant’s boot because
it appeared to match the wood from a shattered bench next to the post office. The same
officer believed he saw blood splatter on defendant’s boots. Officer Darrel booked the
woodchip and defendant’s boots into evidence. He also swabbed defendant for DNA and
checked defendant’s fingernails and boots. Another officer had defendant’s fingernails
clipped.
              Officer Michael reached defendant’s location a few hours later after
contacting several other potential suspects. Officer Michael observed defendant had
short hair, “like a buzz cut growing out” and “was wearing bluish gray track pants, bluish
gray sweater, [and] tan boots.” Defendant had a bicycle and bags with him. Upon going
through the bags, Officer Michael discovered “[a] corkscrew wine bottle opener,” which
he seized and booked into evidence along with defendant’s clothing, which appeared well
worn and dirty or filthy. He arrested defendant.
              A surveillance video showed a man entering and leaving the post office.
Soon afterwards, another man approached the post office and looked through a window
near the front. The second man appeared to be in his 30’s or 40’s wearing a dark gray or
blue hooded sweatshirt and pants. He entered the post office, left, then returned and went
inside carrying a pointed object in his hand. About 30 seconds later, the man exited and
looked as if he was putting something in his pocket.
              Officer Darrel went to the hospital where Pazder was being treated. He
showed her a six-pack photo lineup to see if she could identify the suspect. After he read
Pazder the photo lineup advisement form, she agreed to look at the photographs. When
they reached defendant’s photograph, Pazder paused and asked to set that one aside.
After they finished going through the remaining photographs, Pazder asked to see
defendant’s photograph again.

                                            4
              The parties stipulated Pazder suffered “a 15-centimeter severe complex
laceration . . . on her left upper lip and central lip” that “extended into her left cheek.”
The injury required “an extensive complex repair to [her] left upper lip and left cheek
laceration with flap reconstruction.” Pazder also had a superficial small laceration to the
side of her neck that did not require stitches.
              The Orange County Public Health Laboratory was unable to find any DNA
or biological material on the bottle opener, defendant’s boots, pants, or fingernail
clippings that were foreign to defendant. But the forensic scientist who performed the
tests testified certain people are not “good D.N.A. shedders” and the length and condition
of the contact may affect whether DNA can be detected. For example, if “clothing has
been worn for a while, then the person’s D.N.A. of the clothing could overwhelm that
area that was swabbed.”
                                        DISCUSSION
              Defendant contends the court prejudicially erred in admitting Pazder’s
preliminary hearing testimony at trial. We disagree.
1. Due Diligence Hearing
              The prosecution filed a motion to admit Pazder’s preliminary hearing
testimony on the basis she was unavailable. The court held a due diligence hearing at
which the following evidence was presented.
              Pazder appeared in court for a hearing on June 3, 2013 in response to a
subpoena mailed to 303 Broadway Street, No. 71, Laguna Beach. She appeared in court
again on June 18 for the preliminary hearing as ordered.
              After the court set a jury trial for August 19, the prosecution sent a
subpoena to Pazder at the Broadway address. But on the day set for trial, defense counsel
expressed concern about defendant’s mental competence. The court suspended criminal
proceedings and set a competency hearing. On August 28, the district attorney’s office



                                                  5
received a letter from Pazder, with the Broadway address as the return address, advising
she did not want to be located and was leaving the area.
                At the end of October, the court found defendant competent and scheduled
a jury trial for December 9. In mid-November, the prosecution assigned Nasario Solis to
locate Pazder. That month, Solis mailed a subpoena to Pazder at the Broadway address
but she never responded. Solis did not learn Pazder was homeless until the next month.
                On December 5, he drove to her last known address on Broadway and
discovered it was a private mailbox business. An employee there informed him that
although Pazder frequented the area, she had closed her account in mid-November and he
had not seen her since. Solis drove around the area for several hours looking for Pazder
but was unable to find her. He also spoke to homeless people in the area who said they
had not seen her in a while. Solis prepared a “be on the lookout” flier for Pazder and left
a copy of it.
                Solis then went to the Laguna Beach Police Department. He contacted
Officer Darrel, who told him he had not seen Pazder for at least a month. The victim
witness liaison also had no information regarding Pazder’s current whereabouts. Neither
did the liaison between the homeless and the Laguna Beach Police Department, who told
Solis he had not spoken with Pazder since sometime in November. The former
investigator believed Pazder had a daughter but he did not know where she could be
found. Solis left a copy of the flier he had prepared.
                Solis called the only phone number he had for Pazder but it was no longer
in service. A records check on Pazder revealed no additional information. She was not
in custody, had no vehicles registered in her name, and had no address listed with the
Department of Motor Vehicles other than the Broadway address. Nor did the local aid
services show she was receiving any services.
                On December 7, Solis walked around the main beach area of Laguna Beach
for several hours asking if anyone had seen Pazder. It was an area where many homeless

                                              6
frequented. Those he spoke with told him they had not seen her in a while and to
possibly check some of the other beaches.
               Two days later, on the date scheduled for trial, the prosecution filed an
amended complaint. Defendant waived time for jury trial and a pretrial hearing was set
for January 6, 2014. The trial was continued to March, and then May.
               Solis retired from the district attorney’s office on December 12 and was
rehired on January 6, 2014. During that time, Solis looked for Pazder a few times a week
by driving down to the main beach, around the streets, and along the Pacific Coast
Highway towards Dana Point and Newport Beach. Upon his rehiring, Solis continued
looking for Pazder.
               On February 26, the district attorney’s office gave Solis a subpoena to serve
Pazder. Solis performed a complete records check and also searched a private
investigative service Web site for “Shirley Pazder” and “Shirley Calhoun.” He located a
post office box in Springfield, Massachusetts, but personnel there informed him Pazder’s
most recent address was the one on Broadway.
               On March 7, Solis went to the Broadway address to see if Pazder had
reopened her mailbox but she had not. The employees suggested possibly searching
Newport Beach. Solis drove around various areas of Laguna Beach and talked to several
individuals, but they were unable to provide any information about Pazder’s
whereabouts.
               Three days later, Solis provided an updated flier to the Laguna Beach
Police Department and spoke to several officers. They told him Pazder was most likely
somewhere in Newport Beach near Fashion Island and had a daughter named Katrina
Calhoun.2 Solis conducted a records search for her and located an address in Northern



      2 Because Katrina Calhoun shares the same last name as one of the names under
which Solis had for Pazder, we shall refer to her by her first name.

                                              7
California. Although he called her phone number and left a message, she never called
back.
              On March 11, Solis went to the Newport Beach Police Department and left
fliers and subpoenas before going to a bus station near Fashion Island to look for Pazder.
He handed out fliers to the bus drivers. One bus driver thought she saw Pazder a few
weeks earlier with her wheelchair. Another person told Solis that Pazder frequented the
library. Solis went to the library and looked around before being asked to leave but did
not see Pazder. He also received an anonymous call Pazder might be at a bus stop in
Laguna Beach. Although he went to the location and drove around the area, he was
unable to locate her.
              In March and April, Solis went to another bus stop, handed out fliers to bus
drivers, and spoke to people in the area. He also made additional unsuccessful attempts
to contact Katrina.
              On April 14, Solis received a call from Virgina Leyva, who identified
herself as another of Pazder’s daughters. Leyva explained that Katrina had recently
undergone extensive surgery and was unable to return his calls. She told Solis her mother
knew he was looking for her but did not want to cooperate or the case to continue.
Nevertheless, she provided Solis with a phone number and an address. No one answered
the phone when Solis called and the address was to a private mailbox business. Solis
continued to call the new number and left a message but received no response.
              Three days later, a passenger on a bus called Solis and informed him Pazder
was on the bus, which was heading towards Long Beach. But the passenger called back
shortly after and said Pazder had gotten off the bus.
              On April 19, a bus driver called Solis that she was the one who had asked
the passenger to call him two days earlier. The bus driver informed Solis that Pazder
knew the district attorney’s office was looking for her but she did not want to cooperate.



                                             8
The bus driver also said Pazder would sometimes take a bus to San Clemente or to Long
Beach, “but off and on.”
              Early the next month, Solis went to the private mailbox in Newport Beach
where Pazder had rented a mailbox and provided a flier to the owner, who said he
recognized her but had not seen her in a couple of weeks. Solis looked around the area
for Pazder but could not locate her.
              On the date set for trial, May 14, 2014, the owner of the private mailbox
business called Solis, informing him Pazder was there. Solis went there but was told
Pazder had just walked over to the nearby supermarket. Solis went to the supermarket
but could not find her. The manager of the supermarket recognized Pazder as someone
who frequently went into the store, stole wine bottles, and became irate and
uncooperative when confronted. The manager told Solis he would call him the next time
she entered the store. That same day, Solis talked to several homeless people who said
they knew her and “had seen her off and on in the last couple weeks” but tried to stay
away from her. He looked for Pazder for about two hours.
              After hearing the evidence, the trial court ruled Pazder was unavailable and
that the prosecution had exercised due diligence in attempting to locate and subpoena her.
It noted “the case [was] somewhat unique in that most witnesses . . . have contacts [which
makes them] easier to find [whereas h]ere it’s obviously more difficult to locate a witness
that is homeless.” The court further observed the main issue in the case was the identity
of the assailant. “I think we can all agree that the alleged victim got assaulted. The real
question is who did it? Was it this defendant or maybe one of the other guys that was
stopped and questioned. There’s no physical evidence. There’s no D.N.A.”
2. Legal Principles
              “A criminal defendant has a state and federal constitutional right to
confront witnesses, but the right is not absolute. If a witness is unavailable at trial and
has given testimony at a previous court proceeding against the same defendant at which

                                              9
the defendant had the opportunity to cross-examine the witness, the previous testimony
may be admitted at trial. In a criminal case, the prosecution bears the burden of showing
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. [Citations.] [¶] ‘[T]he term “due diligence” is ‘incapable of a
mechanical definition,” but it “connotes persevering application, untiring efforts in good
earnest, efforts of a substantial character.”’ [Citation.] Relevant considerations include
the timeliness of the search, the importance of the witness’s testimony, and whether leads
were competently explored.” (People v. Sanchez (2016) 63 Cal.4th 411, 440.)
              In assessing the prosecution’s reasonable diligence in locating a missing
witness so as to use that witness’s preliminary hearing testimony, we conduct a “twofold
inquiry.” (People v. Cromer (2001) 24 Cal.4th 889, 900.) We first determine the
historical facts: “a detailed account of the prosecution’s failed efforts to locate the absent
witness.” (Ibid.) If those facts are in dispute, we deferentially review the trial court’s
factual findings. (Ibid.) Second, we determine whether these historical facts amount to
due diligence by the prosecution, which requires application of an objective,
constitutionally-based legal test to the historical facts. (Ibid.; see People v. Sanchez,
supra, 63 Cal.4th at p. 440 [“The reviewing court defers to the trial court’s determination
of the historical facts if supported by substantial evidence, but it reviews the trial court’s
ultimate finding of due diligence independently, not deferentially”].)
3. Defendant’s Contentions
              Defendant begins by asserting Pazder’s “testimony was the primary source
of identity evidence at trial” and “in some ways . . . the most important witness at trial for
the defense.” But he concedes Pazder testified at the preliminary hearing that she did not
recognize defendant at the hospital or at the preliminary hearing and “her description of
the clothes worn by the assailant did not match” those worn by defendant when he was



                                              10
detained. In his reply brief, defendant goes so far as to state “Pazder’s testimony was in
essence a statement that [defendant] was not the man who assaulted her.”
              Defendant contends, however, that because a police officer testified Pazder
had given him a description matching that of defendant, Pazder’s absence from trial
deprived him of the opportunity of having the jury assess Pazder’s credibility. But
defendant does not explain how having Pazder repeat her nonrecognition of him and
description of his clothing that did not match that given by the officers would have
somehow made her more believable at trial or how such testimony benefited the
prosecution. If anything, her preliminary hearing testimony assisted the defense more
than it helped the prosecution. Pazder may have been only percipient witness to the
attack, but her preliminary hearing testimony provided no useful information regarding
the identity of the assailant, which, as the trial court found, was the key issue in this case.
Her testimony was not thus so “‘critical’” or “‘vital’” to the prosecution’s case, such that
greater efforts than that made would have been required. (People v. Hovey (1988) 44
Cal.3d 543, 564.)
              In any event, defendant has not shown the trial court erred in concluding
the prosecution had exercised due diligence in attempting to locate Pazder.
              Defendant argues the prosecution waited too long before making any
attempt to contact Pazder after the preliminary hearing in June 2013 and then again after
receipt of Pazder’s August 2013 letter stating she did not wish to be located and was
leaving the area. But as the Attorney General points out, the criminal proceedings had
been “suspended from August 19, 2013 until October 31, 2013 because defense counsel
had declared a doubt as to [defendant’s] competency.” The district attorney’s office thus
had no reason to subpoena Pazder during this time period, regardless of whether it would
“miss[] several opportunities to locate her and serve her with a subpoena.” Had Pazder
been subpoenaed only to have the defendant deemed incompetent would have
unnecessarily wasted funds and resources. Defendant has cited no authority imposing

                                              11
such a requirement on the prosecution. Nor would it make sense to subpoena a witness
for a matter that has been indefinitely suspended.
              Defendant’s contention is similar to one made and rejected in People v.
Friend (2009) 47 Cal.4th 1 (Friend), analyzed by defendant. There the witness (Moody)
was a transient alcoholic who “testified at defendant’s first trial that defendant admitted
he committed the robbery murder.” (Id. at p. 65.) The trial court declared a mistrial on
the special-circumstance allegation but Moody could not be found for the retrial. The
defendant argued (1) “the prosecutor failed to exercise due diligence in maintaining
contact with Moody in the period from March 1990 (when Moody failed to respond to
the subpoena for the pretrial discovery hearing) through July 1991 (when the prosecution
first began to make concerted efforts to locate him)”; and (2) “the prosecutor should have
taken some steps ‘to prevent Moody from absenting himself’ in the period prior to
defendant’s second trial.” (Id. at p. 68.)
              As to the first argument, Friend concluded that waiting until July 1991
“was not unreasonable given that the second trial, which had been continued several
times, was scheduled to begin in September of 1991.” (Friend, supra, 47 Cal.4th at p.
69.) Nor was it unreasonable in this case for the prosecution to wait until defendant was
found competent to stand trial before making efforts to subpoena Pazder. And even
where trial has not been continued, courts have found due diligence when a search was
begun shortly before the trial. (People v. Linder (1971) 5 Cal.3d 342, 346 [reversing trial
court finding of no reasonable diligence where attempt to subpoena witness began the
day before trial]; People v. Smith (1971) 22 Cal.App.3d 25, 32 [reasonable diligence
found where effort to locate witness began the day before trial].)
              Regarding the defendant’s second claim, Friend noted the rule “‘[t]he
prosecution is not required “to keep ‘periodic tabs’ on every material witness in a
criminal case . . . .”’ [Citations.] We have also stated that when there is knowledge of ‘a
“substantial risk”’ that an ‘“important witness would flee,”’ the prosecutor is required to

                                             12
‘“take adequate preventative measures” to stop the witness from disappearing.’” (Friend,
supra, 47 Cal.4th at p. 68.) Friend concluded the record before it did not indicate “the
prosecutor had any knowledge of or reason to know of a substantial risk that Moody
would flee or otherwise disappear” despite his transient lifestyle. (Ibid.)
              Here, defendant has not shown Pazder to be an “important witness” in that
she did not identify defendant as the perpetrator, in contrast to Moody. She was not
critical to the prosecution’s case and instead bolstered the defense by pointing the finger
away from him. Further, by the time the district attorney’s office received Pazder’s
letter, the trial court had already suspended all criminal proceedings and ordered a
competency hearing. At that point, there was no proceeding for Pazder to be a witness in
and no need for the prosecution to search for her.
              And despite Pazder’s letter stating she was moving and did not want to be
located, the record before us reflects Solis and the district attorney’s office did not know
Pazder was homeless until December 2013. The belief was reasonable given Pazder’s
preliminary testimony she lived in a mobile home. It was also reasonable to assume that
if and when she moved, Solis would be able to locate her new address. To that end, Solis
was ultimately able to reach one of Pazder’s daughters and obtain a new phone number
and address for her, although those too proved unfruitful.
              Defendant asserts the prosecution knew she was homeless when they
received Pazder’s August 2013 letter. But he forfeited the claim by failing to support it
with any citation to the record. (Lonely Maiden Productions, LLC v. GoldenTree Asset
Management, LP (2011) 201 Cal.App.4th 368, 384.) Defendant points out that” [d]uring
the argument on the motion to admit . . . Pazder’s preliminary hearing testimony, defense
counsel informed the court that the original police reports indicated that the witness was
homeless.” Statements of counsel, however, are not evidence. (In re Zeth S. (2003) 31
Cal.4th 396, 414, fn. 7.)



                                             13
              Defendant acknowledges “Solis made numerous, sustained, unsuccessful,
and admittedly persistent attempts to locate . . . Pazder” from January to May 2014. But
he maintains that because she had been spotted here and there, lived in the community,
frequently rode buses, and regularly visited certain stores, the only reason the district
attorney was unable to locate her was “because it did not employ sufficient resources for
the task [and that a] certain amount of extra manpower and resources undoubtedly would
surely have gotten her served.” But “[i]t is speculative to believe that additional efforts
would have resulted in finding” Pazder and getting her to testify. (People v. Sanchez,
supra, 63 Cal.4th at p. 442.) Whatever the amount of effort that would be expended to
search for a person with ebola or a murder suspect is irrelevant. This is not such a case
and defendant has not persuaded us that Pazder’s testimony at trial was either critical or
vital to the prosecution’s case. (People v. Hovey, supra, 44 Cal.3d at p. 564.)
              “The prosecution must do what is reasonable under the circumstances, not
necessarily everything that can be suggested in hindsight.” (People v. Sanchez, supra, 63
Cal.4th at p. 442.) The fact that the prosecution could have done more does not mean
that its efforts were unreasonable. (People v. Valencia (2008) 43 Cal.4th 268, 293.) The
prosecution’s efforts here were reasonable as set forth in detail above and the trial court
did not err in admitting Pazder’s preliminary hearing testimony.
              Even if the prosecutor failed to exercise due diligence in locating the
victim, any error was harmless beyond a reasonable doubt. The prosecution’s case rested
on the testimony of five police officers, the owner of the store with the surveillance
video, and the technician who accessed the videotape, plus the videotape itself. That
evidence supported defendant’s conviction. Pazder’s preliminary hearing testimony
added little if any significance to the prosecution’s case. And as it was helpful to
defendant’s case, it could not have prejudiced him.




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                                  DISPOSITION
            The judgment is affirmed.




                                             THOMPSON, J.

WE CONCUR:



O’LEARY, P. J.



FYBEL, J.




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