Filed 3/11/14 P. v. Williams CA2/5
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,                                                          B249821

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. BA400718)
         v.

RANDEE WILLIAMS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Craig E.
Veals, Judge. Affirmed.
         Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Yun K. Lee and Corey J. Robins,
Deputy Attorneys General, for Plaintiff and Respondent.


                                        _________________________
       Defendant and appellant Randee Williams was convicted by jury of four felonies:
(1) unlawful discharge of a firearm with gross negligence in count 1 (Pen. Code, § 246.3,
subd. (a));1 (2) possession of a firearm by a felon in count 2 (§ 29800, subd. (a)(1)); (3)
carjacking in count 3 (§ 215, subd. (a)), with the additional finding defendant used a
deadly or dangerous weapon (§ 12022, subd. (b)(2)); and (4) assault with a deadly
weapon in count 5 (§ 245, subd. (a)(1)).2
       In a separate proceeding, the trial court found defendant suffered a prior serious or
violent felony conviction (§ 667, subd. (a)(1)) and a prior conviction under the three
strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). The court sentenced
defendant to 29 years 4 months in state prison.
       In this timely appeal, defendant contends the trial court: (1) violated his right to
confront witnesses by admitting the preliminary hearing testimony of the alleged
carjacking victim in count 3; and (2) abused its discretion and violated his right to due
process of law by denying his motion to sever the charges in counts 3 and 4 from the
offenses charged in counts 1, 2, and 5. We affirm.


                                          FACTS3


Count 4—Assault with a Deadly Weapon on Paris Covington


       Defendant had a casual romantic relationship with Covington on July 2, 2012.
Covington lives in Van Nuys with her mother, who owns a black BMW. Covington was
home that morning with her friend, Latrelle, and Latrelle’s baby. Defendant arrived at


       1   All statutory references are to the Penal Code unless otherwise stated.

       2 The jury found not true the allegation in count 3 that defendant used a firearm in
the commission of the carjacking and found defendant not guilty of a separate violation
of section 29800, subdivision (a)(1) in count 4.

       3   For clarity, we do not address the charges in chronological or numerical order.


                                              2
Covington’s house at around 8:00 a.m. After ongoing bickering between Covington,
defendant, and Latrelle, Covington told defendant to leave and threatened to call the
police, but defendant stayed and the arguing continued. Covington eventually took
refuge in a bedroom, but defendant broke in through the locked door and struck
Covington, who jumped out of the bedroom window.
       Covington called 911 as she ran down the driveway, providing her address to the
operator and identifying the car driven by defendant as a Volkswagen (the same type of
car that had been carjacked by defendant from Sarai H. on June 24, 2012, as charged in
count 3). Covington was struck and knocked to the ground by the Volkswagen as she ran
down the street, causing injuries to her arm, hip, and pelvis area.4
       Covington ran to the home of her neighbor, Steve Macauley, who had been
watching the incident through a window in his home and observed the Volkswagen
chasing after Covington. Macauley saw Covington go down and believed she had been
hit by the car, although he did not see actual contact. Defendant turned the car around
and drove off in the opposite direction. Covington was crying and screaming that
defendant hit her with a car when she arrived at Macauley’s house. She was taken to the
hospital by ambulance. Covington told the police and the 911 operator that defendant hit
her with the car.


Counts 1 and 2—Unlawful Discharge of a Firearm and Felon in Possession of a
Firearm

       Defendant and Covington went to the home of Sylvester Williams, defendant’s
grandfather, on June 2, 2012. Defendant and the grandfather frequently argued, including
that night. The grandfather told Officer Edgar Muro that as defendant and Covington
were leaving the residence, Covington asked why defendant did not find another place to



       4 Covington testified at trial that she fell without being struck by the Volkswagen.
The jury’s verdict reflects its rejection of her recantation of her statements to the police
and her call to 911.


                                              3
live.5 Defendant has a short temper and became upset, pulled out a handgun and fired
approximately six shots into the air. Defendant and Covington left in a black BMW, the
type of car owned by Covington’s mother. Officer Jose Lara responded to the call with
Officer Muro and was directed by the grandfather to a location in front of the residence,
where he found six spent casings on the street.6
       Defendant stipulated he had suffered prior felony convictions for purposes of the
felon with a firearm counts.


Count 5—Carjacking of Sarai H.7


       Sarai has a six-month-old child fathered by defendant. On June 25, 2012, Sarai
told Officer Timothy Hope that on the evening of June 24, she met with defendant, they
went to a store, and then returned to her apartment. Defendant asked if he could take her
car, which she refused because she needed it. Defendant pulled out a gun and waved it
around while screaming at her. Sarai was scared for her life and that of her baby, so she
said, “Take what you want. Take the car.” Defendant took the keys to her Volkswagen
and left. She waited eight hours to call the police out of fear for herself and her baby.8



       5 Covington admitted being with defendant at his grandfather’s house and
witnessing their argument, but she was uncertain of the date and did not recall any
shooting.

       6  The grandfather recanted his statements to the officers in his trial testimony. He
testified at trial that he was under the influence of alcohol that night and had merely heard
shots as defendant was leaving. He denied seeing defendant with a gun or firing a gun,
and he further denied directing the officers to the location where bullet casings were
recovered.

       7As discussed more fully below, Sarai did not testify at trial, but her prior
testimony from the preliminary hearing was admitted into evidence.

       8Sarai also recanted her statements to the police in her preliminary hearing
testimony. She did not see a gun, according to her testimony, and the police must have


                                              4
She did not get the car back until July 3, one day after the assault with a deadly weapon
on Covington.


Defense


       Defendant testified in his own behalf. He denied firing shots at his grandfather’s
house, although he did hear shots as he was leaving the area with Covington. Sarai gave
him permission to take her car so he could give his cousin a ride home. He returned the
car to her the next day, but after that, he borrowed it occasionally and did have it on July
2 at Covington’s house. Defendant agreed that he did argue with Covington, break the
door, and slap her, and that she jumped out the bedroom window. He chased her down
the sidewalk and she fell. He then got into the Volkswagen and left, but he did not chase
her in the car. No gun was ever recovered from him. Defendant admitted suffering prior
felony convictions for purposes of the felon in possession of a firearm charge.


                                       DISCUSSION
                                               I


       Defendant argues the trial court erred in permitting the prosecution at trial to
introduce the preliminary hearing testimony of Sarai. Defendant contends the
prosecution did not exercise due diligence in obtaining Sarai’s presence at trial, as
evidenced by the failure to begin looking for her until six working days prior to the
scheduled start of trial and not making any further effort to locate her in the ten days
before her prior recorded testimony was read to the jury. Defendant also faults the
prosecution’s failure to utilize a treaty with Spain to obtain Sarai’s presence at trial.




misunderstood what she said due to a language problem. She allowed defendant to take
her car, but he did not return it as expected.


                                               5
Defendant asserts that introduction of her preliminary hearing testimony resulted in a
violation of the Sixth Amendment right to confront witnesses for the prosecution.


Constitutional Principles of Confrontation of Witnesses


       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. 1, § 15.)
“Although important, the constitutional right of confrontation is not absolute. (Chambers
v. Mississippi [(1973)] 410 U.S. [284,] 295; [People v.] Cromer [(2001)] 24 Cal.4th
[889,] 897 [(Cromer)].)” (People v. Herrera (2010) 49 Cal.4th 613, 621 (Herrera).)
There is a traditional exception to the requirement of confrontation where it is shown the
witness is unavailable and was subject to cross-examination in a previous judicial
proceedings against the same defendant. (Ibid.; Cromer, supra, at p. 897.) “Pursuant to
this exception, the preliminary hearing testimony of an unavailable witness may be
admitted at trial without violating a defendant’s confrontation right. (People v. Seijas
(2005) 36 Cal.4th 291, 303.)” (Herrera, supra, at p. 621.)
       Evidence Code section 1291, subdivision (a)(2), codifies the constitutional
principle by providing that such former testimony “is not made inadmissible by the
hearsay rule if ‘the declarant is unavailable as a witness,’ and ‘[t]he 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.’” (Herrera,
supra, 49 Cal.4th at p. 621.) “A witness who is absent from a trial is not ‘unavailable’ in
the constitutional sense unless the prosecution has made a ‘good faith effort’ to obtain the
witness’s presence at the trial. (Barber v. Page (1968) 390 U.S. 719, 724-725 (Barber).)”
(Id. at p. 622.)




                                             6
Standard of Review


       Our Supreme Court has held that “appellate courts should independently review a
trial court’s determination that the prosecution’s failed efforts to locate an absent witness
are sufficient to justify an exception to the defendant’s constitutionally guaranteed right
of confrontation at trial.” (Cromer, supra, 24 Cal.4th at p. 901.) “As indicated, to
establish unavailability, the prosecution must show that its efforts to locate and produce a
witness for trial were reasonable under the circumstances presented. (Ohio v. Roberts
[(1980)] 448 U.S. [56,] 74[, overruled on other grounds in Crawford v. Washington
(2004) 541 U.S. 36, 67]; People v. Smith (2003) 30 Cal.4th 581, 609 (Smith).) We
review the trial court’s resolution of disputed factual issues under the deferential
substantial evidence standard (Cromer, supra, 24 Cal.4th at p. 902), and independently
review whether the facts demonstrate prosecutorial good faith and due diligence (id. at
pp. 902-903).” (Herrera, supra, 49 Cal.4th at p. 623.)


Background


       Sarai testified at defendant’s preliminary hearing on September 20, 2012.
Defendant announced ready for trial on December 14, and again indicated trial readiness
on December 24. Trial proceedings commenced on December 28, and the first witness
testified on January 4, 2013. The hearing on the prosecutor’s request to admit Sarai’s
preliminary hearing testimony was held midtrial on January 8, 2013.
       District Attorney Investigator Rochelle Plue testified that she was assigned to
locate Sarai and serve a subpoena on her. She first reviewed records in criminal and
public record data bases, including national, state, and local records. She checked for
arrest history, warrants, probation and parole records, weapon ownership, restraining
orders, and other registrant records including the Department of Motor Vehicles. She
also reviewed utility and credit records, all of which indicated an address in West Los
Angeles.


                                              7
       On December 18, 2012, Investigator Plue went to the address for the first time to
serve a subpoena for the December 24 trial date. There was no answer at the door of the
apartment. She spoke to other occupants of a nearby apartment who said they recognized
the witness and thought she lived there. They said there was no on-site apartment
manager.
       Investigator Plue returned to the apartment on December 20 and again on
December 27. There was no answer at the door. She attempted to call Sarai’s telephone
number, but it went straight to voicemail.
       On December 28, Investigator Plue went to the apartment for the last time. She
spoke to a woman in the apartment who said she was an exchange student. The woman
said Sarai did live in the apartment but was currently in Spain.9 It appeared the woman
and Sarai were doing a residence exchange. The woman did not know when Sarai was
returning, but the woman was leaving in approximately one month and expected Sarai
would return after that.
       Investigator Plue contacted the Department of Homeland Security and the
Division of Customs and Border Patrol. Agency records indicated Sarai traveled from
O’Hare Airport to Madrid on December 8, 2012,10 and there was no indication that she
had returned. Records indicated that Sarai was born in Spain.
       Defense counsel argued the prosecution was on notice from the preliminary
hearing that Sarai was recalcitrant and hostile but waited until six days before trial to
secure her attendance and made no effort to check within the last ten days to see if she
had returned to the country. The prosecution had not carried its burden of demonstrating




       9  Based on a defense objection that the woman’s statement that Sarai was in Spain
was hearsay, the trial court admitted the statement, but not for the truth of the matter
asserted.

       10 Investigator Plue at first testified that Sarai had left for Spain in August 2012,
but upon reviewing the records, corrected her testimony to reflect Sarai departed on
December 8, 2012.


                                              8
the necessary untiring efforts in good earnest required to establish unavailability under
Evidence Code section 240.
       The prosecutor argued there is no obligation to exhaust every potential avenue for
due diligence. He contended the prosecution made a reasonable effort by verifying a
valid address, but Sarai was not there. After the investigator spoke with the exchange
student, she checked records from Homeland Security, which show Sarai left the country
on December 8 and there was no return date.
       The trial court noted that Sarai testified at the preliminary hearing, largely
recanting her statements to the police, and she was impeached with her prior statements.
The officer who heard Sarai’s prior statements would testify at trial and be subject to
cross-examination. Defense counsel argued the prosecution’s efforts took place during
the holiday season and the prosecution was aware defendant would not waive the
statutory time for trial. He asserted that Sarai could have been served with a subpoena
had the prosecution started weeks sooner.
       The trial court stated that all indications are that Sarai is in another country and
unavailable. Although the court felt the issue was close, it ruled the prosecution had
shown a substantial effort sufficient to establish due diligence.


Analysis


       There is no dispute Sarai testified at defendant’s preliminary hearing and was
subject to cross-examination. The only issue is whether she was unavailable as defined
in the Confrontation Clause jurisprudence. Our independent review of the facts as
determined by the trial court leads to the conclusion the prosecution satisfied its burden
of establishing due diligence in attempting to secure Sarai’s presence at trial.
       The record establishes that Sarai left the country before the parties announced
ready for trial, and weeks before her testimony would have been presented. The
prosecution utilized all the state and federal data available and concluded she lived in an
apartment which an investigator visited four times shortly before trial. The evidence


                                              9
unmistakably shows that Sarai was not at her apartment and most likely was out of the
country. There was no evidence of her current whereabouts. These facts are sufficient to
establish that Sarai was unavailable, could not be located, the prosecution used due
diligence in attempting to secure her attendance, and introduction of her preliminary
hearing testimony did not violate the state or federal constitutional right to confront
witnesses.
       Defendant contends that because Sarai recanted her incriminatory statements
against defendant in her testimony at the preliminary hearing, the prosecution was on
notice that she might make herself unavailable for trial and earlier efforts to subpoena her
were required. Contrary to defendant’s argument, the prosecution had no apparent reason
to suspect Sarai might make herself unavailable at trial. If anything, the prosecution
could reasonably assume Sarai would be available for trial so she could try again to
undermine the prosecution, just as she had done at the preliminary hearing. Sarai had
communicated with authorities at the time of the carjacking, and although she recanted
the incriminating portion of her statements at the preliminary hearing, she did appear and
testify. The prosecution is not obligated, under normal circumstances, to make periodic
check of every material witness. (People v. Fuiava (2012) 53 Cal.4th 622, 676-677
(Fuiava); Herrera, supra, 49 Cal.4th at p. 630; People v. Wilson (2005) 36 Cal.4th 309,
342 (Wilson).)
       Defendant also argues that the prosecution did not attempt to subpoena Sarai until
December 18, 2012, which was too close to the date of trial. We disagree. Certainly “the
timing and competence of the prosecution’s efforts to locate the absent witness within the
jurisdiction are important factors in measuring good faith and due diligence [citations]
. . . .” (Herrera, supra, 49 Cal.4th at pp. 630-631; Wilson, supra, 36 Cal.4th at pp. 341-
342; Cromer, supra, 24 Cal.4th at pp. 903-904.) Records indicate Sarai left for Spain on
December 8, 2012, six days before defendant announced ready for trial on December 14,
weeks before the last day to bring defendant to trial under section 1382. (Fuiava, supra,
53 Cal.4th at pp. 676-677 [search for witness reasonably commenced two weeks before
the start of trial].) Even had the prosecution started its attempt to subpoena Sarai on the


                                             10
first day defendant announced ready for trial, she would have already been gone, and the
efforts would have been futile. (Herrera, supra, at pp. 630-631 [where prosecution
began its search for a witness four or five days before trial, and witness had been
deported months earlier, any prosecution efforts would have been futile].)
       Defendant argues the prosecution did not go back to Sarai’s apartment to see if she
had returned between the time of Investigator Plue’s last visit on December 28, 2012, and
the investigator’s testimony at the hearing to establish due diligence on January 8, 2013.
Investigator Plue testified the federal records did not indicate Sarai had returned to the
country, and the trial court reasonably concluded she had not. “‘That additional efforts
might have been made or other lines of inquiry pursued does not affect this conclusion.
[Citation.] It is enough that the People used reasonable efforts to locate the witness.’
(People v. Cummings (1993) 4 Cal.4th 1233, 1298.)” (Wilson, supra, 36 Cal.4th at p.
342; see also Hardy v. Cross (2011) ___ U.S. ___ [132 S.Ct. 490, 495, 182 L.Ed.2d 224]
[“when a witness disappears before trial, 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”].)
       Defendant contends, for the first time on appeal, that the prosecution made no
attempt to determine whether Sarai was subject to compulsory attendance through the
Treaty on Mutual Assistance in Criminal Matters between the United States of America
and the Kingdom of Spain. This contention is forfeited, as it was not raised in the trial
court, and the parties therefore did not litigate the applicability of the treaty. (See Perez
v. Grajales (2008) 169 Cal.App.4th 580, 591-592 [reviewing courts ordinarily will not
consider claims made for the first time on appeal, and such claims “are generally deemed
forfeited”].) The suggestion that invoking the treaty would have secured Sarai’s
attendance in a timely fashion is entirely speculative, because as argued by defense
counsel at the hearing on due diligence, the trial court had no evidence Sarai was actually
in Spain at that time.




                                              11
                                                II


          Defendant’s second and final contention is that the trial court erred in denying his
motion to sever counts 3 (carjacking) and 4 (possession of a firearm by a felon) from
counts 1, 2, and 5. Defendant concedes joinder of the five counts was permissible under
section 954, which provides in part that “[an] accusatory pleading may charge two or
more different offenses connected together in their commission, or different statements of
the same offense or two or more different offenses of the same class of crimes or
offenses, under separate counts, and if two or more accusatory pleadings are filed in such
cases in the same court, the court may order them to be consolidated.” Severance was
required, defendant contends, because the carjacking count was weak compared to the
others but carried a severe penalty, there was insignificant cross-admissibility of
evidence, the jury was not properly admonished that one count could not be used to
convict on another. The result of the trial court’s ruling was a trial that was grossly
unfair.
          Defendant, representing himself, made a motion to sever when his case was
pending before Judge James Brandlin. The Attorney General correctly pointed out in the
Respondent’s Brief that although defendant repeatedly raised the issue of joinder during
the trial, the record on appeal did not include a reporter’s transcript of defendant’s
original motion before Judge Brandlin, and the contention should therefore summarily be
rejected. Counsel for defendant subsequently filed a motion to augment the record with
the transcript of the hearing held by Judge Brandlin. We granted defendant’s motion to
augment, and the record is therefore complete for review of the contention on the merits.


Standard of Review


          “When, as here, the statutory requirements for joinder are met, a defendant must
make a clear showing of prejudice to establish that the trial court abused its discretion in
denying the defendant’s severance motion. (People v. Marshall (1997) 15 Cal.4th 1, 27;


                                               12
People v. Price (1991) 1 Cal.4th 324, 388.)” (People v. Mendoza (2000) 24 Cal.4th 130,
160-161; see also People v. Soper (2009) 45 Cal.4th 759, 773 (Soper).) “We review a
trial court’s denial of a severance motion for abuse of discretion based on the facts as
they appeared when the court ruled on the motion. (People v. Hardy (1992) 2 Cal.4th 86,
167.) If we conclude the trial court abused its discretion, reversal is required only if it is
reasonably probable that the defendant would have obtained a more favorable result at a
separate trial. (People v. Coffman and Marlow, [(2004)] 34 Cal.4th [1,] 41; People v.
Keenan (1988) 46 Cal.3d 478, 503.)” (People v. Lewis (2008) 43 Cal.4th 415, 452.)
“Even if the ruling was correct when made, we must reverse if defendant shows that
joinder actually resulted in ‘gross unfairness,’ amounting to a denial of due process.
(People v. Johnson (1988) 47 Cal.3d 576, 590.)” (People v. Arias (1996) 13 Cal.4th 92,
127.)


Analysis


        Defendant has not shown that the trial court abused its discretion in denying
severance of counts 3 and 4 from the remainder of the charges, or that the resulting trial
was unfair. There is a preference for joint trials, which avoids the expense of two or
more separate trials, and that preference has “special force in the context of a motion to
sever properly joined charges.” (Soper, supra, 45 Cal.4th at p. 772.) Defendant concedes
that joinder of all five counts was proper, and that none of the charged offenses are
particularly inflammatory or inherently prejudicial. Although cross-admissibility of
evidence is not required where cases are properly joined (§ 954.1 [“evidence concerning
one offense or offenses need not be admissible as to the other offense or offenses before
the jointly charged offenses may be tried together before the same trier of fact”]), the use
of the Volkswagen carjacked from Sarai to commit the assault with a deadly weapon on
Covington provides a rational ground for trying the various counts in one proceeding.
We do not view the evidence supporting the counts as significantly different in strength.




                                              13
Each of the complaining witnesses recanted their earlier statements incriminating
defendant, and the convictions were based on impeaching evidence.
       Not only has defendant failed to show an abuse of discretion in denial of
severance, the record contains no hint of resulting gross unfairness in the trial. In
response to a jury question, the trial court advised the jurors that it “must decide each
count separately. A specific finding on one count does not dictate a similar finding on
any of the others.” The jury followed this instruction, as shown by the not guilty verdict
on the felon in possession of a firearm charge in count 4 and the finding defendant did
not use a firearm in the commission of the carjacking in count 3. These verdicts are
sufficient proof the trial was not grossly unfair.


                                       DISPOSITION


       The judgment is affirmed.




              KRIEGLER, J.



We concur:



              MOSK, Acting P. J.



              MINK, J.*



*      Retired judge of the Los Angeles County Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.


                                              14
