Filed 7/15/16 P. v. Gaines CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A 136979
v.
ERIC GAINES ,                                                        (Alameda County
                                                                     Super. Ct. No. 167692)
         Defendant and Appellant.


         A jury convicted defendant Eric Gaines of one count of murder (Pen. Code,1
§ 187, subd.(a)) and two counts of being a felon in possession of a firearm (former
§ 12021, subd. (a)(1)). The jury also found defendant personally used a firearm, causing
great bodily injury or death (§§ 12022.53, subd. (d), 12022.7, subd. (a).) The jury,
however, acquitted defendant of a second murder count and special circumstances
allegation (§§ 187, subd. (a); 190.2, subd. (a)(3)), related firearm possession count
(former § 12021, subd. (a)(1)), and enhancement (§ 12022.53, subd. (d)). The trial court
sentenced defendant to a determinate term of two years and eight months for the felon in
possession counts. An indeterminate term of 75 years to life, consisting of 25 years to
life on the murder count, doubled pursuant to section 1170.12, subdivision, (c)(1), plus a
consecutive 25 years to life term was imposed. On appeal, defendant contends reversal is
required due to evidentiary and instructional errors, as well as prosecutorial misconduct.
We affirm.


1
         All further undesignated statutory references are to the Penal Code.
                               I. EVIDENCE AT TRIAL
A.     Murders of Warren Ingram and Thomas Cousey
       1.     Testimony of Portia Phifer
       In April 2009, Portia Phifer, lived with her cousin Thomas Cousey in the 1700
block of 84th Avenue in East Oakland. Phifer and Cousey had grown up in this general
area, along with Warren Ingram, Deandrey Moore, J.C. “Big Ju” Foster, and Robert
Green. Defendant had not grown up with the group, but he and Cousey were best friends.
On the evening of April 6, 2009, Cousey introduced Phifer to defendant, who went by the
name “E.” At the time, Moore, Cousey, Ingram, Turner, and defendant “were on 84th
chilling, drinking[,] getting high, talking about old times.” Phifer and Moore’s girlfriend,
Miracle Turner, were also sitting in a car, “doing the same thing.” At some point,
defendant left. After some more drinking, Ingram left in his car. When Ingram returned,
he was upset with Moore and “cussing [him] out.” Ingram got back in the car with
Moore, and Cousey joined them. Phifer told Cousey not to leave, but he left saying he
would “be right back.”
       About 10 or 15 minutes later, the car returned with Cousey driving. Moore was
not in the car; Ingram was “laid out in the backseat.” Cousey jumped onto the hood of
the car, screaming for Phifer and saying, “He hit. He hit. He hit.” Phifer and Turner ran
to the car, and Phifer jumped in the driver’s seat. As Phifer drove to the hospital, Cousey
turned around and hit Ingram to wake him up. When Cousey turned back around, he
accidentally “slammed the gear out of drive into park” and the car stalled. Phifer got out
and flagged down cars until an ambulance arrived and took Ingram away. The police
came, put Phifer in a police car, and took her to “the homicide room.” Cousey was also
taken there. After Cousey and Phifer were released by police, they walked home because
Cousey did not want to call anyone for a ride.2



2
        Phifer acknowledged that she did not want to testify in this case. She had been
threatened. She said, “The word was already sent out don’t come to court.” She was told
that if she came to court, she could no longer go to her grandmother’s house on 84th.
       When Cousey and Phifer returned to 84th Avenue, they set up a memorial for
Ingram. Cousey was on the telephone talking to Moore when Phifer heard “a lot of
shots” and “took off running.” When the shots stopped, Phifer retuned to the area and
saw Cousey “laying on the ground” dead. Phifer did not see who shot him.
       2.      Testimony of Deandrey Moore
       Deandrey Moore grew up with Cousey in the 84th Avenue neighborhood. Moore
met Ingram around 2001 and they hung out “every now and then.” In April 2009, Moore
was “on the run,” “[a]bscounding parole.” He had three felony convictions that were
related to cocaine sales.
       Due to Moore’s incarceration, the night of April 6, 2009 was the first time Moore
had gotten a chance to hang out with Cousey in a while. Moore denied that he knew
defendant. Moore had heard of defendant and knew that his nickname was “Little E.”
Moore claimed he had never seen defendant before coming to court to testify in this case.
       The night that Ingram was killed, Moore went to the area of 84th and Plymouth
around 8:00 or 9:00 p.m. Ingram flagged him down and Moore pulled over. Moore
smoked and “chilled” with Ingram and another person for “a minute.” The other person
left and Moore and Ingram continued smoking. About 5 or 10 minutes later, Cousey
joined them.
       Moore testified he did not remember who the other person was, but acknowledged
that he told police it was “Little E or Eric.” Moore did not know why he said the other
person was defendant. He thought he did it out of “fear” because people were calling
him and saying that he (Moore) had killed Cousey. Moore said he was in Hayward when
Cousey was killed.
       Moore explained that he left the area around 11:30 p.m. on April 6 because he saw
a police car. Moore denied he was on Plymouth and 84th at 1:00 a.m. on April 7. He

Phifer understood that statement to mean she “was going to be dead.” She did not know
who made the threats. She understood that the snitch label meant “snitches get stitches”
and that a person would be killed if they told on someone. This was the reason why
Phifer did not want to cooperate with the police.
also denied that he saw any guns that night. At some point, Ingram had left; Moore was
not there when Ingram returned. Moore denied that Ingram asked him to go get his
(Ingram’s) gun when he returned. He further denied telling Ingram that Little E took the
gun. Moore denied that he got in a car with Ingram and rode from 84th and Plymouth to
85th where the mini-park was located. In fact, Moore denied going anywhere with
Cousey and Ingram. Moore said he was not in the mini park when Ingram was killed and
he did not see defendant. Moore repeated that he was not in the mini-park and, for that
reason, denied that he 1) heard any shots there, 2) saw anyone shooting there, 3) saw a
Mercedes parked in front of the mini park, 4) saw a van in front of the Mercedes, and 4)
helped Cousey put Ingram’s body in a car. Rather, Moore claimed he was in Hayward at
the Crown Lodge when Ingram was killed. However, he admitted he told police that he
was in the area when Ingram was shot.
      Moore acknowledged that he picked defendant’s photograph from a lineup and
told police that he was the person who shot Ingram. Moore, however, said that he had
never seen defendant before he looked at the photographic lineup. According to Moore,
it was just a random pick because he was not in his “right state of mind” and “went in a
panic mode.” Moore had panicked because he had received telephone calls saying that
he told Cousey to come to the corner where he was murdered. Moore said that Cousey
called him on Turner’s phone, but they did not get a chance to have a conversation. The
only thing Cousey said was, “Shit, it’s crazy, man,” and, according to Moore, “that’s
when all hell broke loose.” Moore heard “some gunshots in the background” and then
the phone went dead. Moore called back and a woman said Cousey was dead.
      Moore admitted that during an interview with police on June 4, 2009, he said, “I
sat up here and snitched, and I’m not getting out of custody.” Moore claimed he was not
worried about being labeled a snitch. He said he lied to police because he was concerned
about a parole violation and what was being said about him on the street. Moore said he
lied when he told police that defendant killed Ingram. Moore also claimed he lied when
he said that Ingram and defendant each had a gun. Moore said he lied when he told
police that he would have shot defendant if he had had a gun. He further denied he told
police that he helped put Ingram in the car. But, he admitted he told police he ran when
he heard defendant shoot Ingram. A compact disc of Moore’s June 4, 2009 interview
with police was played for the jury as a prior inconsistent statement.3 Moore said that the
facts he related to police about the Ingram crime scene, which were consistent with the
physical evidence, were fabricated to make his story sound good. For example, Moore
told police that defendant used a .357 revolver to shoot Ingram and that defendant had
retrieved it from the front of a van’s tire. Moore said the first fact was a guess and the
second was made up “to make it sound good.”
       Moore denied that, around 2:00 a.m. on April 8, 2009, he went to J.C., “Big Ju,”
Foster’s house and told him Ingram had been shot or anything else about the incident.
Moore also denied he called Ingram’s family after the shooting and told them what
happened.
       On cross-examination, Moore testified that at some point on the morning of
April 7, 2009, Ingram was upset that he could not find his gun and got “pissed off” at
Moore and Cousey. Ingram got in Moore’s face, and Moore, trying to maintain his
reputation, told Ingram to “hold up” and to not come at him like that. Moore denied that
Ingram made him and Cousey get in his car to go look for the missing gun. Moore
further denied that Ingram got in his face again about the gun and that he responded to
that disrespect by shooting Ingram. On redirect examination, Moore denied that he killed
Ingram or Cousey.
       3.     Testimony of J.C. Foster
       J.C. Foster was unavailable as a witness and his preliminary hearing testimony
was read into the record. Foster had lived at 84th and Olive in East Oakland. Over time,
Foster became close to Moore, who also lived in the neighborhood. Moore was also
called “D-Mo” and “Drey.” Foster had known Moore over 15 years and they were “[r]eal
close.” Foster was about 10 years older than Moore. Moore was like a little brother to
Foster, and Moore viewed Foster as an older brother. Foster’s relationship with Cousey


3
       We have listened to the compact disc recording.
was similar to the one he had with Moore. Foster had also known Phifer from the
neighborhood for about 15 years and Ingram for about 10 years. Foster had seen Cousey,
Moore and Ingram hanging out together. Foster knew defendant as “E.” He had known
defendant for over five years. Defendant was from a different neighborhood, and Foster
only knew him enough to exchange pleasantries or share a smoke or a drink. It would
also not have been unusual for Cousey, Ingram or Moore to have a drink or cigarette with
defendant.
      Foster believed he first heard about Ingram’s death from Moore who said, “[M]an,
we lost another one, man. He gone, man. It’s over, man. I got to talk to you, you
know.” At the time, Foster was still grieving the death of his younger brother Myron,
who was killed a year or two before Ingram. Moore told Foster he was present when
Ingram was killed. Foster believed Moore said Cousey was also present. Moore told
Foster that Ingram was killed over a gun. Moore said Ingram was upset because a gun
was stolen. Moore told Foster that “E,” killed Ingram, but Foster claimed he did not
know which “E” Moore was talking about. Foster denied he picked defendant out of a
photographic lineup when he talked with police in August 2009. Foster claimed he was
never shown defendant’s picture. However, when shown the photographic lineup, Foster
said he had identified the person in position number 5 as “E,” and this person was the one
Moore said shot and killed Ingram. Excerpts from the video recording of Foster’s August
2, 2009 interview with Sergeants Rachel Van Sloten and Tony Jones were played for the
jury.4 According to Foster, Moore told him during telephone phone conversation that
“E” had killed Ingram with a revolver.
      4.     Testimony of Anthony Scott
      In April 2009, Anthony Scott lived in Oakland, but at the time of trial he was
living in Georgia. Scott did not know Moore, Phifer, Cousey, Foster, or anyone
associated with this case. Scott did not know defendant personally, but had seen him




4
      We have reviewed the recorded excerpts included in the record on appeal.
once or twice before April 7 and identified him in court. He had known defendant by his
nickname, which he could not recall at trial.
       In April 2009, Scott had been driving a burgundy Mercedes. In the early morning
hours of April 7, Scott had been drinking and planned to meet up with a woman in the
mini-park on 85th and Plymouth. While he was waiting for the woman, Scott got out of
the Mercedes to use the bathroom. He noticed some people “scattered around” the park.
Scott claimed he did not remember anything about that morning after he used the
bathroom. He left the park on foot but was too drunk to remember why he did so. He did
recall that he dropped two cell phones in the park.
       Scott called the police the next day to retrieve the Mercedes he left in the mini-
park. He was interviewed by Oakland Police officers, including Sergeant Rachel Van
Sloten. Scott was also interviewed by police on July 30, 2009. In 2011, Scott was in
custody in Georgia on a driving under the influence offense. At some point, Scott
learned that Oakland Police had been inquiring about him. So, Scott called Sergeant Van
Sloten to find out why she was looking for him. Van Sloten and another officer traveled
to Georgia to talk with Scott on September 1. Scott claimed he did not recall discussing
the specifics of the incident during that interview. He did not remember telling police
that: 1) defendant was standing behind the black gate at the apartment building when
Scott got out of the Mercedes; 2) a car pulled up and parked behind the Mercedes while
he was in the park; 3) two people got out of the car and one person asked, “[W]here is my
gun[?]” ; 4) defendant was the only person standing by the black gate, which is where the
shots came from; 5) the person who was shot was the one who got out of the car talking
about a gun; and 6) Scott ran from the park when he heard the gunshots. Scott did not
recall a diagram of the scene he made during the September 1 interview. A video
recording of the interview was played for the jury.5 Even after identifying himself on the
video recording, Scott claimed he was not actually watching the DVD and continued to
maintain that he did not recall making the diagram or what he said during the interview.

5
       We have reviewed the video recording that has been included in the record on
appeal.
He did not remember telling the police that Little E, defendant’s nickname, shot the
victim on April 7, 2009. Scott acknowledged that the transcript of the DVD, which he
said he was reading while the DVD was playing, indicated he identified defendant as the
shooter.
       5.     Testimony of Robert Green
       Robert Green admitted that he was not interested in testifying in this case. He
claimed that when he was caught with a stolen car, he lied to police so he could get out of
jail. According to Green, the homicide officers who brought him to the station told him
that they would not let him go unless he said something about defendant’s involvement in
a shooting. Green said he made up a good story and told it to police. During his August
20, 2010 interview, Green told police that defendant shot Cousey because Green and
defendant were “caught together” on June 3, 2010, and Green “didn’t have nobody else to
think of at the time.” Green was not in the area when Cousey was shot. Green denied
that, during the day on April 7, 2009, he spoke with defendant or that defendant
expressed concern about Phifer and Cousey being at the police department, talking with
police, or that defendant said he was looking for Cousey. Green admitted he told police
he had the conversation with defendant, but claimed he was merely telling the police
what they wanted to hear. A video recording of Green’s interview with police on August
29, 2010 was played for the jury.6 Green was nervous during the interview because he
did not want anyone in the neighborhood to know he talked with police. He was
concerned about getting shot again or being beaten up in retaliation for cooperating with
police. After viewing the video recording, Green acknowledged that the police did not
tell him what to say. Rather, he claimed he had already thought of what to say before the
interview.
B.     Police Investigation
       Oakland Police Officer Joe Fesmire described the area of 85th and Plymouth as a
high crime area where he had responded “[n]umerous” times to “shootings and robberies


6
       We have reviewed the video recording included in the record on appeal.
and reports of drug dealing . . . .” Around 10:00 p.m. on April 6, 2009, Fesmire was on
patrol in front of the mini park in the 1700 block of 85th Avenue. Fesmire saw
defendant, Durant Riley and Marla Jamison, also known as Carla Watts, drinking in front
of a car. He approached them and noticed that they all smelled like marijuana.
Defendant said he was on parole and Fesmire conducted a parole search. Jamison/Watts
had a $20,000 warrant for domestic battery and was arrested. Fesmire warned the others
about loitering in the park after 10:00 p.m. and drinking in public. Fesmire was familiar
with the mini park and knew it was used for drug dealing.
      Jason Dunham, a software engineer with SST Incorporated, formerly known as
Shot Spotter Incorporated, testified that his company sold and maintained a network of
acoustic sensors that detected gunshots in Oakland. The sensors would send any sounds
of gunshots to a computer that would calculate the location of the shot. On request,
Dunham authenticated a forensic report that his company generated concerning the
shooting incident. The report consisted of audio files on a compact disc and “paper
documents.” The data on the files concerned April 7, 2009 at 1:17 a.m. The report
indicated that there were two shots which were fired seven seconds apart and within 10
feet of each other near 1722 85th Avenue next to the mini park.
      Around 1:15 a.m., on April 7, 2009, Oakland Police Officer Ny Nguyen and his
partner, Officer Smith, were dispatched to 85th Avenue “to check a shots spotter activity”
that indicated two shots had been fired. Nguyen explained that a shot spotter was a
device that picked up shots when guns were fired in an area. Nguyen went to the 1700
block of 85th Avenue where he saw a white baseball cap near a small pool of what
appeared to be fresh blood that was behind a maroon Mercedes. It appeared that
someone had been shot, but Nguyen did not find anyone at the scene.
      At approximately 1:30 a.m. on April 7, 2009, Oakland Police Officer Hector
Chavez responded to a report of a shooting at the intersection of Hillmont and Sunkist
Avenue. There he saw emergency vehicles and personnel, along with several deputies.
A 1996 maroon Nissan Maxima was blocking traffic. The shooting victim, Warren
Ingram, had been on the right passenger side of the Maxima when Chavez first arrived.
Ingram was bleeding from the head and chest. Chavez spoke with two civilian witnesses,
Thomas Cousey and Portia Phifer, who were taken by other officers to the homicide
department at the police station.
       Around 10:00 p.m. on April 7, 2009, Oakland Police Officer Kyle Hay went to the
8300 block of Plymouth to investigate reports of gunshots. Hay described the location,
which was near 84th and Plymouth, as a residential, high crime area. Witnesses to crimes
were typically uncooperative because they lived in the area and talking to the police was
not “looked well upon cuz’ you know it’s us versus them mentality.”
       When Hay arrived at Plymouth, he saw Cousey, whose body was soon covered
with a tarp, on the curb next to 1701 84th Avenue. Another officer had attempted to
render aid to Cousey while a couple of people stood around him “screaming and yelling.”
Hay saw several casings and slugs in the street.
C.     Defense
       Defendant did not present any evidence at trial.
                                     II. DISCUSSION
A.     Testimony of Unavailable Witness
       Defendant contends that the admission of Foster’s preliminary hearing testimony
violated his constitutional right of confrontation. Defendant claims that the prosecution
failed to meet its burden of due diligence to obtain Foster’s presence at trial and thus
failed to demonstrate Foster’s unavailability.
       1.     Background
       On November 14 and 15, 2011, J.C. Foster testified at the preliminary hearing.
On August 13, 2012, the prosecution filed points and authorities in support of a motion to
introduce the preliminary hearing testimony of J.C. Foster on the ground that he was
unavailable as a witness. A report by District Attorney’s Inspector Jeff Jouanicot,
summarizing the efforts to locate Foster, was attached to the points and authorities. That
same day, Jouanicot testified at a due diligence hearing regarding his attempts to locate
Foster. Jouanicot said that sometime during the first week of June of 2012, the
prosecutor asked him to locate and serve several witnesses, including J.C. Foster. At
some point, Jouanicot asked the prosecutor to draft three material witness warrants.
Jouanicot started his search for Foster by looking at “typical databases,” such as “the
sheriffs department’s booking, Department of Justice, CI&I, Oakland Police Department
records systems, other police department’s records” and “some Internet databases” were
available. Jouanicot determined that Foster had been on parole and contacted his parole
agent who advised him that Foster was no longer on parole and gave him “the last known
addresses and phone numbers and information” for Foster. During the week of June 11,
Jouanicot went to the last known address, spoke with the manager of the apartment
complex and learned that neither Foster nor his friends and family lived there.
       During the week of June 18th, Jouanicot spoke with a young man who insisted he
did not know Foster, but, based on the information Jouanicot had, the location “would
have been a valid address for him.” At that point, Jouanicot contacted Oakland police
officers who were familiar with Foster and “elicited their help in trying to locate him.”
Jouanicot gave the officers copies of the subpoena to serve Foster if they came across
him. One of the officers who was familiar with Foster said he had seen Foster in the
neighborhood “up until about that time” on a regular basis, but he no longer saw Foster
on the streets.
       In the week of June 26th, Jouanicot spoke with Officer Curtis Filbert, gave him a
copy of the subpoena and asked him “to pass that information out to the Oakland officers
working in that area.” Officer Filbert had indicated that he was familiar with both the
area and Foster. Jouanicot and Filbert had met in that area, which was Filbert’s assigned
beat. On July 3, Filbert called Jouanicot and told him he had spoken with Foster’s wife
at the last address Jouanicot had visited. Foster’s wife said he had been shot at, was
“scared for his life,” and was “hiding out.” Jouanicot asked Filbert to continue to try to
locate Foster and gave him updated subpoenas.
       During the weeks of July 30th and August 6th, Jouanicot returned to Foster’s last
known address on 5311 Belvedere Street in Oakland, “knocked on the door a couple
more times” and went down the street a few times hoping to see someone.
Unfortunately, Jouanicot still was not able to make contact personally with Foster on any
of those occasions.
       Jouanicot followed up with the Oakland Police officers he had previously spoken
to about Foster. He did a follow-up as recently as the week before his testimony. He also
did follow-up by checking the databases, as recently as the morning of his testimony, but
he did not find anything new.
       Jouanicot testified he had not been able to make contact with Foster to serve him
with a subpoena. Based on what he knew, Jouanicot believed Foster was “avoiding law
enforcement” because he knew that they wanted to serve him with a subpoena. Jouanicot
was sure Foster’s wife had given him the message, but he appeared to be trying to avoid
them. Other witnesses in this case had been similarly trying to avoid service of
subpoenas.
       On cross-examination, Jouanicot testified he did not write down the specific dates
and times he personally attempted to locate Foster. Jouanicot personally tried to serve
Foster six times, mostly early in the morning, between 8:00 a.m. and 10:00 a.m., but
sometimes later in the day, probably mid afternoons. Jouanicot did not contact Foster’s
mother or anyone else in his family other than his wife.
       Jouanicot noted that he had seen other addresses listed for Foster before the 5311
Belvedere Street address. However, Jouanicot assumed that because Foster’s wife lived
at the Belvedere address and it had been given as the forwarding address for Foster just a
few months earlier, that this was his current address. Jouanicot checked “EDD” for
Foster’s employment history and found nothing.
       Following Jouanicot testimony, the prosecutor argued that due diligence had been
shown. He emphasized that “the standard is exercise reasonable diligence, not exhaust
every means.” He noted that he had questioned Jouanicot about other witnesses in the
case and that three material witness warrants had been issued. The prosecutor had
indicated in prior pleadings that “no material witness warrant was sought for Mr. Foster
because there was no basis because he actually showed up for the preliminary hearing as
was ordered.” The prosecutor argued that, in determining “whether or not reasonable
efforts were exercised,” the trial court “should take into consideration in that process this
investigator’s overall duties as it relates to the other witnesses as well.”
       Defense counsel argued that “the standard” did not include consideration of
“whether or not the inspector was busy, whether or not other people had difficult jobs.”
He said due diligence required that the investigator make more than six attempts to
contact the person and that a surveillance be conducted. Counsel asserted, “They have to
exhaust just about every possible means in order to come into court and ask that a person
read in testimony.” He acknowledged that he could not cite a case to support his
position, but claimed he was familiar with the area based on practicing law for 20 years.
He argued that there should have been “a log so the court can make a record.” He also
argued that if the prosecution wanted to show due diligence, there should have been a log
showing that every day of the previous week, in the evening and on the weekend
someone went to Foster’s address to see if he was there. Defense counsel argued that the
burden of showing due diligence had not been met.
       The prosecutor observed that “the code itself” referred to “reasonable diligence.”
He noted that defense counsel could “cite no cases as it relates to his specific proposition
that essentially everything must be done.” Referring to that proposition, the prosecutor
said, “That’s not the state of the case law as it relates to evaluating the unavailability and
whether or not reasonable diligence has been exercised.”
       The trial court admitted Foster’s preliminary hearing testimony, stating: “The
Court has heard the testimony of Inspector Jouanicot, and it appears that he has done
many things to try to seek the appearance of J.C. Foster. [¶] From the first week in June
until now, he’s gone out or he’s tried to make contact with the parole officers, the wife,
other people who lived at the place of last known address. He’s attempted to have the
police officer familiar with Mr. Foster locate him out there. And I don’t know what else
he could have done other than to maintain an around-the-clock surveillance of that home
which comes beyond reasonable diligence. [¶] So the Court will find that Inspector
Jouanicot exercised due diligence to locate and serve J.C. Foster. And pursuant to
Evidence Code section I think that’s 1290, his preliminary hearing testimony, since it was
under oath and [defense counsel] did, in fact, have an opportunity to cross-examine him
at that time, may be used. Mr. J.C. Foster’s declared an unavailable witness.”
       Thereafter, Foster’s preliminary hearing testimony was read into the record.
       2.     Analysis
       Under the state and federal Constitutions, a criminal defendant has the right to
confront the prosecution’s witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15;
People v. Herrera (2010) 49 Cal.4th 613, 620 (Herrera).) “Although important, the
constitutional right of confrontation is not absolute. [Citations.]” (Id. at p. 621; accord,
People v. Thomas (2011) 51 Cal.4th 449, 499.) An exception exists when a witness is
unavailable, the witness testified against the defendant at a prior proceeding, and the
witness was subjected to cross-examination. (Evid.Code, § 1291, subd. (a)(2); Herrera,
supra, 49 Cal.4th at p. 621.)
       A witness is unavailable if the prosecution “has exercised reasonable diligence but
has been unable to procure his or her attendance by the court’s process.” (Evid.Code,
§ 240, subd. (a)(5).) Due diligence “ ‘ “connotes persevering application, untiring efforts
in good earnest, efforts of a substantial character.” ’ ” (Herrera, supra, 49 Cal.4th at p.
622; See People v. Valencia (2008) 43 Cal.4th 268, 292 (Valencia).) “Considerations
relevant to the due diligence inquiry ‘include the timeliness of the search, the importance
of the proffered testimony, and whether leads of the witness’s possible location were
competently explored.’ [Citation.]” (Herrera, supra, at p. 622; Valencia, supra, at
p. 292.) As long as “ ‘substantial good faith’ ” efforts are undertaken to locate a witness,
the fact that “ ‘additional efforts might have been made or other lines of inquiry
pursued’ ” does not indicate lack of diligence because “ ‘[t]he law requires only
reasonable efforts, not prescient perfection.’ [Citation.]” (People v. Diaz (2002) 95
Cal.App.4th 695, 706.)
       On appeal, “[w]e review the trial court’s resolution of disputed factual issues
under the deferential substantial evidence standard [citation], and independently review
whether the facts demonstrate prosecutorial good faith and due diligence [citation].”
(Herrera, supra, 49 Cal.4th at p. 623.)
       “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. [Citation.] The United States Supreme Court has described the
good faith requirement this way: ‘The law does not require the doing of a futile act.
Thus, if no possibility of procuring the witness exists (as, for example, the witness’
intervening death), “good faith” demands nothing of the prosecution. But if there is a
possibility, albeit remote, that affirmative measures might produce the declarant, the
obligation of good faith may demand their effectuation. “The lengths to which the
prosecution must go to produce a witness . . . is a question of reasonableness. [Citation.]
The ultimate question is whether the witness is unavailable despite good-faith efforts
undertaken prior to trial to locate and present that witness.” ’ [Citation.]” (Herrera,
supra, 49 Cal.4th at p. 622.)
       This good faith obligation is reflected in the language of Evidence Code section
240, subdivision (a)(5), which states that a witness is unavailable when he or she is
“ ‘[a]bsent from the hearing and the proponent of his or her statement has exercised
reasonable diligence but has been unable to procure his or her attendance by the court’s
process.’ (Italics added.) The term ‘[r]easonable diligence, often called “due diligence”
in case law, “ ‘connotes persevering application, untiring efforts in good earnest, efforts
of a substantial character.’ ” ’ [Citations.]” (Herrera, supra, 49 Cal.4th at p. 622.) The
due diligence requirement imposed by California law is essentially the same as the
federal constitutional good faith requirement. (Ibid.)
       Defendant contends the evidence summarized above does not support the trial
court’s finding that Foster was unavailable because the prosecution failed to establish that
it exercised due diligence to secure Foster’s attendance at trial. “[D]iligence has been
found when the prosecution’s efforts are timely, reasonably extensive and carried out
over a reasonable period. [Citations.]” (People v. Bunyard (2009) 45 Cal.4th 836, 856
(Bunyard).) In contrast, diligence has found to be lacking where the prosecution’s efforts
were “perfunctory or obviously negligent. [Citations.]” (Id. at p. 855.)
       Here, rather than focusing on the prosecutor’s efforts, or lack thereof, defendant
devotes the majority of his argument advancing his position that Moore was “Ingram’s
killer” and “at least implicated in the murder of . . . Cousey.” For this reason, defendant
asserts that Foster’s testimony was crucial insofar as Moore’s “credibility included the
question of his third-party culpability.”
       Nevertheless, defendant briefly addresses the reasonableness of the prosecution’s
search for Foster, asserting that the prosecution’s “proof of diligence fell far short” of
what was constitutionally required in this case. Defendant faults the investigator for only
knocking on a few doors, failing to keep a log, failing to set up surveillance of Foster’s
last known address, and limiting the attempts to the hours of 8:00 a.m. and 10:00 a.m.
Defendant asserts that other than theses limited attempts, the investigator “surrendered
his duties to the Oakland police.” He also faults the prosecution for failing to produce
any Oakland police officers to testify regarding the efforts to locate Foster. Thus,
according to defendant, “[i]n light of the importance of Foster as a witness,” the
prosecution’s efforts cannot be reasonably deemed to constitute due diligence. We
disagree.
       Contrary to defendant’s suggestion, “[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 ‘substantive risk that this important
witness would flee,’ to ‘take adequate preventative measures’ to stop the witness from
disappearing.” (People v. Wilson (2005) 36 Cal.4th 309, 342.) Here, Foster appeared
without incident at the preliminary hearing. Then, sometime prior to trial, Foster got
scared and went into hiding. The investigator explored various avenues in attempting to
locate him; checking in with Foster’s parole officer; making numerous visits to Foster’s
last known residence and other residences; checking multiple statewide databases for
Foster; contacting his wife; and reaching out to the Oakland Police Department.
Exercising our independent review, we conclude the prosecution’s efforts to produce
Foster for trial were reasonable under the circumstances. (See People v. Wilson, supra,
36 Cal.4th at p. 342.) That the investigator failed to keep a log of his efforts or that he
limited his attempts to locate Foster to morning hours, does not transform this otherwise
thorough effort into an unreasonable one, lacking the requisite diligence. The situation
here is the same as repeatedly confronted by our Supreme Court: “[D]efendant has
suggested other things the prosecution might have done. But these suggestions do ‘not
change our conclusion that the prosecution exercised reasonable diligence. “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.” ’ ” (Valencia, supra, 43 Cal.4th at p. 293, quoting People v. Wilson, supra,
36 Cal.4th at p. 342.)
       Accordingly, we conclude that the prosecution satisfied its good faith obligation
and exercised reasonable diligence to secure Foster’s attendance at trial.
       To the extent defendant maintains that Foster’s testimony was needed to either
rehabilitate Moore’s credibility or cast doubt on it, his interests and motives in cross-
examining Foster were sufficiently similar to those existing at trial, that is, to raise a
reasonable doubt as to Moore’s involvement in the murders of Ingram and Cousey.
Accordingly, we conclude there was no violation of defendant’s constitutional rights.
B.     CALCRIM No. 317
       Defendant next contends that CALCRIM No. 317, which instructed the jury to
view prior recorded testimony by the same standards as live testimony, was
constitutionally defective. According to defendant, the instruction, as given, violated his
right to confrontation.
       The jury was instructed with CALCRIM No. 317 as follows: “The testimony that
J.C. Foster has given under oath was read to you because he is not available. You must
evaluate his testimony by the same standards that you apply to a witness who testified
here in court.” According to defendant, CALCRIM No. 317 “should have been
formulated as a cautionary instruction, admonishing the jurors why and in what way prior
testimony is not the optimal evidence and why there are pitfalls in trying to assess
credibility from a ‘cold record.’ ” (Italics omitted.) We disagree.
       Despite defendant’s contrary contention, CALCRIM No. 317 is a correct
statement of law. There is no support for defendant’s contention that CALCRIM No. 317
infringes upon his right to confrontation. Rather, the instruction merely advises the jury
to view the testimony of an unavailable witness by the same standards as witnesses who
have appeared in court.
       We are not persuaded by defendant’s alternate attack on the admission of Foster’s
preliminary hearing testimony. As discussed, the prosecution exercised due diligence in
attempting to secure Foster’s attendance at trial. Moreover, the same attorney who
represented defendant at trial appeared with him at the preliminary hearing, and, as the
trial court noted, had the opportunity to cross-examine Foster. Accordingly, there was no
confrontation clause violation. (California v. Green (1970) 399 U.S. 149, 160-161;
People v. Chavez (1980) 26 Ca1.3d 334, 360-361.)
       In determining the impact of the instruction, it is not viewed in isolation, and must
be viewed with other instructions. (People v. Castillo (1997) 16 Ca1.4th 1009, 1016.)
When viewed in this context, CALCRIM No. 317 does not give any advantage to
Foster’s testimony because he was unavailable at trial. The jury was instructed to
evaluate Foster’s testimony by the same standards that it would apply to a witness who
testified at trial. Nothing in the instructions suggests the jury should give any special
deference to Foster’s preliminary hearing testimony.
C.     Prosecutorial Misconduct
       Defendant contends the prosecutor committed misconduct during closing
argument insofar as he argued that Foster’s prior inconsistent statement could be used for
the truth of the matter asserted, rather than for the limited issue of credibility.
       Defendant, however, does not set forth the particular language he finds
objectionable. Rather, without citation to the record, defendant suggests that the
prosecutor capitalized on a discrepancy between Foster’s statement to the police and his
testimony at the preliminary hearing.
       It is not the duty of this court to find support in the record for an appellant’s
claims. (Cal. Rules of Court, rules 8.204(a)(1)(C), 8.360(a).) Rather, it is the duty of
defendant’s counsel to justify reversing the jury’s decision on that point by citing relevant
authority and discussing how that authority applies to the evidence on the record.
Appellant’s counsel has failed to perform the second step of that process. (See Nwosu v.
Uba (2004) 122 Cal.App.4th 1229, 1245, fn. 14 [“[H]e did not make this argument on
appeal in any adequate fashion (i.e., presentation of cogent argument with specific
citations to the record); we therefore deem such argument . . .to have been waived”]; see
Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [“he cites only general
legal principles without relating them to any specific facts or admissible evidence. As a
general rule, ‘The reviewing court is not required to make an independent, unassisted
study of the record in search of error . . . .’ ”].) Nevertheless, in the interest of justice we
disregard the noncompliance and address the argument on its merits and conclude it fails.
(See Cal. Rules of Court, rules 8.204(e)(2), 8.360(a).)
       It appears that challenged remarks by the prosecutor were in relation to the
testimony of Foster and Moore: “So as to Mr. Moore, not only do you have corroboration
with Portia Phifer as to the events leading up to the shooting, but after that shooting, J.C.
Foster gave a taped statement and he gave a taped statement stating that Deandrey
Moore, the very same Deandrey Moore that you saw on the stand, came to his house at
roughly two a.m. on April 7th, 2009. So after Warren [Ingram] had been shot, we’re
talking within an hour, he woke him up. [¶] And as J.C. Foster said on that taped
statement, he had been smoking marijuana earlier and so he essentially dozed out. And
this is two o’clock in the morning and he was asleep. And he was awakened by a loud
knock at his door. And the person knocking at his door was Deandrey Moore. [¶] And
Deandrey Moore at that time, and this is months before Deandrey Moore had talked to
the police, months before Deandrey Moore wanted to get out of custody, this is the same
exact day almost immediately after Warren had been murdered, he’s at the front door of
J.C. Foster telling him, ‘Hey, Warren just got shot. Little E did it.’ [¶] And
unequivocally, J.C. Foster knew Little E. He grew up with all these folks. He was very
close to Deandrey Moore, knew Thomas Cousey. As he said, he used to take him back
and forth to basketball practice. [¶] So when he was told Little E, there was no question
in his mind Little E was the person he knows as Eric Gaines, the defendant. And he
picked him out in terms of a photo lineup. [¶] So in terms of corroboration as it relates
to Deandrey Moore, you’ve got Portia Phifer, J.C. Foster, and Anthony Scott if that was
not enough even before then. [¶] Now, given J.C. Foster’s portion that’s been introduced
in this trial as only seven minutes long, I’d like to refresh your recollection in that regard
and play that seven-minute clip real briefly. [¶] And stipulate the court reporter need not
take notes. [¶] THE COURT: All right (Exhibit 19 was played). [¶] [Prosecutor]: So
once again, Deandrey Moore’s statement is further corroborated with J.C. Foster. Right
after Warren was shot and executed by the defendant, Deandrey went to J.C. Foster’s
house and told him not only that the defendant shot and murdered him but he actually
told him about the story in terms of what happened.”
       At no time did the defense object to the prosecutor’s argument. Rather, defense
counsel opted to respond to the argument, arguing that Foster’s interview was based on
rumors and that the jury could not properly evaluate his credibility because his testimony
was read into the record: “The D.A. brought in Foster’s testimony. Does Foster’s
testimony support the D.A.’s or the defense theory? We know that Foster was
interviewed on August 20, 2009. [¶] He says Moore came to his door on that interview.
He admits in that interview, that statement that he gave in that interview were [sic] based
on rumors. He says that Ingram’s family is targeting anyone connected. He testifies in
court in this courtroom November 14 and 15th, 2011. Doesn’t testify in this case. We
have to read his testimony in. [¶] You don’t get a chance to see his demeanor, his
attitude. You’ve got to go by what the inspector read. Can’t consider that because he’s
not Mr. Foster. But if you want to look or read through his testimony, I imagine that
could be something you could do. I submit to you it’s a wash because he doesn’t give
you a proper evaluation. [¶] He says that Moore is not trustworthy. He said that in the
testimony that he gave that was read into the record. He says he knows a lot of Erics and
Eric killed not far from the crime scene. [Sic.] [¶] . . .O.P.D. arrested an Erick Gaines
with a K, not a C. [¶] Not my client. It’s been conceded there’s a lot of Erics out there.”
       “ ‘ “ ‘The applicable federal and state standards regarding prosecutorial
misconduct are well established. “ ‘A prosecutor’s . . . intemperate behavior violates the
federal Constitution when it comprises a pattern of conduct “so egregious that it infects
the trial with such unfairness as to make the conviction a denial of due process.” ’ ”
[Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally
unfair is prosecutorial misconduct under state law only if it involves “ ‘ “the use of
deceptive or reprehensible methods to attempt to persuade either the court or the
jury.” ’ ” ’ ” [Citations.]’ (People v. Abilez (2007) 41 Cal.4th 472, 494.) ‘To preserve a
claim of prosecutorial misconduct for appeal, a defendant must object and seek an
admonition if an objection and admonition would have cured the harm.’ (People v.
Kennedy (2005) 36 Cal.4th 595, 618, disapproved on another point in People v. Williams
(2010) 49 Cal.4th, 405, 458-459.) The objection must be made on the same ground upon
which the defendant now assigns error. (People v. Jones (2003) 29 Cal.4th 1229, 1260.)”
(People v. Redd (2010) 48 Cal.4th 691, 733-734.)
       “ A defendant will be excused from the necessity of either a timely objection
and/or a request for admonition if either would be futile. [Citations.] In addition, failure
to request the jury be admonished does not forfeit the issue for appeal if ‘ “an admonition
would not have cured the harm caused by the misconduct.” ’ [Citation.] Finally, the
absence of a request for a curative admonition does not forfeit the issue for appeal if ‘the
court immediately overrules an objection to alleged prosecutorial misconduct [and as a
consequence] the defendant has no opportunity to make such a request. [Citations.]”
(People v. Hill (1998) 17 Cal.4th 800, pp. 820-821, overruled on another ground in Price
v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn.13.)
       Here, appellant argues defense counsel’s failure to object was excused because
“there was, in effect, an[] admonition given in the form of CALCRIM No. 319, and its
ineffectiveness in forestalling the effect of the prosecutor’s misrepresentation of the law
is the very basis on which the futility of objection and admonition standards in this case.”
According to defendant, “[t]he distinction between the use of Foster’s statement to the
police for purposes only of assessing the credibility of his preliminary hearing testimony,
and not for the truth of the matters asserted in the statement to the police, rests on an
exceedingly subtle distinction. If Foster’s statement to the police was offered to show
what was true and not true in his preliminary hearing testimony, that statement would
have little or no[] probative force in that regard unless that statement were assessed as
true or false.”7 (Italics omitted.)
       Notwithstanding this convoluted argument, we find no support for the assertion
that it would have been futile to interpose objections and request that the jury be
admonished regarding the impermissible use of hearsay. Here, rather than object or
request an admonition, defense counsel made the tactical decision to challenge the
prosecutor’s argument by denigrating Foster’s credibility. Accordingly, we conclude
defendant forfeited the issue on appeal.
       Nevertheless, even addressing the merits, we find nothing in the prosecutor’s
conduct that was so egregious that infected the trial with such unfairness as to constitute a
denial of due process. (People v. Redd, supra, 48 Cal.4th at pp. 733-734.) We further
conclude that the prosecutor’s argument did not deprive defendant rights to confrontation.


D.     Cumulative Error
       Finally, defendant contends that cumulative effect of the instructional error and
prosecutorial misconduct resulted in reversible error. Inasmuch as we have found no
error, we perforce reject his claim of cumulative error.
                                      III. DISPOSITION
       The judgment is affirmed




7
        Defendant further asserts that: “[I]n the preliminary hearing testimony, Foster
asserted that Moore telephoned him. In the prior statement, he asserted that Moore came
to his house. That Moore telephoned him is false only if it is true that Moore came to his
house. More importantly, Foster’s prior statement corroborates the truth of his
preliminary hearing claim that Moore identified Eric Gaines and the killer [sic.] only if []
the prior statement that Moore had done this is true.” (Italics omitted.)
                            _________________________
                            REARDON, ACTING P. J.


We concur:


_________________________
RIVERA, J.


_________________________
STREETER, J.
