Filed 2/13/14
                    CERTIFIED FOR PARTIAL PUBLICATION*

           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          SECOND APPELLATE DISTRICT

                                     DIVISION SIX


THE PEOPLE,                                                2d Crim. No. B236898
                                                          (Super. Ct. No. A521156)
     Plaintiff and Respondent,                              (Los Angeles County)

v.

JOSE CARMEN MURILLO GARCIA,

     Defendant and Appellant.




                In 2011 a jury convicted Jose Carmen Murillo Garcia of first degree
murder with a firearm enhancement in the September 9, 1976 death of Roberto
Lozano. The verdict was reached after Garcia's third trial; two previous jury trials
ended in mistrials. The trial court sentenced Garcia to life with the possibility of
parole plus five years for the firearm enhancement. He appeals, contending that he
was denied his rights to a speedy trial, due process, and to confront a key witness
against him. Garcia also contends that the trial court improperly denied his motions
to dismiss in the interests of justice after his first and second trials and made
prejudicial evidentiary rulings and sentencing errors. We correct the sentencing
errors and otherwise affirm.



                *
                Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for partial publication. The portions of this opinion to be deleted
from publication are identified as those portions between double brackets, e.g., [[/]].
                       FACTS AND PROCEDURAL HISTORY
                           The Murder and the Investigation
              At approximately 4:00 p.m. on September 9, 1976, Baldwin Park
Police Officers were called to the scene of a homicide on Baldwin Park Boulevard.
They found victim Roberto Lozano (Roberto)1 slumped over dead in the driver's seat
of a white 1968 Ford. He had been shot with a .22 caliber firearm. The police found
several .22 caliber shell casings in the car. The police investigation revealed that
Roberto, Garcia and a third person later identified as Pablo Chavez had been in a bar
not far from the scene and that they left the bar together at about 3:45 p.m.
              The police interviewed Barbara Ornellas, who was standing in her front
yard across the street from the site of the crash. Ornellas reported that she saw the
white Ford turning onto her street, followed by a green car. The passenger in the
white Ford pointed a gun at the driver's head and shot the driver four or five times.
The Ford jumped the curb opposite Ornellas's house and crashed into a chain link
fence. The green car stopped in the middle of the street with the engine running.
The shooter exited the white Ford with a gun in his hand, walked toward the green
car and got into the front passenger seat. The green car made a U-turn and drove off.
Ornellas later identified Garcia as the shooter from a six-pack photo display.
              Later on the day of the murder, a California Highway Patrol officer
found a .22 caliber Beretta pistol next to the 605 Freeway near the junction with
Interstate 10. A sheriff's department firearms examiner determined that the shell
casings recovered from the white Ford were fired from this Beretta pistol.
              Several witnesses, including Norberto Lozano and Rudolfo Zavala, told
police that Garcia drove a 1969 green Pontiac. Zavala testified that he cosigned for
Garcia when Garcia purchased the green Pontiac. Following up on tips received
from friends of Garcia, the police located the green Pontiac in San Ysidro, California,


              1
              Because several witnesses, as well as the victim, share the name
Lozano, we refer to the Lozanos by their first names for clarity.

                                           2
near the Mexican border, on October 1, 1976.2 The car was registered to Rudolfo
Zavala. It contained an insurance application and an auto body repair order in
Garcia's name.
              A felony complaint was filed against Garcia on September 17, 1976,
and on September 20, 1976, a warrant was issued for his arrest. Law enforcement
made no further efforts to find Garcia after October 1976.
              Thirty-three years later, on May 5, 2009, Baldwin Park police received
a tip from the FBI that Garcia was in Laredo, Texas. He was arrested that day and
returned to California. On July 21, 2009, following a preliminary hearing, Garcia
was charged by information with the murder of Roberto Lozano.
                                    Pablo Chavez
              Following Garcia's arrest in 2009, Baldwin Park Police located Pablo
Chavez in prison in California. The police interviewed him twice before Garcia's
preliminary hearing.
              At the preliminary hearing, Chavez testified that he had been at a bar
with Garcia and Roberto on September 9, 1976.3 Garcia and Roberto left the bar
together in Roberto's white Ford and Garcia told Chavez to follow them in Garcia's
green Pontiac, tossing Chavez the keys. Chavez followed, heard gunshots and saw
Roberto's car crash into a fence. Chavez ran to the white Ford and saw Roberto
slumped over in the driver's seat, dead and covered with blood. Garcia exited
Roberto's car. Chavez asked him, "What did you do?" and Garcia responded, "Let's
split for San Ysidro." Garcia and Chavez then got into the green Pontiac and Garcia
repeated the order to "Go ahead and go to San Ysidro." Chavez drove to San Ysidro
as instructed. En route, while they were driving on the 605 Freeway near the
junction of the I-10 Freeway, Garcia threw something that looked "like a gun" out of

              2
                 San Ysidro is a district in the south of San Diego, immediately north
of the United States – Mexico border, where Interstate 5 and a pedestrian walkway
cross into Tijuana.
               3
                 At trial Chavez testified that Garcia told him while they were at the
bar that Roberto had sexually molested Garcia's wife.

                                           3
the car. Chavez continued driving to San Ysidro, where he and Garcia left the green
Pontiac in a parking lot. Garcia and Chavez then walked across the border into
Tijuana, where they separated. Chavez had no further contact with Garcia. Chavez
returned to California several months later.
              [[When Baldwin Park Police located Chavez in prison in 2009, he was
scheduled to be returned to Mexico upon his release. The police obtained permission
from the United States State Department to have Chavez "paroled" to Baldwin Park
Police as long as trial was pending. The police did not have Chavez in custody
pending the trial; he stayed with his family. The police understood that Chavez
would be returned to Mexico on November 30, 2009.
                                   The Three Trials
              Pablo Chavez testified at Garcia's first trial, which began on November
3, 2009. The jury deadlocked nine-to-three in favor of acquittal on November 17,
2009. On November 20, 2009, the trial court set a retrial date of January 11, 2010.
On November 25, 2009, the prosecution's trial counsel advised Garcia's counsel that
Chavez was being returned to Mexico and that she intended to have him return for
the retrial. Chavez was returned to Mexico in early December. Police had no
address for Chavez in Mexico, but they had the address of his wife and son in Perris,
California.
              Chavez gave Detective Real of Baldwin Park Police a cell phone
number that Real used to contact Chavez in Mexico. In January 2010 Chavez
informed Detective Real that he was in Tijuana and that his family in Mexico was
receiving death threats. In February 2010 Detective Real asked Chavez to return and
testify at the second trial. Chavez "was adamant [that] he wasn't going to return
because of those death threats." Chavez also told Detective Real that "his family
lived in [the Mexican state of] Guerrero which, according to him, . . . had a lot of
drug violence and kidnappings there."
              After several continuances, the second trial began on August 31, 2010.
Detective Real kept in regular contact with Chavez's wife and son in Perris


                                           4
throughout the first half of 2010. He also conducted monthly two-day stakeouts at
the Perris home between the first and second trials. As of March 25, 2010, Chavez's
son did not know where Chavez was. On July 20, 2010, Detective Harvey of
Baldwin Park Police ran a criminal check on Chavez and found no record of new
arrests in the United States. Detective Harvey made several inquiries to the Mexican
Consulate for assistance, but received no return calls. Detective Harvey also
contacted the Department of Homeland Security, which had no record of Chavez re-
entering the United States.
              On August 25, 2010, the trial court found Chavez to be unavailable and
allowed the reading of his testimony at the second trial. The second trial ended in a
mistrial on September 20, 2010. This time the jury deadlocked eight-to-four in favor
of conviction. On September 30, 2010, the trial court set a third trial, which began on
September 21, 2011.
              Detective Real resumed his efforts to locate Chavez on May 9, 2011.
United States Customs confirmed that Chavez had not returned to the United States.
Detective Real searched for and found no record of arrests in California. He
contacted Chavez's wife, who told him that Chavez had not come back, was not
coming back and that she had no contact information for him. Suspecting that Mrs.
Chavez was being evasive, Detective Real conducted surveillance of the Perris
house. He conducted a dozen stakeouts between the second and third trials. Chavez
did not appear.
              Garcia requested a hearing to determine whether Chavez was
unavailable for the third trial. Finding that the People had exercised reasonable
diligence to produce Chavez, the trial court found Chavez to be unavailable and
permitted the introduction of his testimony from the first trial at the third trial. The
jury returned a guilty verdict.]]




                                            5
                                     DISCUSSION
                                     I. Speedy Trial
              Garcia contends that the 33-year delay between the filing of the
criminal complaint and his arrest violated his state right to a speedy trial and his
state and federal right to due process. The California Constitution guarantees a
criminal defendant's right to a speedy trial. (Cal. Const. art. 1, § 15.) Under both
state and federal law, due process of law also bars prejudicial delay in bringing a
defendant to trial. (People v. Martinez (2000) 22 Cal.4th 750, 754; Doggett v.
United States (1992) 505 U.S. 647, 655, fn. 2.) Both rights are triggered by the filing
of a criminal complaint. (People v. Martinez, supra, at p. 754.)4 To prevail on either
speedy trial or due process grounds, the defendant must first show prejudice caused
by the delay, whereupon the burden shifts to the prosecution to justify the delay. The
court then balances the harm against the justification. (Jones v. Superior Court
(1970) 3 Cal.3d 734, 741.) We uphold the trial court's ruling or decision on appeal if
it is supported by substantial evidence. (People v. Mitchell (1972) 8 Cal.3d 164,
167.)
A. Waiver of Right to Speedy Trial
              The People urge us to bypass this balancing test and to find instead that
Garcia forfeited his right to speedy trial by fleeing California to avoid prosecution.
(People v. Perez (1991) 229 Cal.App.3d 302.) We agree. "'[A] defendant who flees
the jurisdiction of a court for the purpose of avoiding prosecution waives the right to
a speedy trial.' [Fn. omitted.]" (Id. at p. 308.) The balancing test described above
"does not come into play when the defendant has fled the jurisdiction for the purpose
of avoiding prosecution. [T]he fugitive, having done all he or she can do to avoid




              4
                  Garcia does not assert his speedy trial right under the Sixth
Amendment to the United States Constitution, which is not triggered until either
arrest or the filing of an indictment or information. (People v. Martinez, supra, at pp.
754-755.)

                                            6
being brought to justice, cannot then claim that denial of the right to speedy trial
resulted from the ensuing delay." (Id. at p. 314.)
               In Perez, the defendant was indicted in 1978 for murder in California.
He was not aware of the indictment. A week later, he was arrested on federal drug
charges in Puerto Rico. At a bail hearing on the drug charges, the federal agent who
arrested defendant informed the court, in defendant's presence, "'that there were
charges to be filed, very serious charges, by the State of California,'" against the
defendant. (People v. Perez, supra, 229 Cal.App.3d at pp. 305-306.) The defendant
was released on his own recognizance and disappeared. Eight years later he was
located in Venezuela, was arrested and returned to California. At the hearing on the
defendant's speedy trial motion, a federal agent testified that he had interviewed the
defendant in Venezuela after his arrest and the defendant informed him "'that he
didn't want to come to the United States because he had killed two people in
California . . . and he was afraid he was going to be prosecuted on that.'" (Id. at p.
307.) The court held that "a defendant who flees the jurisdiction of a court for the
purpose of avoiding prosecution waives the right to a speedy trial.' [Fn. omitted.]"
(Id. at p. 308.)
               The waiver of the right to a speedy trial, like all waivers, must be
knowing: a defendant who leaves the court's jurisdiction not knowing charges are
pending does not thereby waive the right to a speedy trial. (People v. Perez, supra,
229 Cal.App.3d at p. 308, fn. 4; see also Doggett v. United States, supra, 505 U.S. at
p. 653 [no forfeiture of speedy trial right found where defendant did not know of the
charges against him until his arrest].) Garcia contends that he did not waive his right
to a speedy trial because he did not know charges were pending against him until he
was arrested in 2009. The People presented substantial evidence, however, that
Garcia was aware that he was subject to prosecution for Roberto's murder when he
fled to Mexico. At Garcia's preliminary hearing Chavez testified that when he saw
Roberto dead and covered with blood in the white car, he asked Garcia, "What did
you do?" Garcia responded by ordering Chavez "Let's split for San Ysidro." After


                                            7
Garcia and Chavez got into the green car Garcia repeated the instruction: "Go ahead
and go to San Ysidro." Chavez did as he was told and drove Garcia to the Mexican
border at San Ysidro, where they walked across the border together. Along the way
Garcia discarded what "looked like" a gun. This testimony was substantial evidence
that Garcia fled the jurisdiction to avoid prosecution for Roberto's murder and
compels the reasonable inference that he did so.
              It does not matter that charges had not been filed against Garcia when
he fled. As the court explained in Perez, "[i]t does not matter that defendant had not
been informed of the exact nature of the charges . . . before he fled to Venezuela"
because he had been informed the day before he fled that "serious charges" against
him were pending in California. (People v. Perez, supra, 229 Cal.App.3d at p. 309.)
Perez's admission that he had killed two people in California and was afraid he would
be prosecuted for them "demonstrates defendant was aware of the nature of the
charges and actively sought to avoid prosecution." (Ibid.)
              Garcia's instructions to Chavez to drive him to the border immediately
after the killing demonstrate his knowledge that he would be prosecuted for Roberto's
murder and "actively sought to avoid" that eventuality. Although Garcia argues that
Chavez was an unreliable witness, the trial court credited his testimony concerning
Garcia's flight. Chavez's testimony was also corroborated by the evidence that
Garcia's car was found in San Ysidro where Chavez said he left it and by the CHP's
recovery of a firearm where Chavez testified Garcia discarded what looked "like a
gun." Substantial evidence demonstrates that Garcia fled California to avoid
prosecution for Roberto's murder.5



              5
                  Although the trial court did not expressly find that Garcia waived his
speedy trial right by fleeing to avoid prosecution, its denial of Garcia's speedy trial
motion was correct on that theory for the reasons explained in the text. We sustain
the trial court's ruling "regardless of the considerations which may have moved the
trial court to its conclusion." (In re Pickett (1972) 25 Cal.App.3d 1158, 1163.)



                                            8
[[B. Evidentiary Hearing
              At the hearing on Garcia's speedy trial motion, his counsel asked for
leave to present additional evidence supporting his motion, consisting of testimony of
Garcia's wife and others that Garcia did not flee to Mexico on September 9, 1976, but
remained in California within reach of law enforcement. Garcia claims that the trial
court abused its discretion when it denied his request. There was no abuse of
discretion. Garcia did not properly present his request for an evidentiary hearing to
the trial court: he did not request such a hearing in his motion and did not attach to
his motion any declarations describing the evidence he wanted to present. The trial
court did not deny Garcia's request in any event. The trial court twice stated that it
would give him the opportunity to introduce additional evidence if he thought it was
necessary. Garcia's counsel did not press the issue, however, and did not protest
when the trial court ruled on the speedy trial motion without hearing additional
evidence. By not pressing for a ruling, Garcia deprived the trial court of the
opportunity to correct potential error and failed to preserve the issue for appeal.
(People v. Ramirez (2006) 39 Cal.4th 398, 450.)
              Even if the trial court effectively denied Garcia's request for an
evidentiary hearing, it did not abuse its discretion. "In determining the admissibility
of evidence, the trial court has broad discretion." (People v. Williams (1997) 16
Cal.4th 153, 196.) At the hearing Garcia made an offer of proof of the evidence he
wanted to offer: testimony from witnesses, including Garcia's wife, that Garcia was
in Sanger, California throughout the latter half of 1976 and thus was not in Baldwin
Park on the day of the murder. The trial court stated that such evidence would be
irrelevant in light of Chavez's testimony about Garcia's flight. Because the trial court
heard Garcia's offer of proof and was unpersuaded, it did not abuse its discretion by
failing to hear Garcia's evidence.
                                II. Motions to Dismiss
              Following the first and second trials, Garcia moved to dismiss the case
in the interest of justice, in reliance on Penal Code section 1385. Both motions were


                                            9
denied, which Garcia contends was an abuse of discretion. (People v. Carmony
(2004) 33 Cal.4th 367, 374.)
              The first trial ended in a verdict of nine-to-three for acquittal. The trial
court denied Garcia's first motion to dismiss based on the People's proffer of a new
legal theory, i.e., that Chavez was an accomplice to the murder. The trial court
believed that the new legal strategy would make "a different result very likely" on
retrial. In response, Garcia argued that evidence was likely to be lost because the
People might not be able to produce Chavez for a second trial. The trial court
weighed those considerations in its decision to deny the motion and did not abuse its
discretion.
              The trial court denied Garcia's motion to dismiss after the second trial
because of the seriousness of the offense combined with the jury's about-face: the
jury deadlocked eight-to-four for conviction. The court reasoned that the People's
new legal strategy likely accounted for its stronger showing in the second trial,
increasing the likelihood that a third trial would lead to a verdict. The trial court
weighed this consideration against the 33-year time lapse, the length of time Garcia
had been in custody (18 months), and his poor health and diminishing financial
resources. There was no abuse of discretion.
              Contrary to Garcia's claim, the record does not show that the trial court
based either of its rulings on improper consideration of jurors' deliberations.
                               III. Confrontation Clause
              Garcia contends that the trial court improperly permitted the
introduction of Chavez's testimony from the first trial at the third trial because
Chavez was not "unavailable" within the meaning of the confrontation clause of the
United States and California Constitutions. Garcia also claims that Chavez's two
police interviews were improperly admitted as prior consistent statements. Neither
contention has merit.
A. Forfeiture By Wrongdoing
              The People contend that Garcia forfeited his right to complain about


                                            10
Chavez's absence from the second trial by making death threats against Chavez and
his family, thus preventing Chavez from testifying. This argument is meritless.
              The forfeiture by wrongdoing rule applies where there is "substantial
evidence" that the defendant "committed an act to prevent a witness from testifying."
(People v. Banos (2009) 178 Cal.App.4th 483, 501.) The evidence of death threats
came from Detective Real, who testified that Chavez told him he would not return for
the second trial because he had received death threats and that his family lived in
Guerrero, "which, according to [Chavez], had a lot of drug violence and kidnappings
there." Detective Real did not testify that Chavez named Garcia as the source of the
threats and the prosecutor did not press him to be more specific.
              We will not infer, as the People urge, that Garcia was the source of
the threats. Reasonable inferences from the evidence must be based on substantial
evidence, not on "'suspicion, . . . speculation, supposition, surmise, or conjecture
. . . ." (People v. Raley (1992) 2 Cal.4th 870, 891.) "'If the existence of an essential
fact upon which a party relies is left in doubt or uncertainty, the party upon whom the
burden rests to establish that fact should suffer, and not his adversary.' [Citations.]"
(People v. Tatge (1963) 219 Cal.App.2d 430, 436.) Whether the threats came from
Garcia, as opposed to some other source, is an essential fact underlying the People's
forfeiture by wrongdoing argument. Detective Real created uncertainty by not
making it clear that Chavez identified Garcia as the source of the threats and by
leaving open the possibility that the threats came from others in the apparently
violent community where Chavez's family lived. The People's failure to clear up that
uncertainty must be resolved in Garcia's favor. We reject the People's forfeiture by
wrongdoing argument because it is based on conjecture, not substantial evidence.
B. Reasonable Diligence
              Both federal and state law recognize an exception to the right of
confrontation when the prosecution demonstrates both the witness's unavailability
and the reliability of the previous testimony, as demonstrated when the party against
whom the testimony is offered "'had the right and opportunity to cross-examine the


                                           11
[witness] with an interest and motive similar to that which he has at the hearing.'
[Citation.]" (People v. Louis (1986) 42 Cal.3d 969, 983; Barber v. Page (1968) 390
U.S. 719, 722.)
                A witness who is absent from a trial is not "unavailable" within the
meaning of the Sixth Amendment unless the prosecution has made a "'good faith
effort'" to secure the witness's presence at the trial. (People v. Herrera (2010) 49
Cal.4th 613, 622.) California requires the proponent to have "'exercised reasonable
diligence but has been unable to procure the witness's attendance . . . .'" (Ibid.; Evid.
Code, § 240, subd. (a)(5).) Our Supreme Court has held that these standards are
indistinguishable. (Ibid.) We independently review the trial court's determination
that the prosecution exercised reasonable diligence. (People v. Cromer (2001) 24
Cal.4th 889, 901.) Relevant considerations "'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.]" (People v. Herrera, supra, at p.
622.) After independent review, we agree with the trial court that the People met
their burden.
                Chavez returned to Mexico after the first trial, as both the People and
Garcia knew he would. There is no evidence that the prosecuting attorney knew or
should have known that Chavez would not return to testify at the second trial; in fact,
she expected him to do so. Detective Real communicated with Chavez several times
by telephone. Detective Real also had the address of Chavez's wife and son in Perris.
In January 2010 Chavez told Detective Real for the first time that his family in
Mexico was receiving death threats. Later, when Detective Real asked Chavez to
return and testify at the second trial Chavez "adamantly" refused because of the death
threats.
                The second trial did not begin until August 31, 2010. Despite Chavez's
insistence that he would not testify at the second trial, Detective Real kept in regular
contact with Chavez's wife and son in Perris. He also conducted at least a dozen 2-
day stakeouts at the Perris house between the first and second trials in an effort to


                                            12
contact Chavez if he should return to his home. Officers ran criminal checks to
determine if Chavez had picked up any new arrests in the United States and found
none. They contacted the Department of Homeland Security, which advised that
there was no record of Chavez re-entering the United States. Chavez was not located
and his testimony from the first trial was read at the second trial, which ended in a
mistrial on September 20, 2010.
                The trial court granted the People's motion for a third trial, which
began on September 21, 2011. Detective Real resumed his efforts to locate Chavez
on May 9, 2011. United States Customs confirmed Chavez had not returned to the
United States. Detective Real found no record of arrests in California. Chavez's
family told Detective Real that Chavez had not come back, was not coming back and
they had no contact information for him. Suspecting that Mrs. Chavez was not being
fully honest with him, Detective Real again conducted multiple stakeouts of the
Perris house.
                The police began their search for Chavez promptly after both the first
and second trials and were continuous in their efforts to locate him. Due diligence
did not require additional efforts by the prosecution to produce Chavez for trial.
                Garcia nevertheless argues that reasonable diligence required the
People to go to greater lengths to keep Chavez from returning to Mexico after the
first trial and, once he had left the country, to bring him back for the second and third
trials. Neither of these arguments is persuasive.
                1. Efforts to Prevent Chavez from "Becoming Absent"
                Garcia contends that reasonable diligence required the People to take
all available steps to prevent Chavez's return to Mexico because he was an essential
witness whom the People knew to be a flight risk with an extensive criminal history
and credibility problems. (People v. Louis, supra, 42 Cal.3d 969.) In Louis, the
missing witness was vital to the prosecution's case -- he was the only witness who
identified the defendant as the shooter. He was also "recognized by all" to be highly
untrustworthy. (Id. at p. 989.) Yet the prosecution released him on his own


                                             13
recognizance after the preliminary hearing; he promptly disappeared. The Supreme
Court held that the trial court improperly permitted the use of the witness's
preliminary hearing testimony in these circumstances. This case is distinguishable.
Chavez was not recognizably untrustworthy; he had testified at both the preliminary
hearing and the first trial without threat of flight. Although he was an important
witness, he was not, like the witness in Louis, the only witness who could identify
Garcia as the shooter; Barbara Ornellas, who testified at all three trials, also
identified Garcia as the shooter. Ballistics evidence tied him to the murder as well.
Chavez's history of arrests for drunk driving and manufacturing methamphetamine
was not, as Garcia argues, a red flag of unreliability that required the People, in the
exercise of reasonable diligence, to make all efforts to keep him from leaving the
country.
              Garcia also contends, in reliance on People v. Roldan (2012) 205
Cal.App.4th 969, that reasonable diligence required the People to take various other
steps to keep Chavez from leaving the United States, such as (1) obtaining an
undertaking for him to appear at trial (Pen. Code, § 1332), (2) holding him as a
material witness until he entered into such an undertaking (id., §§ 1335-1345) or
(3) videotaping a conditional examination for use at the retrial (ibid). All of these
measures are available to the prosecution to secure the attendance of a key witness
whom the prosecution believes will not voluntarily appear and testify.
              Reasonable diligence did not require resort to such measures in Garcia's
case. In Roldan, as in Louis, the missing witness's testimony was the only evidence
implicating Roldan as the shooter. (People v. Roldan, supra, at p. 980.) As
explained above, Chavez's testimony was not the only evidence that tied Garcia to
Roberto's murder. Reasonable diligence did not require resort to such measures in
Garcia's case. Also, there is no evidence that the People knew at the time Chavez
was returned to Mexico that he would not return to testify at the second trial. He had
voluntarily testified at the first trial and the People expected him to return for the
second trial. Only after Chavez had returned to Mexico did the People learn that he


                                            14
was refusing to return to the United States because of death threats. Roldan, like
Louis, is distinguishable.
              Arguably, the People should have served Chavez with a subpoena to
attend the second trial before he left for Mexico in December 2009. Their failure to
do so, however, was not a failure to exercise reasonable diligence in light of the
persistent efforts of the Baldwin Park Police to produce Chavez for the second and
third trials and when hindsight demonstrates that Chavez would not have returned to
the United States to testify in any event because of the death threats he and his family
received after he was deported.
              2. Efforts to Obtain Chavez's Return From Mexico.
              Garcia also contends that reasonable diligence required the People to
seek assistance under the Mutual Legal Cooperation Assistance Treaty of 1988
between the United States and Mexico (27 I.L.M. 443) to secure Chavez's presence at
the second trial. (People v. Sandoval (2001) 87 Cal.App.4th 1425.) This argument is
meritless because invocation of the treaty would have been futile. A request for
assistance under the treaty must be accompanied by information concerning the
whereabouts of the witness. (27 I.L.M., p. 448.) Because neither the Baldwin Park
Police nor the prosecuting attorney had an address for Chavez in Mexico, any request
for assistance would have been rejected. In addition, Articles 8 and 9 of the treaty
are dependent on the consent of the witness.6 Chavez adamantly refused to return to
the United States because his life had been threatened. Reasonable diligence did not
require the People to invoke the treaty because doing so would not have procured
Chavez's presence at the second and third trials in any event.
              "That additional efforts might have been made or other lines of inquiry

              6
                 Article 8 of the treaty provides for the transportation to the United
States of a person in custody in Mexico to testify if the person consents. (27 I.L.M.,
p. 449.) Article 9 allows the prosecution to request the assistance of Mexican
authorities to invite a person in Mexico to come to the United States to testify and to
inform the witness about the extent to which the witness's expenses will be paid.
(Ibid.)

                                          15
pursued" does not change our conclusion that the People exercised reasonable
diligence to produce Chavez for trials two and three. "'It is enough that the People
used reasonable efforts to locate the witness.' [Citation.]" (People v. Valencia
(2008) 43 Cal.4th 268, 293.) The trial court did not err in determining that Chavez
was unavailable as a witness.
C. Reliability of the Prior Testimony
              As explained above, the exception to the confrontation clause for an
unavailable witness only applies if the defendant had "'the right and opportunity to
cross-examine the [witness] with an interest and motive similar to that which he has
at the hearing.' [Citation.]" (People v. Louis, supra, 42 Cal.3d at p. 983; Barber v.
Page, supra, 390 U.S. 719 at p. 722.) In the cases Garcia relies on – Louis, Roldan
and Sandoval – the prior testimony the prosecution sought to use was preliminary
hearing testimony. A defendant's interest and motive for cross-examining a witness
at a preliminary hearing may differ from those that guide cross-examination at trial.
In Louis, for example, our Supreme Court observed that defense counsel at the
preliminary hearing cross-examined the absent witness with an "interest and motive
peculiar to that early stage in the proceedings – viz., to attempt to tie [the witness]
down, in the interests of pretrial discovery . . . ." (People v. Louis, supra, at p. 983.)
Here, the testimony of Chavez used at the third trial was his testimony from the first
trial. Garcia does not argue that his interest and motive for cross-examining Chavez
was any different at the third trial than at the first. The record indicates that Garcia's
counsel aggressively cross-examined Chavez in the first trial, making extensive use
of the transcripts of Chavez's two police interviews for impeachment, as explained
more fully below. Because Chavez was properly found to be unavailable and his
testimony from the first trial was reliable, the trial court did not err in permitting its
reading.
D. Admission of the Two Investigation Interviews as Prior Consistent Statements.
              At Garcia's first trial, his counsel vigorously cross-examined Chavez
using statements he made in two pretrial interviews, one with police and one with


                                             16
police and a deputy district attorney. Garcia's counsel repeatedly called attention to
discrepancies between Chavez's trial testimony and the earlier statements. He also
implied, by his closing question, that Chavez was testifying differently at trial
because the People had offered him immunity in exchange for favorable trial
testimony. At the third trial, following the reading of Chavez's testimony from the
first trial, the People asked that the transcripts of the interviews be read to the jury as
prior consistent statements. The trial court granted the motion and permitted the jury
to hear both interviews. Garcia contends that the interviews should have been
received only for impeachment, if at all.7 His argument is meritless.
              Evidence Code section 1236 permits the admission of a prior consistent
statement as substantive evidence if the statement is offered in compliance with
Evidence Code section 791. Evidence Code section 791, subdivision (b) permits the
admission of a prior consistent statement when the opponent expressly or impliedly
claims that the witness's testimony at the hearing is recently fabricated and the prior
statement was made before the motive to be untruthful arose. Because Garcia's
counsel implied that a promise of immunity made after the police interviews
motivated Chavez to lie at trial, Evidence Code section 791 permitted the use of the
interviews as substantive evidence. (See Cal. Law Revision Com. com. to Evid.
Code, § 1236.)
                                   IV. Hearsay Issues
A. Hearsay Testimony of Norberto Lozano and Herminio Zendejas Received
as Past Recollection Recorded.
              Shortly after the murder, Detective Lanza of the Baldwin Park Police
interviewed Norberto Lozano (Norberto) and Herminio Zendejas. Both gave
statements to Detective Lanza, which he included in a written report. Both
statements said that Garcia and another man were visiting from the Fresno area on

              7
                 Garcia's argument that the interviews should not have been received
at all because the trial court improperly permitted Chavez's testimony from the first
trial to be read at the third trial is disposed of in section III, subsection B., ante.

                                            17
September 8, 1976, and spent the night at Zendejas's house. Garcia was driving his
green Pontiac.
               At the time of the third trial, September 20, 2010, neither Norberto nor
Zendejas recalled having given a statement to the police in September 1976, although
Norberto testified that, if he had given a statement, he would have been "100 percent"
truthful. When the People were unable to refresh the witnesses's recollections with
Detective Lanza's statements, the trial court allowed Detective Lanza's statements as
past recollection recorded.
               We review evidentiary rulings, including those involving hearsay
issues, for abuse of discretion. (People v. Zambrano (2007) 41 Cal.4th 1082, 1144.)
Garcia contends that the trial court abused its discretion by admitting Norberto's and
Zendejas's statements. We agree. In the case of Norberto's statement, however,
Garcia waived the right to appeal that error because he did not make the objection in
the trial court. (People v. Mickey (1991) 54 Cal.3d 612, 689.) Garcia also waived his
claim that admission of the statements violated his state and federal due process
rights. (People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3.) In any event, the errors
were harmless.
               As a substantive matter, the trial court erroneously admitted the
statements as past recollection recorded. The statements were hearsay, offered to
prove the truth of the matter stated, i.e., that Garcia was in Baldwin Park on
September 9, 1976. Neither witness testified that "the statement [contained in the
writing] was a true statement of such fact," as required by Evidence Code Section
1237, subdivision (a)(3). Because neither witness recalled making a statement to the
police 35 years earlier, neither could competently testify that the statement written
then was true. Nor was there any evidence that either witness was deliberately
evasive or that their asserted memory lapses were untrue. (People v. Parks (1971) 4
Cal.3d 955, 960.) Norberto's testimony that, if he had given a statement, he would
have been truthful, did not amount to testimony that the statement in the writing was
in fact true, as the statute requires.


                                           18
              Nor were the statements properly received as business records, as the
People urge. The business records exception "'does not make [a] record admissible
when oral testimony of the same facts would be inadmissible.'" (Behr v. County of
Santa Cruz (1959) 172 Cal.App.2d 697, 705.) Had Detective Lanza attempted to
testify as to what either Norberto or Zendejas told him, his testimony would have
been excluded as hearsay. His written statement did not salvage the testimony.
              These errors were harmless. Before a conviction can be reversed based
upon the erroneous admission of evidence in a criminal prosecution, we must
conclude that it is reasonably probable that, in the absence of the erroneously
admitted evidence, a result more favorable to the defendant would have been
reached. (People v. Champion (1995) 9 Cal.4th 879, 923.) The substance of both
Norberto's and Zendejas's statements was that the two witnesses saw Garcia in
Baldwin Park on the day of the homicide. Although part of Garcia's defense was that
he was not in Baldwin Park that day, the statements of Norberto and Zendejas only
indirectly corroborated the more probative testimony of Chavez and Barbara Ornellas
that they saw Garcia at the actual scene of the crime. We cannot conclude that the
jury would have reached a different result if the statements had been excluded.
(People v. Sanders, supra, 11 Cal.4th at p. 510, fn. 3.) The harmlessness of the error
also defeats Garcia's claims that the trial court's erroneous ruling deprived him of a
fair trial under federal and state due process (People v. Partida (2005) 37 Cal.4th
428, 436) (which claims were waived in any event, as discussed above), and that his
counsel's failure to object to the admission of the evidence on due process grounds
deprived him of effective assistance of counsel. (People v. Waidla (2000) 22 Cal.4th
690, 718.)
B. Hearsay Statements About the Location of Appellant's Car
              Rafael Ramos Lozano (Rafael) testified for the People. On direct
examination he was asked: "At some point did you have a conversation with Mr.
Zavala about the green Pontiac after your cousin was murdered?" Rafael answered,
"No." The prosecutor then asked: "Do you recall telling Detectives Harvey and Real


                                           19
that Rudolfo Zavala told you that the defendant called him a couple of days after the
murder and told him where he could pick up the car?" Rafael responded, "Yes." The
trial court permitted Rafael to testify about these conversations over Garcia's hearsay
objection.
              The trial court also admitted a police report made by Detective Lanza
on September 20, 1976, that set forth the following events: Detective Lanza received
a phone call from Zavala; Zavala said he received a call from Abdon Bustos
approximately one week after the murder in which Bustos told Zavala that Garcia's
car was parked on the United States side of the border near Tijuana and that Zavala
could pick it up. Zavala also stated that Bustos told him that Garcia had telephoned
him "possibly from [Tijuana]." The trial court received Detective Lanza's report over
Garcia's hearsay objection.
              1. Zavala Statement
              "[M]ultiple hearsay is admissible for its truth only if each hearsay layer
separately meets the requirements of a hearsay exception.' [Citation.]" (People v.
Arias (1996) 13 Cal.4th 92, 149.) Garcia's statement to Zavala – the first level of
hearsay – meets the exception for a party statement. (Evid. Code, § 1220.) Zavala's
statement to Rafael about the location of the car, however, is not subject to any
hearsay exception. Evidence Code section 770 only excepts a statement "by a
witness that is inconsistent with any part of his testimony at the hearing." Zavala's
statement to Rafael was not a prior statement of the witness, Rafael. Because the
People offer no other exception for Zavala's hearsay statement, admission of the
multiple levels of hearsay was error.
              2. Hearsay Statements of Abdon Bustos Admitted Through Detective
Lanza's Report.
              The trial court found that the hearsay statements from Bustos to Zavala
and from Zavala to Detective Lanza, both of which were contained in Detective
Lanza's police report, were prior inconsistent statements. Both findings were error.
              Bustos's statement to Zavala was inadmissible as a prior inconsistent


                                          20
statement because Bustos did not testify at the trial. Evidence Code section 1235
permits admission of inconsistent statements made by a witness who actually testifies
at the hearing. (People v. Williams (1976) 16 Cal.3d 663, 669.) Because Bustos did
not testify at trial, the exception does not apply to him. Turning to Zavala's statement
conveying Bustos's statement to Detective Lanza, the trial court found that Zavala's
statement was inconsistent with a statement of Zavala that he did not know Bustos.
Zavala did so testify. Zavala's prior statement that he did not know Bustos, however,
is not sufficiently inconsistent with his statements that (1) Bustos told him where to
find the car and (2) Garcia had called Bustos "possibly from [Tijuana]" to justify the
admission of the latter statements as prior inconsistent statements. Finally, Detective
Lanza's report was not admissible as a business record, as explained in section IV,
subsection A., ante. (Behr v. County of Santa Cruz, supra, 172 Cal.App.2d at p.
705.)
              Although the hearsay statements were improperly admitted, the errors
were harmless and did not deprive Garcia of either his constitutional due process
rights or effective assistance of counsel under the standards set forth in section IV.,
subsection A., above. Other evidence tied Garcia to the green Pontiac left at the
border. Zavala testified that he cosigned for Garcia when Garcia purchased the green
Pontiac. Chavez also identified Garcia's green Pontiac and testified that he drove it
to San Ysidro on Garcia's orders. Chavez also testified that Garcia told him to leave
the green Pontiac in San Ysidro before they crossed over into Mexico. It is not
reasonably probable the verdict would have been more favorable to Garcia absent the
trial court's errors in admitting the hearsay statements of Zavala and Bustos.]]
                                 V. Sentencing Errors
              Garcia asserts, and the People acknowledge, that the trial court made
three sentencing errors. We agree and modify those errors as shown below.
                                     DISPOSITION
              (1) The $200 parole revocation fee is stricken; (2) the sentence of life
without the possibility of parole is amended to life in prison to reflect the oral


                                            21
pronouncement of sentence (People v. Mitchell (2001) 26 Cal.4th 181, 185); and
(3) Garcia's custody credits are amended to 897 days, including the date of arrest and
the date of sentencing.
              We direct the superior court to prepare an amended abstract of
judgment accordingly, and to send a certified copy to the Department of Corrections
and Rehabilitation. As modified, the judgment is affirmed.
              CERTIFIED FOR PARTIAL PUBLICATON.




                                          O'DONNELL, J.*


We concur:



              YEGAN, Acting P. J.



              PERREN, J.




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

                                          22
                             Mike Camacho, Judge
                     Superior Court County of Los Angeles
                      ______________________________


             Donald R. Tickle, 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, Senior Assistant Attorney General,
Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Rama R. Maline,
Deputy Attorney General, for Plaintiff and Respondent.
