Filed 12/9/16 (unmodified opn. attached)

                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                           DIVISION THREE

THE PEOPLE,

    Plaintiff and Respondent,                         G050268

        v.                                            (Super. Ct. No. 13WF0628)

CHUNCEY TARAE GARCIA,                                 ORDER MODIFYING OPINION
                                                      AND DENYING PETITION FOR
    Defendant and Appellant.                          REHEARING; NO CHANGE IN
                                                      JUDGMENT


                 It is ordered that the opinion filed herein on October 31, 2016, be modified
as follows:
                 1. On page 6, footnote 6 is deleted and replaced with the following new
footnote 6:
                                   6
                                    The Attorney General argues that the case
                          must be remanded to allow the court to properly
                          impose a sentence on the pimping count and then stay
                          execution of the sentence. Defendant does not object
                          to the Attorney General’s request. We will remand the
                          case to the trial court to correct defendant’s sentence
                          by imposing a sentence on the pimping count, and then
                          staying execution of that sentence.
                 2. On page 19, the disposition paragraph is deleted and replaced with the
following new disposition paragraph:
                        The judgment is affirmed. The matter is remanded to the
               trial court to correct defendant’s sentence by imposing a
            sentence on the pimping count (count 2), and then staying
            execution of that sentence.

             These modifications do not effect a change in the judgment. The petition
for rehearing is DENIED.




                                               FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



IKOLA, J.




                                           2
Filed 10/31/16; pub. order 11/15/16 (see end of opn.) (unmodified version)




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                              DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                                     G050268

        v.                                                        (Super. Ct. No. 13WF0628)

CHUNCEY TARAE GARCIA,                                             OPINION

    Defendant and Appellant.



                 Appeal from a judgment of the Superior Court of Orange County,
Michael J. Cassidy, Judge. Affirmed.
                 Tonja R. Torres, under appointment by the Court of Appeal, for Defendant
and Appellant.
                 Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Alana
Butler and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *             *              *
                                       INTRODUCTION
                Defendant Chuncey Tarae Garcia was convicted of human trafficking and
pimping a minor. Defendant’s 14-year-old victim (the minor) did not testify at
defendant’s trial. Instead, the videotape of the minor’s conditional examination was
played for the jury. Defendant argues that his constitutional rights to confrontation,
cross-examination, and due process were violated. We disagree, and affirm the
judgment.
                The trial court did not err in releasing the minor from commitment as a
material witness, under Penal Code section 1332, after permitting her conditional
examination to be taken. Further, the court did not err in determining the minor was
unavailable at trial, and in denying defendant’s request for the appointment of an expert
witness to review the minor’s records and the recommendation of the minor’s therapist.


                     STATEMENT OF FACTS AND PROCEDURAL HISTORY
                In February 2013, the minor was 14 years old, and living in Scottsdale,
Arizona. She ran away from home, and obtained a job at a strip club by claiming she was
19 years old.
                At the club, the minor met Cierra Robinson. Robinson told the minor she
could make more money working as a prostitute than she could as a stripper. The minor
told Robinson she did not want to engage in prostitution.
                A couple of days later, Robinson introduced the minor to defendant, whom
Robinson called Slim or King Slim. Defendant told the minor she was “stunning” and
“beautiful,” and he had a great opportunity for her that would involve talking to guys on
the phone. Defendant drove the minor and Robinson to a hotel.
                Defendant was initially nice and sweet to the minor. Defendant gave her
alcohol and marijuana, and told her he had a money-making opportunity for her.

                                              2
Defendant told the minor she was going to work for him as a prostitute. Defendant told
her she was not allowed to leave and could not tell anyone else. The minor was scared,
and afraid defendant would hit her. She did not try to leave because she “was terrified.”
              Defendant gave the minor a notebook with the prices for various sex acts
and what to say when answering the phone.1 Defendant told her to smile and wave at
people on the street, and that when they pulled over, she would be paid to have sex with
them. Defendant also instructed her not to look at or speak to other African-American
men,2 and not to call defendant anything other than Daddy or Pimpin. Defendant told the
minor that if she violated the rules, she would be “in trouble” and defendant would hit
her.
              While still in Arizona, defendant provided the minor with a cell phone,3 and
caused her phone number and picture to be posted on Web sites.4 She received calls in
response to the online advertisements, but avoided the offers to engage in sex for money
by telling defendant that the callers were African-American men or pimps. She was
afraid of defendant, and had seen him hit Robinson. The minor never tried to use her cell
phone to call the police, and even when defendant left her alone with Baby, another girl
working for defendant as a prostitute, the minor did not try to leave or to ask someone for
help.
              Two or three days after the minor met defendant, they drove to California
with Robinson and Baby. The minor did not want to work as a prostitute, but she was
afraid and felt as if she had no choice. She consumed alcohol and smoked marijuana
purchased by defendant.




              1
                  Pages from the notebook were admitted at trial as exhibit No. 2.
              2
                  Defendant is African-American.
              3
                  A photograph of the cell phone was admitted at trial as exhibit No. 3.
              4
                  The Web site postings were admitted at trial as exhibit No. 4.

                                              3
              The minor worked as a prostitute while in Orange County. She walked the
streets within boundaries set by defendant so he would know where she was. She was
required to regularly check in with defendant, and to text defendant when she had a
customer and when she was done. The minor sometimes took her customers to a hotel
room paid for by defendant, and sometimes had her “dates” in a car.
              The minor gave all the money she earned by working as a prostitute to
defendant. Each of the girls was expected to earn $200 per day; if she did not, she would
not be allowed to eat dinner.
              On two occasions, the minor had sex with defendant. Although she did not
want to do so, she was too scared to tell him no or stop it from happening.
              About 2:00 a.m. on March 1, 2013, Garden Grove Police Officer Michael
Viscomi stopped the car that defendant was driving. The minor was in the backseat
behind the driver’s seat. Viscomi noticed that the minor appeared very young, although
she initially lied about her name and age. After another officer moved the minor away
from defendant, Robinson, and Baby, the minor gave the officer her mother’s name and
phone number.
              The minor was arrested. She began to cry in the backseat of the patrol car,
and told Viscomi she lied to him because defendant had told her that he would hit her in
the face if she “crack[ed].” From the police station, the minor was transported to the
Orangewood Children and Family Center, from which she ran away on at least two
occasions.
              Defendant told the police he went by the name “Slim.” When stopped by
Viscomi, defendant had $353 in cash; none of the girls had any money. In the hotel room
that defendant was renting, the police found a laptop computer with a user account for
“King Slim, the Boss.” The computer also had a file containing 19 photographs of the
minor in sexually suggestive poses. In its browsing history, the computer had the online
advertisements featuring the minor.

                                             4
              Viscomi questioned defendant after he had been stopped. Defendant said
he was in California to take care of his traffic tickets, to visit his children in Los Angeles,
and to return to caring for his grandmother. Defendant told Viscomi he had met the
minor through Robinson, who was working with her at a strip club. Defendant also
stated the minor had told him she was 19 years old, and he thought she must be because
she could not otherwise have worked in a strip club. Defendant was suspicious because
the minor spoke and acted younger, but she continued to tell him she was 19 years old.
              Defendant admitted paying for the hotel rooms, and paying for the minor’s
cell phone. Defendant denied knowing anyone was engaged in prostitution, or getting
money from the minor. Defendant denied forcing the minor to do anything she did not
want to do, and denied that she gave him any money over the last few days.
              On April 30, 2013, a petition for commitment of the minor, pursuant to
Penal Code section 1332, was filed under seal. The requested order was signed and filed
under seal on the same day. The minor was held in custody at juvenile hall. On May 2,
the prosecutor filed a motion for conditional examination of a material witness, which
was granted. The conditional examination was conducted on May 17. At the conclusion
of the conditional examination, the section 1332 hold was lifted, and the minor was
ordered to return to court on June 20, which was the date then scheduled for trial.
              At the request of defendant, the trial was continued multiple times, and a
jury was ultimately sworn in on March 3, 2014. The minor did not appear to testify at
trial. The trial court found the minor was unavailable as a witness, and a videotape of her
testimony from the conditional examination was played for the jury.
              At trial, the prosecution offered the testimony of an expert witness
regarding pimping and human trafficking. The expert’s testimony was consistent with
the story the minor had told.
              Defendant was convicted of human trafficking of a minor (Pen. Code,
§ 236.1, subd. (c)(1)), and pimping a minor under 16 years of age (id., § 266h,

                                               5
subd. (b)(2)). The jury found true that the human trafficking was accomplished by means
of force or fear. (Id., § 236.1, subd. (c)(2).)5 Defendant admitted the truth of allegations
of two prison priors under Penal Code section 667.5, subdivision (b).
                 The trial court sentenced defendant to 17 years to life: 15 years to life for
the human trafficking offense, and one year for each prison prior. The court stayed
sentencing on the pimping count, pursuant to Penal Code section 654.6


                                           DISCUSSION
                                                I.
       THE TRIAL COURT DID NOT ERR IN RELEASING THE MINOR FROM COMMITMENT
                              AS A MATERIAL WITNESS.

                 Defendant argues that his rights to confrontation, cross-examination, and
due process were violated because the trial court ordered a conditional examination of the
minor, rather than continuing to detain her pursuant to Penal Code section 1332 until the
time of trial.


                                                A.
                                    Procedural Background
                 Shortly after defendant’s preliminary hearing, the trial court granted the
prosecution’s petition for an order committing the minor pursuant to Penal Code

                 5
                 The jury was unable to reach a verdict on a third count of forcible rape.
The trial court declared a mistrial, and then granted the prosecution’s motion to dismiss
that count.
              6
                 The Attorney General argues that the case must be remanded to allow the
court to properly impose a sentence on the pimping count and then stay execution of the
sentence. The Attorney General did not file a cross-appeal, and therefore cannot now
claim error in connection with defendant’s appeal. (Code Civ. Proc., § 906; Estate of
Powell (2000) 83 Cal.App.4th 1434, 1439; Building Industry Assn. v. City of Oceanside
(1994) 27 Cal.App.4th 744, 758, fn. 9.) This determination is without prejudice to a
proper request to the trial court for a correction of the sentence after the remittitur issues.

                                                6
section 1332.7 The court found the minor to be a material witness, who would not return
to testify at trial unless an undertaking was provided, and that it was impossible for the
minor to provide such an undertaking.
               The prosecution moved for an order for a conditional examination of the
minor. “When a material witness for the defendant, or for the people, is about to leave
the state, . . . the defendant or the people may apply for an order that the witness be
examined conditionally.” (Pen. Code, § 1336, subd. (a).) Counsel for the minor had
advised the trial court of the desire to have the minor “released as quickly as possible.”
Defendant’s counsel asked that the court continue to hold the minor pursuant to Penal
Code section 1332, rather than conduct a conditional examination. Counsel argued that
he could not adequately prepare for a conditional examination in the time provided by the
court, which would deprive defendant of his right of cross-examination. The court
granted the order for a conditional examination, which was scheduled for 10 days after
the hearing.



               7
                  In relevant part, Penal Code section 1332 provides: “(a) . . . [W]hen the
court is satisfied, by proof on oath, that there is good cause to believe that any material
witness for the prosecution or defense, whether the witness is an adult or a minor, will not
appear and testify unless security is required, at any proceeding in connection with any
criminal prosecution . . . , the court may order the witness to enter into a written
undertaking to the effect that he or she will appear and testify at the time and place
ordered by the court or that he or she will forfeit an amount the court deems proper. [¶]
(b) If the witness required to enter into an undertaking to appear and testify, either with or
without sureties, refuses compliance with the order for that purpose, the court may
commit the witness, . . . if a minor, to the custody of the probation officer or other
appropriate agency, until the witness complies or is legally discharged. [¶] (c) When a
person is committed pursuant to this section, he or she is entitled to an automatic review
of the order requiring a written undertaking and the order committing the person, by a
judge or magistrate having jurisdiction over the offense other than the one who issued the
order. This review shall be held not later than two days from the time of the original
order of commitment. [¶] (d) If it is determined that the witness must remain in custody,
the witness is entitled to a review of that order after 10 days.” (Pen. Code, § 1332,
subds. (a)-(d).)

                                              7
                                              B.
                                     Standard of Review
              Neither party addresses the standard of review we should apply in this case.
We have found no published case setting forth the standard of review for an order
releasing a material witness from commitment pursuant to Penal Code section 1332. We
believe, based on analogous issues in other cases, that the order should be reviewed for
abuse of discretion.
              In People v. Bunyard (2009) 45 Cal.4th 836, 851, the Supreme Court
concluded that the trial court’s decision to release a material witness on his or her own
recognizance should be reviewed for abuse of discretion: “[T]he decision to keep a
material witness in custody involves balancing that right [of confrontation] against the
substantial due process right of the witness, who has not been charged with a crime, to
not be unreasonably incarcerated. . . . [T]he trial court is in a better position than an
appellate court to ascertain whether and to what extent a witness is a flight risk, and the
appropriate measures to reduce that risk. This determination involves in part an
observation of the witness’s credibility and demeanor that the trial court is uniquely in a
position to make. Therefore, although we conduct independent review in the sense that
we independently apply an ‘objective, constitutionally based legal test’ to certain facts
[citation], we also give due deference to the trial court’s determination of a witness’s
flight risk, and will second-guess that determination only when it is clear from the record
that it was objectively unreasonable.”
              Further, in In re Francisco M. (2001) 86 Cal.App.4th 1061, 1079, the
appellate court held that the trial court has discretion to determine whether to require a
witness to post security under Penal Code section 1332 to secure his or her attendance at
trial. Because the trial court must consider the same factors when any detention is
reviewed two days later, and then every 10 days thereafter (Pen. Code, § 1332, subds. (c),

                                               8
(d); In re Francisco M., supra, at p. 1079), the abuse of discretion standard should also
apply to the trial court’s “consider[ation of] any relevant changes in circumstances in
determining whether to continue the detention, including whether the witness credibly
has changed his attitude toward appearing at trial, or toward accepting a lesser, feasible
alternative to custody” (In re Francisco M., supra, at p. 1079).


                                               C.
                                          Analysis
              We begin our analysis by reviewing the basic constitutional principles at
issue. “The confrontation clauses of both the federal and state Constitutions guarantee a
criminal defendant the right to confront the prosecution’s witnesses. [Citations.] That
right is not absolute, however. An exception exists when a witness is unavailable and, at
a previous court proceeding against the same defendant, has given testimony that was
subject to cross-examination. Under federal constitutional law, such testimony is
admissible if the prosecution shows it made ‘a good-faith effort’ to obtain the presence of
the witness at trial.” (People v. Cromer (2001) 24 Cal.4th 889, 892; see Crawford v.
Washington (2004) 541 U.S. 36, 53-54.)
              Evidence Code section 1291, subdivision (a) creates an exception to the
confrontation right for prior recorded testimony: “Evidence of former testimony is not
made inadmissible by the hearsay rule if the declarant is unavailable as a witness and:
[¶] . . . [¶] (2) The party against whom the former testimony is offered was a party to the
action or proceeding in which the testimony was given and had the right and opportunity
to cross-examine the declarant with an interest and motive similar to that which he has at
the hearing.” (Evid. Code, § 1291, subd. (a)(2).) A witness is unavailable if he or she is
“[a]bsent from the hearing and the court is unable to compel his or her attendance by its
process.” (Evid. Code, § 240, subd. (a)(4).)



                                               9
              The decision to detain a material witness involves weighing important
competing rights. “Article I, section 10 of the California Constitution guarantees
‘[w]itnesses may not be unreasonably detained.’ This constitutional protection is
balanced against ‘“[t]he duty [of all citizens] to disclose knowledge of [a] crime . . . .”’
[Citation.] This duty is considered to be ‘“so vital that one known to be an innocent may
be detained, in the absence of bail, as a material witness. [Citations.]”’ [Citation.] [¶]
To enforce this duty, [Penal Code] section 1332 allows for the incarceration of a person
determined to be a material witness to secure his or her presence at trial.” (In re D. W.
(2004) 123 Cal.App.4th 491, 497-498.)
              “The unique posture of the material witness counsels special concern that
the procedures leading to the determination whether he should be detained are fair.
Certainly the witness’s right under article I, section 10 [of the California Constitution],
not to be ‘unreasonably detained,’ requires procedural safeguards allowing the interests
of the witness to be heard in conjunction with the interests of the state. Further, the
question whether and how long to detain a witness consistent with this right cannot be
determined according to mechanical rules. As with the scope of other constitutional
provisions, the decision must be based on all the relevant circumstances of the particular
case.” (In re Francisco M., supra, 86 Cal.App.4th at pp. 1075-1076.) The unjustified
deprivation of a material witness’s liberty is a violation of the due process clauses of the
federal and state Constitutions. (In re D. W., supra, 123 Cal.App.4th at p. 498.)
              In In re Francisco M., supra, 86 Cal.App.4th at page 1076, the appellate
court identified a nonexclusive list of factors for the trial court to consider in deciding
whether to detain a material witness pursuant to Penal Code section 1332, to protect “the
interests of the various parties—the prosecution, the defendant in the underlying criminal
case, and the witness.” Those factors are as follows: “(1) The nature of the charges in
the underlying criminal prosecution. The more serious the charges, the weightier the
state’s interest in ensuring the witness’s attendance. [¶] (2) The nature of the witness’s

                                              10
proposed testimony. . . . To the extent possible, the court should consider the importance
of the individual witness to the prosecution case. [Citation.] [¶] (3) The length of the
proposed detention. It is true that a ‘[d]etention is not unreasonable . . . merely because it
may be prolonged.’ [Citation.] However, the longer the expected detention, the greater
the showing required by the state to justify it. . . . [¶] (4) Evidence relevant to whether the
witness will or will not appear and testify. Such considerations may include
employment, residence, and other community ties. It may also include the witness’s prior
statements and conduct. . . . [¶] (5) The age and maturity of the witness. Detention of a
minor witness requires greater scrutiny than that of an adult. . . . [¶] (6) The harm to the
witness and his family flowing from incarceration. . . . There are perhaps countless ways
incarceration may affect the witness. The purpose of detention is not to punish for a prior
unwillingness to cooperate, though certainly the extent of unwillingness is an appropriate
factor to consider, but to ensure that the witness will be present at trial. Punishment of
the witness not being a factor, the prejudice to the witness and his family must be
considered. [¶] (7) The witness’s financial resources. Should security be required, the
amount must be reasonable, calculated to secure the witness’s appearance at trial. . . . [¶]
(8) The circumstances of any continuance of the underlying prosecution that will prolong
the incarceration. . . . As indicated by Ex Parte Dressler [(1885)] 67 Cal. 257, prolonging
a detention by a continuance of the trial without adequate cause might in itself violate
article I, section 10 of the California Constitution. [¶] (9) Whether steps short of
incarceration are feasible and adequate to protect the interests of the prosecution, the
witness, and the defendant in the underlying prosecution. . . . [T]he court may consider
whether circumstances exist in which a conditional examination may be held under
[Penal Code] section 1335 et seq. It may well be that, because of currently existing rules,
resorting to a conditional examination will prove problematic. There must first be an
adequate showing justifying a conditional examination under [Penal Code] sections 1335
and 1336. Also, in many instances, a detained material witness can be expected in his

                                              11
testimony to recant earlier statements allegedly given to law enforcement. If a
conditional examination is conducted, only the witness would testify. With respect to use
of the conditional examination at trial, the witness would be a hearsay declarant. If the
witness, upon being confronted with the prior inconsistent statements at the conditional
examination, adopted and reaffirmed them, the jury at the trial could consider the
statements for their truth. [Citation.] However, if the witness denied the prior
statements, any such statements later introduced at trial could be considered only as
relevant to impeach the witness as a hearsay declarant. [Citation.] The statements could
not be used to prove the truth of the matter asserted in the statements. [Citations.] Since
the inconsistent statements could not be considered to prove the guilt or innocence of the
accused, use of a conditional examination may be inadequate to serve the interests of
justice. The problem might be resolved if the Legislature were to amend the Evidence
Code to permit a detained witness’s prior inconsistent statements to be considered for
their truth at trial, assuming the witness was properly confronted with them at the
conditional examination under Evidence Code section 770, subdivision (a).” (In re
Francisco M., supra, at pp. 1076-1079, fns. omitted.) The trial court must consider, at
the two-day review hearing, and then at a hearing every 10 days thereafter, whether,
because of “any relevant change in circumstances,” the detention should be continued,
ended, or revised. (Id. at p. 1079.)
              In this case, the trial court fully considered all relevant factors in deciding
to commit the minor, and then to release her from Penal Code section 1332 commitment
and order a conditional examination. The court did not abuse its discretion, and we
therefore affirm the order releasing the minor from commitment.
              Defendant contends the list of factors set forth in In re Francisco M. is not
the proper test. Rather, defendant suggests that in People v. Bunyard, supra, 45 Cal.4th
at pages 851 and 854, the court focused only on the length of the witness’s detention and
whether the witness had a strong incentive to flee. When considered within the specific

                                              12
context of this case, we do not agree that focusing on those two factors would require
reversal. First, while it is true that at the time of the conditional examination, the minor
had only been subject to commitment for 17 days, we do not agree that this is a
de minimis time, in light of the minor’s young age and need for psychological treatment.
Further, if we were to look at the time the trial actually started, the minor would have
been subject to commitment for more than 10 months. Second, the entire point of the
conditional examination was to allow the minor to “flee the jurisdiction,” in the sense that
she would be returning to her home in Arizona to obtain necessary therapy and treatment.
              Defendant cites People v. Roldan (2012) 205 Cal.App.4th 969, 981, for the
proposition that the minor’s rights would not have been violated by a 60-day commitment
pursuant to Penal Code section 1332. We believe that case is distinguishable. After one
of the victims of a shooting testified at the defendant’s preliminary hearing, the victim
was released to the federal authorities and deported to Mexico. (People v. Roldan, supra,
at p. 976.) The trial court permitted the preliminary hearing testimony to be read to the
jury, based on the court’s finding that the victim was unavailable. (Id. at pp. 977-978.)
This court reversed the guilty verdict because the prosecution had failed its duty to “‘“use
reasonable means to prevent a present witness from becoming absent.” [Citation.] If the
prosecution fails in this latter duty, it does not satisfy the requirement of due diligence.
[Citation.]’ [Citations.]” (Id. at p. 980.) Significantly, one of the specific ways this court
found would have satisfied the duty to protect the defendant’s right to confrontation was
to videotape the victim’s preliminary hearing testimony; here, the conditional
examination was videotaped under the same statutory guidelines as were mentioned in
the People v. Roldan case. (Id. at pp. 980-981; see Pen. Code, §§ 1335-1345.)
              Defendant argues that he was prejudiced by the trial court’s refusal, on the
day of the conditional examination, to reconsider his objections. When the trial court
granted the order for a conditional examination, Judge Gregg L. Prickett stated: “The
court’s going to overrule the objections without prejudice. You may make those

                                              13
objections more specifically before this court on that Friday. It will be the first matter I
call that Friday morning. I will be holding a courtroom, but I am not going to require
another person to get up to speed on the unique specifics of what’s going on here.” On
the day of the conditional examination, however, Judge William R. Froeberg refused to
consider defendant’s renewed objections to the examination. The power of one judge to
vacate an order made by another judge is strictly limited, so as to “ensure the orderly
administration of justice.” (In re Alberto (2002) 102 Cal.App.4th 421, 427.) The two
grounds authorizing one judge to reconsider the order of another judge—where the first
judge is unavailable, and where the first order was made through inadvertence, mistake,
or fraud (id. at p. 430)—have not been proven here. Moreover, defendant fails to show
that anything had changed between the time that Judge Prickett ordered the conditional
examination, and the time the examination commenced before Judge Froeberg.
              Defendant argues that the court erred in granting the conditional
examination because the minor was not “about to leave the state,” as provided by Penal
Code section 1336, subdivision (a). Because the court entered the order granting the
conditional examination while the minor was committed to the juvenile hall pursuant to
Penal Code section 1332, defendant argues the conditional examination order was
invalid. Defendant’s argument would prevent a court from ever releasing a witness in
favor of that witness’s testimony by means of a conditional examination, no matter how
long the commitment lasted.
              We reject defendant’s argument that the prosecution sought a conditional
examination of the minor for the purpose of obtaining her testimony before the defense
had adequate time to prepare, or in violation of Penal Code section 1341, which
authorizes the trial court to deny a request for conditional examination if it is sought “to
avoid the examination of the witness at the trial.” Defendant offers no evidence
supporting this argument. To the contrary, there is ample evidence that the prosecution
sought the conditional examination so that the minor, a 14 year old who had been the

                                              14
victim of a sex crime, could be returned to her home to receive necessary therapy, rather
than housed in juvenile hall where necessary services were unavailable.


                                              II.

                       THE TRIAL COURT DID NOT ERR IN ADMITTING
                            THE CONDITIONAL EXAMINATION.

              Defendant also argues that the trial court erred by admitting the minor’s
testimony from the conditional examination at trial. At a hearing at the start of trial, the
court (1) denied defendant’s motion under Evidence Code section 730 for the
appointment of a psychiatrist or psychologist to review the minor’s medical records;
(2) found that the minor was unavailable to testify, pursuant to Evidence Code
section 240, subdivision (a)(3); and (3) granted the prosecution’s motion to allow into
evidence the minor’s conditional examination testimony.8


                                              A.
                                     Standard of Review
              The trial court’s order on a motion to allow a conditional examination to be
admitted at trial is reviewed for abuse of discretion. (People v. Jurado (2006) 38 Cal.4th
72, 114; People v. Cadogan (2009) 173 Cal.App.4th 1502, 1512-1513.)


                                              B.
            Refusal to Appoint Expert Pursuant to Evidence Code Section 730
              “When it appears to the court, at any time before or during the trial of an
action, that expert evidence is or may be required . . . by any party to the action, the court
. . . on motion of any party may appoint one or more experts to investigate, to render a

              8
               The transcript of the hearing was sealed. This opinion will only
summarize the testimony and arguments of counsel.

                                              15
report as may be ordered by the court, and to testify as an expert at the trial of the action
relative to the fact or matter as to which the expert evidence is or may be required.”
(Evid. Code, § 730.) We review the trial court’s refusal to appoint an expert for
defendant for abuse of discretion. (People v. Hajek and Vo (2014) 58 Cal.4th 1144,
1255.)
              “Evidence Code section 730 provides for appointment of ancillary services
at public expense for indigent criminal defendants in noncapital cases only for purposes
of defense at trial on the issue of guilt.” (People v. Stuckey (2009) 175 Cal.App.4th 898,
908.) “The ability to prepare a defense to criminal charges is the touchstone of the right
to appointment of defense experts. A trial court must appoint an expert for a defendant
when necessary to address what is ‘likely to be a significant factor at trial.’ [Citation.]
Thus, the test for constitutional entitlement to appointment of defense experts focuses on
whether a defendant requires assistance on an issue relating to guilt. Except for the
penalty phase of capital cases, entitlement to defense experts is a right to prepare a
defense to the criminal charges.” (Id. at p. 915.)
              Defendant sought the appointment of an expert psychiatrist or psychologist
to assist in the review of the records provided by the minor’s therapist. The therapist was
neither a psychologist nor a psychiatrist. The therapist’s written report and testimony
explained why the therapist felt it would not be in the minor’s best interests to travel to
California to testify at defendant’s trial. Defendant offered no evidence that the
assistance of an expert witness was necessary to review and interpret the opinions of the
minor’s therapist. Further, the minor’s unavailability was not an issue relating to
defendant’s guilt. The trial court did not abuse its discretion in denying defendant’s
request under Evidence Code section 730.




                                              16
                                             C.
     The Trial Court Did Not Err in Admitting the Conditional Examination at Trial.
              Defendant claims he was prejudiced by the admission of the conditional
examination for two reasons: (1) defendant’s counsel did not have enough time to
prepare for the examination, and (2) materials obtained after the conditional examination
was taken could have been used to cross-examine or impeach the minor.
              Defendant acknowledges that his right of confrontation is not absolute.
(Chambers v. Mississippi (1973) 410 U.S. 284, 295; People v. Valencia (2008) 43 Cal.4th
268, 291.) If a witness is unavailable at trial, his or her former testimony may be
admissible if the party against whom it is offered was a party to the action in which the
former testimony was given, and he or she was given the opportunity to cross-examine
the witness with an interest and motive similar to that which he or she has at the current
hearing. (Evid. Code, § 1291, subd. (a)(2); People v. Smith (2003) 30 Cal.4th 581, 611.)
              Defendant’s counsel objected to the time provided to prepare for the
conditional examination. Defendant’s counsel had just recently been appointed, and was
given 10 days to review between 500 and 600 pages of discovery before the conditional
examination. However, before setting the date for the conditional examination, the trial
court had confirmed that defendant’s counsel had no other commitments. Also, at that
point, there was a codefendant who had separate counsel. Defendant does not argue on
appeal that his counsel did not have time to review the then-existing discovery, nor does
defendant identify any areas of investigation he was not able to pursue or issues on which
he could not have questioned the minor because he did not have enough preparation time.
              Defendant also argues that he was prejudiced because he could have
cross-examined or impeached the minor with material discovered after the conditional
examination. In People v. Gonzales (2012) 54 Cal.4th 1234, 1261, the defendant’s son
was determined to be unavailable to testify at trial because of the trauma he would suffer
as a result. The videotaped testimony of the defendant’s son from the preliminary

                                            17
hearing was played at trial. (Id. at p. 1247.) The defendant argued his right to
cross-examination was violated because his son’s therapy records, with which he could
have been cross-examined or impeached, were not made available until after the
preliminary hearing. (Id. at p. 1262.) The Supreme Court concluded that the defendant
nevertheless had a “meaningful opportunity to cross-examine” his son (ibid.), and found
no error (id. at pp. 1262-1263; see People v. Andrade (2015) 238 Cal.App.4th 1274, 1295
[admission of victim’s preliminary hearing testimony was proper, although the
defendant’s counsel did not have the victim’s written statement to the police at the
preliminary hearing]).
              Defendant identifies three evidentiary items he learned of after the
conditional examination, which he could have used to cross-examine or impeach the
minor at trial. The first is records from the Arizona juvenile authorities. However, at the
hearing on the minor’s unavailability, the prosecutor stated these records had been
provided to defendant’s trial counsel before the conditional examination, a fact defendant
does not dispute.
              The second evidentiary item at issue is the results of DNA testing on
feminine hygiene materials found in the minor’s underwear. These results revealed that
neither the minor nor defendant could be excluded as contributors, and would have no
apparent impact on the minor’s credibility.
              Finally, defendant complains that he did not have access to the minor’s
medical records, in which the minor told someone she had been held in a basement for
three days before being transported to California. It appears from the appellate record
that it was unclear whether the minor’s comments were in connection with the current
incident involving defendant, or a previous incident involving another perpetrator. Thus,
the documents would have had little or no evidentiary value, even if defendant’s counsel
might have questioned the minor about them.



                                              18
                                   DISPOSITION
            The judgment is affirmed.




                                             FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



IKOLA, J.




                                        19
Filed 11/15/16



                            CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FOURTH APPELLATE DISTRICT

                                     DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                         G050268

        v.                                            (Super. Ct. No. 13WF0628)

CHUNCEY TARAE GARCIA,                                 ORDER GRANTING REQUEST
                                                      FOR PUBLICATION
    Defendant and Appellant.


                 The Orange County District Attorney has requested that our opinion, filed
on October 31, 2016, be certified for publication. It appears that our opinion meets the
standards set forth in California Rules of Court, rule 8.1105(c)(1), (2), (6), (7), and (8).
The request is GRANTED. The opinion is ordered published in the Official Reports.


                                                   FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



IKOLA, J.
