Filed 11/26/19; Certified for publication 12/10/19 (order attached)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                DIVISION ONE

                                         STATE OF CALIFORNIA



THE PEOPLE,                                                      D074343

         Plaintiff and Respondent,

         v.                                                      (Super. Ct. No. SCE361596)

MARLIN ROYAL,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F.

Fraser, Judge. Affirmed.

         Randall Bookout, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steve Oetting, and Daniel J.

Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
       After the jury deadlocked and the trial court declared a mistrial, a second jury was

empaneled and then it convicted Marlin Royal of first degree murder (Pen. Code,1

§ 187). The jury also found true that Royal personally used a firearm in the commission

of the murder (§ 12022.5, subd. (a)) and intentionally discharged a firearm causing death

(§ 12022.53, subd. (d)). Royal subsequently admitted a serious felony prior (§ 667,

subd. (a)(1)) as well as two prior strikes (§ 667, subds. (b)-(i)). The court sentenced

Royal to prison for 100 years to life, plus five years.

       Royal appeals, contending: (1) the prosecution did not exercise due diligence in

securing the key witness to testify during Royal's second trial (leading the prosecution to

read the transcript of the witness's testimony at the second trial); (2) the trial court

erroneously admitted hearsay evidence as past recollection recorded; and (3) the trial

court improperly limited the scope of the cross-examination of the prosecution's expert

witness.

       Although we conclude the trial court erred in admitting certain evidence under the

past recollection recorded exception to the hearsay rule, we determine such error to be

harmless. Additionally, we find Royal's other claims of error without merit. We

therefore affirm the judgment.




1      Statutory references are to the Penal Code unless otherwise specified.
                                               2
                              FACTUAL BACKGROUND

                                       Prosecution

       On May 7, 2007, at around 10:15 p.m., a man left his house on Millar Ranch Road

to meet his friend at a nearby restaurant. As he drove down Millar Ranch Road, he had to

swerve to avoid striking an object in the road. Because the object resembled the lower

half of a person, the man called 911. As he was calling 911, a car with three women

pulled up next to him. The driver of this other vehicle, who appeared Middle Eastern or

Hispanic, seemed confused or nervous and asked the man if he had seen anything in the

road. When the man informed her that he had, and that he was on the phone with 911,

the women drove off in the direction from which the man came.

       At 10:25 p.m., a San Diego County Sheriff's Deputy was dispatched to the scene.

The responding deputy found the victim, R.J., lying partially in the bushes. Part of his

brain and skull fragments were scattered in the road by his feet. Paramedics pronounced

R.J. dead at the scene.

       A lighter, cigarette butt, gum wrapper, and saliva were found near the victim's

body. The victim's wallet contained only a quarter.2

       An autopsy revealed that R.J. died from a shotgun blast to the head. The fatal shot

was likely fired from within three feet. There was methamphetamine in his system.

Based on the evidence recovered at the scene, a criminalist stated the shotgun shell used

to kill R.J. was most likely "a Remington shot shell of .12 gauge caliber containing No. 6


2      Evidence adduced at trial showed that, before his death, R.J. recently had been
seen around the neighborhood flaunting several thousand dollars.
                                             3
shot." The criminalist believed that Remington had likely sold hundreds of millions of

shotgun shells in the past 25 years, and she acknowledged the shell that killed the victim

could have come from any 12-gauge shell with number 6 shot with similar manufacturing

characteristics. The criminalist also testified that it could be possible that other

manufacturers could use Remington components such as wadding inside their own shells,

so that the shell that killed the victim potentially could have come from any number of

manufacturers.

         The victim's cell phone, found underneath his body, provided investigators with

certain information regarding where the victim was leading up to his death. R.J. had last

been seen alive in a parking lot by Wrigley's Supermarket on Euclid Avenue near his

home. Cell tower records confirmed his phone had been in that area. These records

showed the victim's cell phone, and a cell phone with the number (310) 693-3741,

moving in the same direction toward the crime scene. The 310 number belonged to

Royal.

         Investigators examined R.J.'s call logs. R.J. had called several people on May 7th

including his father, sister, and girlfriend. R.J. had placed four outgoing calls to Royal's

number around 11:30 a.m. Cell data indicated the calls were placed from a tower in

National City near his home. At 1:59 p.m. and 2:58 p.m., R.J. placed two more calls to

Royal's phone. R.J. again called Royal at 7:59 p.m. A call made from the victim's phone

at 9:06 p.m. connected to a different cell tower than the previous calls, indicating that R.J.

might have been moving. The victim made several more calls between 9:32 p.m. and



                                               4
9:40 p.m. These calls utilized a cell tower by Jamul and Rancho San Diego, near where

R.J.'s body was found.

       On the night he was killed, R.J. exchanged several flirtatious texts with a female

friend between 8:03 p.m. and 8:24 p.m. He never responded to a follow up text she sent

him at 8:45 p.m., which was unusual. Sometime between 8:30 p.m. and 9:00 p.m., R.J.

called one of his friends looking for his girlfriend. The friend detected nothing unusual

about R.J.'s voice.

       Royal's phone records from the day of R.J.'s death also were analyzed. His phone

had called numbers associated with his mother, stepfather, a landline registered in his

stepfather's name, and a landline registered to a woman living with him. Royal's phone

also had been used to call a "Livelinks/phone sex" hotline. Phone records also showed a

call from a pay phone off of Jamacha Road to Royal's mother's number on the night R.J.

was killed. Royal's mother's cell phone also had called a Ralph's grocery store around the

time of R.J.'s death. The last call between Royal and his mother occurred at 1:00 a.m. on

May 8.

       At around 8:30 p.m., Royal's phone had been connected to a cell tower in National

City. After that, his phone had connected to the tower by Jamul and Rancho San Diego.

There were no calls between 8:31 p.m. and 10:18 p.m.

       Royal's friend introduced him to R.J. R.J.'s nickname was "Snake," and he

occasionally engaged in minor scams. For example, he once sold a friend a phone for

$50 that did not have a working home button. Before his death, R.J. was using

methamphetamine and losing weight.

                                             5
       On the day he died, R.J. received a phone call, after which he said, "Oh, I just need

to go take care of something. I'm meeting somebody at Wrigley's." He also changed into

nicer clothes. His girlfriend asked him who he was meeting but he did not say,

mentioning that the person he was meeting told him not to bring her along because "they

were about to go handle man business." R.J. sometimes served as a middleman in drug

transactions, matching up a seller and buyer in return for a cut of the drugs.

       When R.J. left for Wrigley's, his girlfriend followed him for a short while.

However, R.J. told her to wait for him at another friend's house, where she ended up

sleeping that night.

       L.N. was a key prosecution witness. She testified during Royal's first trial, but did

not do so in the second. Instead, a transcript of her testimony was read to the jury during

the second trial.

       L.N. met Royal when she was 24 or 25 years old. The couple began dating and

remained in a relationship for about eight years. After dating for six months, Royal

persuaded L.N. to begin prostituting herself. She gave the money she earned as a

prostitute to Royal. However, Royal became violent with L.N., beating her on multiple

occasions, which resulted in several hospital stays.

       In separate incidents, Royal's two vehicles were shot up. One night, L.N. saw

Royal putting a shotgun into his pants. Royal normally kept the shotgun under his bed.

Royal was upset that his vehicles had been shot up. Later that night, Royal called L.N.

and told her he needed to be picked up at a supermarket. L.N., Royal's mother, and

Royal's stepfather drove to pick up Royal at the supermarket off of State Route 94. After

                                              6
they picked him up, Royal told them he had murdered someone. Royal explained that he

had asked R.J. who had shot at his car. R.J. refused to tell him and was pleading for his

life. Royal told R.J. he would give him "one more chance." After "the victim said he

couldn't tell him . . . everything went silent."

       Royal did not have the shotgun when he got back to the car. Around 2:00 or

3:00 a.m., Royal left to find the gun.3 When he returned, Royal and L.N. went to a diner

in Mission Valley. They stayed there until early morning and then went to Royal's

grandfather's house. There, they saw a television broadcast about R.J.'s murder. When

Royal saw the news story, he announced, "That's it. That's him."

       Royal and L.N. then went to Texas for a few days before returning to San Diego.

A few weeks later, Royal and L.N. decided to drive to Missouri. As they were passing

through Arizona, they were pulled over by law enforcement. An Arizona police officer

found a box of shotgun shells in the trunk of Royal's car. These shotgun shells were

Remington 12 gauges with No. 6 shot. L.N. also had a small amount of drugs in her

purse. After the Arizona incident, the couple's relationship ended, and L.N. moved to

Georgia to live with family.

       In 2013, detectives contacted L.N. in Nevada. She initially denied having

information about the murder, but in a second interview, she admitted that Royal had

confessed to committing the crime. She added that the shooting might have been related




3      A detective was at the crime scene until 4:08 a.m., and there is no indication in the
record the detective saw Royal return to the area.
                                               7
to Royal's car getting shot up. L.N. also informed the detectives that a lot of men were

angry with Royal because he had pimped their girlfriends or wives.

       L.N. also claimed that Royal made her call R.J. multiple times to get him to meet

her at Wrigley's. She denied that she was arranging to meet R.J. for paid sex. L.N. was

"deathly afraid" of Royal.

       Additionally, L.N. told the detectives that "there might be an association between

[an individual identified as] Ali and one of the [car] shootings . . . ." Royal and Ali had

formerly worked together at NASSCO. Royal and Ali went to Los Angeles together,

where Ali got arrested for a parole violation because he had left San Diego County. At

some point before the murder, Royal beat up Ali, apparently because he thought Ali was

involved in one of the car shootings. According to one of the detectives, regarding R.J.'s

death, L.N. "suggested that [Ali] might be somehow involved or a reason why."

       The prosecution also called a clinical social worker as a sexual trafficking expert.

She testified that women who are trafficked and abused commonly suffer from memory

loss and disassociation.

                                          Defense

       Kenneth Stewart, the lead investigator assigned to the case, testified that L.N.

avoided cooperating with the investigation. In 2015 and 2016, it took Stewart almost a

year to locate and serve her with a subpoena. L.N. testified at the preliminary hearing in

December of 2016 and the first trial in September of 2017. Before her September

testimony, she was informed that the defense planned to argue that she had committed the

murder. This upset her, making her more fearful and less cooperative.

                                              8
       A few weeks before the second trial began, in March 2018, L.N. called the

prosecutor and told her she would not come to court, give up her location, or cooperate.

Stewart believed that L.N. had moved from Nevada to Georgia.

       L.N.'s attorney testified at Royal's second trial. He testified that L.N. had

contacted him in the last ten days. L.N. told him to present the prosecutor with a list of

demands if she was to testify. She wanted immunity from prosecution for R.J.'s murder,

her mother to be left alone, and $15,000.

       The parties also stipulated that L.N. had attempted to invoke her Fifth Amendment

right not to testify in the first trial. The trial court, however, had ruled that she had no

Fifth Amendment right because her testimony "did not incriminate herself and implicate

the Fifth Amendment."

       Royal testified in his defense. He claimed he did not have anything to do with

R.J.'s murder. He met L.N. on a Livelinks phone sex hotline. She was already

prostituting herself, but Royal decided to act as her pimp to "show her the correct way to

do it." Royal also was pimping another woman in Los Angeles. Royal stated that he

wanted to help L.N. prostitute herself in a safe manner, but admitted he had beaten her up

on two occasions.

       According to Royal, L.N. "became a very ruthless, very conniving, deceiving

prostitute." In 2005, Royal quit pimping and began working at NASSCO. He claimed

that he obtain "a lot of certifications" while at NASSCO, including certified sheet

metalist, crane operator, electrician, and pipefitter. He denied he started at NASSCO as a



                                               9
student pipefitter and left as a pipefitter trainee. In 2006, Royal left NASSCO because he

was devoted to his other two jobs, a cell phone business and a printing business.

       Royal testified that he made over $100,000 a year from his two companies.

However, he admitted that he did not always pay his bills. L.N. helped Royal with the

administrative work for the cell phone business. He also admitted the (310) 693-3741

phone number was his and his business cards included that number. He stated that the

number was "important," and he chose the 310 area code because "310 was like a nice

neighborhood, Beverly Hills," and he wanted the business to be associated with wealth.

       On November 6, 2006, Royal took his friend Ali, to Los Angeles. Ali was

detained in Los Angeles and found to be in violation of his parole. Ali ended up going

back to prison and blamed his misfortune on Royal. When Ali got out of custody, he

arranged for "three assassins" to shoot up one of Royal's vehicles.

       One of Royal's friends introduced him to R.J. Royal and R.J. hung out about 10

times. Royal knew that R.J. had a methamphetamine problem. He employed R.J. as a

telemarketer.

       According to Royal, he gave L.N. the phone with the 310 area code on May 7 and

told her to give to it R.J. so he could use it to make cold calls. Royal explained that he

decided to give this phone to R.J. because "the 310 number was kind of like a phone [he]

didn't really care about."

       On May 7, Royal got home from work around 3:00 or 3:30 p.m., and went out

with one of the women he was seeing. He returned home around "11:00ish, somewhere



                                             10
around there, at nighttime." L.N. was not home when he got home, which was unusual.

Royal became upset because he thought L.N. was cheating on him.

       At 11:15 p.m., L.N. called Royal from the supermarket acting nervous and timid.

Royal was "highly upset" when she told him she had not given the phone to R.J. like he

had told her to do. Royal claimed the series of calls from his phone to his mother and

stepfather were a subsequent "huge argument" between him and L.N. According to

Royal, they argued and hung up on each other, and he changed phones as he walked

around his house. Royal also explained that the call at 11:39 p.m. to the supermarket

from his mother's phone occurred because he did not believe that L.N. had been calling

from the supermarket and wanted to see if she was actually there.

       Royal did not see L.N. until the following morning around 6:00 or 7:00 a.m. She

was still carrying Royal's phone, but Royal did not know what she did with it. Royal did

not go to a diner in Mission Valley or his grandfather's house.

       Royal admitted he suffered from a "terrible record" that included three prior

robbery convictions and an assault conviction. He also admitted to beating L.N. on two

occasions. He beat her the first time because she was "lying" and "difficult." The second

time he beat her because she gave him food poisoning. L.N. had lied to Royal about her

stepfather sexually abusing her.

       Royal claimed he had never had any firearms at his mother's house, and that he did

not have access to his stepfather's firearms. He also testified, "I don't think I knew they

was in there," when asked about the shotgun shells found by Arizona police in his car.



                                             11
       Royal's mother testified that while L.N. was living with Royal she came and went

as she pleased and did not appear to be afraid of leaving the house. During this time,

L.N. would visit her own family. L.N. drove a white compact car and never appeared to

be afraid of Royal.

       Royal did not have a gun in the house, and his mother was adamant she would

have found it if he did. Both Royal and L.N. had separate cell phones, and there were

separate landlines in Royal and L.N.'s bedroom and in the kitchen. Royal's mother would

leave her own cell phone in various locations whenever she was at home; her husband

would leave his cell phone in a charger at night and would not have known if anyone

used it.

       Royal's mother also claimed she did not drive to pick up Royal from Spring Valley

in May of 2007, and that she never heard him say he had killed someone.

       Royal's stepfather had triple bypass surgery in April of 2006 and experienced a

significant recovery period, which included being hospitalized with pneumonia.

According to him, there was no way he could have driven to Spring Valley in May 2007

to pick up Royal. He likewise was confident he did not hear Royal confess that he had

killed anyone. He owned a shotgun and many other guns, but kept them locked up.

       A defense investigator testified that Royal's mother expressed frustration with the

fact that L.N. stopped running Royal's businesses and was not generating money for his

legal defense.

       A defense crime scene analyst testified that he could not definitively establish

whether the victim was standing, kneeling, or ducking when he was shot. There was

                                            12
dried grass and dirt on the victim's back, which could not have been there had the victim

been shot from behind while kneeling execution-style and fallen straight forward.

       A forensic examiner reviewed the calls made from Royal's phone. He testified

that the prosecution's experts did a good job analyzing the phone records in this case.

However, he opined that several calls made on the morning of May 8, 2007, could not

have been made from the diner in Mission Valley. He further opined that it was plausible

that another call made that morning could have come from Royal's grandfather's house,

but he did not believe it had.

       A woman who had an on-again, off-again relationship with Royal from 2005 to

2007 testified that she might have been with Royal on the night of the murder because it

was her routine to hang out with Royal on weeknights around that time. However, she

was not positive because she could have been broken up with Royal at the time. She

denied that Royal asked her to provide him with an alibi during a jail visit on December

16, 2016. Around the time of trial, the woman had recently reconnected with Royal.

                                         Rebuttal

       A detective testified that Royal's mother lied to him and told him Royal was not

living at her home when he was investigating the shooting of one of Royal's vehicles.

       A representative from NASSCO testified that Royal worked as a student pipefitter

and a pipefitter trainee. He never worked as an electrician and was twice fired from the

job.




                                            13
                                         DISCUSSION

                                               I

   THE PROSEUCTION'S EFFORTS TO SECURE L.N. AS A WITNESS FOR THE
                          SECOND TRIAL

                                    A. Royal's Contentions

       Royal argues that the prosecution did not exercise due diligence in securing L.N.

as a witness for the second trial. As such, he claims his Sixth Amendment right to

confront L.N. was violated when the prosecution read the transcript of L.N.'s testimony,

from Royal's first trial, to the jury.

                                         B. Background

       Following R.J.'s death, Detective Susan Fiske spent a substantial amount of time

trying to locate L.N. to interview her about the incident. However, L.N. would move

whenever Fiske would discover where she was living. Eventually, in 2013, Fiske was

able to secure an interview with L.N. after she found her in Las Vegas. L.N. was

cooperative during the interview and "implied that she was going to remain cooperative."

       After Fiske's interview of L.N., Stewart was assigned to Royal's case. It was

Stewart's job to subpoena witnesses for trial. It took Stewart about a year to locate L.N.

because she was avoiding him. Apparently, L.N. was reluctant to be involved in the case

because her relationship with Royal had been so destructive. Nevertheless, Stewart

subpoenaed L.N. for the preliminary hearing and the subsequent proceedings. Stewart

believed it was the potential consequences of ignoring a subpoena and court orders that

secured L.N.'s participation in the case.


                                              14
         Before the first trial began on September 11, 2017, L.N. was informed that the

defense was attempting to implicate her in the murder. She immediately became less

cooperative. She retained an attorney. However, despite the fact she was living in

Nevada, she continued to comply with her subpoenas. Before her testimony in the first

trial, she attempted to invoke her Fifth Amendment right not to testify. The trial court

found that her testimony would not implicate her in any crimes and made a judicial

determination that she had no Fifth Amendment right not to testify. L.N. then testified

and was subject to cross-examination.

         L.N.'s testimony in Royal's current trial concluded on September 21, 2017.

Following the presentation of evidence, on September 29, the jury hung nine to three and

announced it was deadlocked. Before declaring a mistrial, the court commented that it

was surprised that the jury hung because Royal did an "awful job" testifying.

         Immediately following the mistrial, Stewart did not reach out to L.N. It was

Stewart's belief that L.N. had been "traumatized" by the trial, and Stewart felt it would be

unnecessary to contact her, which could upset her, until the date of the second trial was

set. In January 2018, once a retrial date was set, Stewart attempted to contact L.N. He

learned that after the trial, L.N. had returned to Las Vegas. Although she was living in

another state, she had previously complied with the court's subpoenas while living in Las

Vegas.

         Stewart checked local police databases before widening his search. He then

checked a Nevada database to see the driver's license status of L.N. and her mother.

Since L.N. had been staying at her mother's house, he contacted law enforcement in Las

                                             15
Vegas and arranged for them to surveil the residence. A Las Vegas investigator spent

several hours conducting surveillance and observed cars registered to L.N. and her

mother parked outside the residence.

       Stewart used the information gathered by his contact to obtain a subpoena under

the interstate compact. On March 14, 2018, about a month before trial would commence,

Stewart's contact in Las Vegas spent several hour's watching L.N.'s residence in an

attempt to locate her for service. When the investigator went up to the front door, L.N.'s

mother and stepfather told him "that she wasn't there, that they didn't know where [L.N.]

was, had no way of contacting her and asked him to leave their property." The

investigator continued to surveil the residence, but L.N. never appeared. He also

continued monitoring the car registered in L.N.'s name, but it seemed that no one was

using that car. At Stewart's direction, the investigator in Las Vegas contacted one of

L.N.'s ex-boyfriends. The former boyfriend admitted he had recently talked to L.N.

However, he claimed he had no way to contact her.

       On March 15, 2018, L.N. called the prosecutor. She informed her she did not

want to testify at the second trial and refused to divulge her location or accept a

subpoena. Stewart did not attempt to secure a "ping warrant" to try to locate her phone.4



4      Generally, a "ping warrant" authorizes global position system surveillance of a cell
phone. In discussing the lack of a ping warrant here, Stewart indicated that he had never
used a ping warrant to locate a witness in a case. Instead, he had only used such a
warrant to locate defendants and suspects. The trial court observed that it required
"probable cause for a crime" before it would issue a ping warrant. Although he admitted
to never asking for a warrant, defense counsel insisted the prosecution could have
obtained a "material witness" warrant for L.N.
                                             16
       Stewart continued to attempt to locate L.N. He conducted an employment check,

but it revealed only a former employer he had already contacted. The check did reveal a

mailing address in Bonita at a "Postal Annex-type business." Stewart visited the store,

talked to the manager, and asked for any forwarding address on file. The manager

provided him with two forwarding addresses. One was the address in Las Vegas that he

was already aware of. The second was an address in Georgia.

       On March 29, 2018, and again on April 2, 2018, Stewart contacted law

enforcement officials in Georgia to ask for assistance locating L.N. He provided

Georgian officials with a picture and an address and indicated he would start interstate

compact proceedings if they could locate her.

       On April 3, 2018, Stewart testified at a pretrial hearing. He had not heard back

from his contacts in Georgia. Stewart acknowledged he made no efforts to contact L.N.

between September 2017 and January 2018 because there was no "due date for trial." He

was similarly concerned that if L.N. knew there was going to be a second trial she would

"move to an address where [he] couldn't locate her."

       Following Stewart's testimony, the court heard arguments from counsel regarding

the prosecution's efforts to locate L.N. In addition to reiterating Stewart's efforts to track

down L.N., the prosecutor stated that the first trial "traumatized" L.N. and that she left

California before a mistrial was declared. The prosecutor also explained that she did not

attempt to serve L.N. with a subpoena before a firm trial date was set because she was

concerned that if L.N. had too much "advanced notice" she would flee. Additionally, the



                                              17
prosecutor maintained that the fact that L.N. was located outside of California increased

the difficulty of serving her with a subpoena.

       In response, Royal's trial counsel argued that the prosecution had to take

reasonable precautions to prevent L.N., a "critical" or "vital" witness, from disappearing.

Defense counsel pointed out that the prosecution knew that L.N. was "spooked" and had

"every reason . . . to keep close tabs on her." Counsel even suggested incarcerating L.N.

as "a last option."

       After listening to arguments from the parties, the court described the reasoning

behind its ruling that L.N. was unavailable. The court expounded:

           "All right. Well, there's no question, I think both parties' preference
           would be to have her here, there's no question about that, and she
           was a difficult witness before the first trial, during the first trial and
           after the first trial, and decisions have to be made, when you know
           there's going to be a second trial, of 'How do we deal with this
           difficult witness who now lives in another state?'

           "And Counsel suggested they could have gone through Interstate
           Compact, but the problem with that is if you know it's not the trial
           date, then you've given her the heads up. Decisions were made.
           You can criticize them, but they weren't unreasonable, and that's the
           standard that we're using.

           "Once we got a firm trial date in April, they pulled out all the stops,
           including using help from the Clark County DA's Office in order to
           secure her presence. Quite frankly, she was rather elusive in the
           sense that all indications indicated she lived in Las Vegas. I mean,
           that's what everybody thought until she, quite frankly, pulled a fast
           one, after telling the DA, 'I'm not cooperating,' and all of a sudden
           she flees to Georgia, which actually is some pretty good police work.
           They tracked her down to Georgia.

           "Again, everybody's preference would be that she testify.
           Obviously, the jurors—a cold record is not in anybody's best
           interest, but the People have exercised due diligence here. The

                                               18
           defense had ample opportunity to cross-examine her during the first
           trial, so based on that I will at this point deem her unavailable with
           this caveat: That obviously should she become available, that the
           People let the Court know right away because I think everybody
           wants her here. So at this point then, based on that, I do find as a
           matter of law that she is unavailable under [Evidence Code section]
           240."

       The second trial commenced on April 10, 2018. On April 16, 2018, while L.N.'s

testimony was being read to the jury, the prosecutor alerted the court to the fact that

L.N.'s attorney contacted her and let her know L.N. wanted to testify. The attorney did

not know where she was or when she would be available, and he believed that L.N.

appeared to have "some concerns" about immunity and her parents being left alone. The

court suggested they keep reading L.N.'s testimony until there was some evidence she

would be available.

       During a break in the proceedings, the prosecutor again spoke to L.N.'s attorney.

The prosecutor then informed the court that the attorney had told her that he believed

L.N. "was local" but did not know her exact location. The prosecutor also stated that

L.N.'s attorney told her that, in order to testify, L.N. had told him she wanted immunity,

her mother to be left alone, and $15,000 to testify at Royal's second trial. The prosecutor

relayed to the attorney that she could only offer her the standard compensation of $15 a

day, transportation reimbursement, and a meal voucher. When this offer was presented to

L.N., she refused to testify.

       Following more discussions about this situation, L.N.'s attorney was called to

testify at an Evidence Code section 402 hearing. He confirmed that the prosecutor's

characterizations of his comments had been correct. The attorney revealed that L.N. was

                                             19
scared and traumatized. He believed she wanted the money, so she could relocate.

Ultimately, L.N. was never located, and her full testimony from the first trial was read

into the record at the second trial.

                                       C. Relevant Law

       The confrontation clauses of both the United States and California Constitutions

guarantee criminal defendants the right to confront the witnesses against them.

(U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) However, this right is not absolute.

(Chambers v. Mississippi (1973) 410 U.S. 284, 295.) "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. [Citations.] California allows introduction of

the witness's prior recorded testimony if the prosecution has used 'reasonable diligence'

(often referred to as due diligence) in its unsuccessful efforts to locate the missing

witness." (People v. Cromer (2001) 24 Cal.4th 889, 892 (Cromer).) It is the burden of

the proponent of the evidence to prove unavailability and due diligence. (People v.

Cummings (1993) 4 Cal.4th 1233, 1296 (Cummings).)

       We review de novo a court's finding of due diligence by the prosecution in its

unsuccessful efforts to locate an absent witness to determine the validity of its subsequent

declaration of unavailability warranting an exception to a defendant's constitutionally

protected right of confrontation at trial. (Cromer, supra, 24 Cal.4th at p. 901.) "What

constitutes due diligence to secure the presence of a witness depends upon the facts of the

                                             20
individual case. [Citation.] The term is incapable of a mechanical definition. It has been

said that the word 'diligence' connotes persevering application, untiring efforts in good

earnest, efforts of a substantial character. [Citation.] The totality of efforts of the

proponent to achieve presence of the witness must be considered by the court. Prior

decisions have taken into consideration not only the character of the proponent's

affirmative efforts but such matters as whether he reasonably believed prior to trial that

the witness would appear willingly and therefore did not subpoena him when he was

available [citation], whether the search was timely begun, and whether the witness would

have been produced if reasonable diligence had been exercised [citation]." (People v.

Linder (1971) 5 Cal.3d 342, 346-347.)

       It is settled that the fact "additional efforts might have been made or other lines of

inquiry pursued does not affect [a finding of reasonable diligence]. [Citation.] It is

enough that the People used reasonable efforts to locate the witness." (Cummings, supra,

4 Cal.4th at p. 1298; e.g., People v. Diaz (2002) 95 Cal.App.4th 695, 706 (Diaz);

People v. Lopez (1998) 64 Cal.App.4th 1122, 1128 (Lopez).)

                                         D. Analysis

       The prosecution acted with due diligence in attempting to secure L.N.'s presence at

Royal's second trial. Once the date of the retrial was set, Stewart tried to contact L.N.

Apparently, sometime near the end of Royal's first trial, L.N. had relocated to Las Vegas.

Stewart thus checked local police databases and then checked a Nevada database to

ascertain L.N.'s driver license status as well as that of her mother. Because Stewart

believed L.N. was staying at her mother's house, Stewart arranged for law enforcement in

                                              21
Las Vegas to surveil L.N.'s mother's house. Stewart obtained a subpoena for L.N. under

the interstate compact. About a month before the start of Royal's second trial, law

enforcement in Las Vegas spent several hours watching L.N.'s mother's residence, trying

to locate L.N. for service of the subpoena. Las Vegas law enforcement contacted L.N.'s

mother and stepfather in an attempt to locate L.N. Despite the mother's and stepfather's

unwillingness to help, Las Vegas law enforcement continued to surveil the residence and

monitor a car registered to L.N. Per Stewart's request, Las Vegas law enforcement even

contacted one of L.N.'s ex-boyfriends in Las Vegas to find L.N.

       L.N. contacted the prosecutor on March 15, 2018 to inform her that she did not

want to testify at Royal's second trial. L.N. also refused to divulge her location or accept

a subpoena.

       Stewart continued his efforts to locate L.N. He conducted an employment check,

which revealed a mailing address in Bonita for a postal annex business. Stewart visited

the store and obtained two forwarding addresses for L.N.—one was the address already

surveilled in Las Vegas and the other was in Georgia. Stewart then contacted law

enforcement in Georgia to ask for help locating L.N. He provided Georgia law

enforcement with L.N.'s picture and an address. Stewart also indicated that he would

start interstate compact proceedings if L.N. was located.

       Royal does not dispute the prosecution's efforts as described. Instead, he argues

the prosecutor did not do enough. Most importantly, he posits that it was "reasonably

foreseeable" that the result of the first trial would be a mistrial. To this end, he argues the

prosecution's case in chief, absent L.N.'s testimony, "was notably weak." He also implies

                                              22
the prosecution should have taken proactive steps, during the first trial, to ensure that

L.N. returned for any potential retrial.

       We find two primary problems with Royal's argument. First, it is not all that clear

on the record before us that a mistrial was reasonably foreseeable. Although we agree

that every criminal trial has the potential to result in a mistrial, we note that, below, at

least the trial court expressed surprise that the jury hung because of the "awful job" Royal

did testifying in his defense. Second, Royal has provided us with no authority that would

require a prosecutor, even if a retrial seems probable, to secure important witnesses for a

possible retrial during the original trial. And we are not going to establish such a rule on

the record before us.

       Having not accepted Royal's premise that the prosecutor should have anticipated a

mistrial and taken steps during Royal's original trial to secure L.N.'s presence at the

second trial, the rest of Royal's arguments lose any merit that they might have had. For

example, Royal argues that the prosecution could have incarcerated L.N. as a material

witness under section 1332. "Under that section, on an appropriate sworn showing, a trial

court may detain a material witness when it finds good cause to believe that the witness

will not attend the trial and testify." (In re Francisco M. (2001) 86 Cal.App.4th 1061,

1064.) However, such a procedure would have required L.N. to be within the superior

court's jurisdiction. Here, L.N. left California before a mistrial was declared. Thus, even

had the prosecutor utilized section 1332, any order from the court would have been

ineffective. Further, if the prosecutor had attempted to use section 1332 during Royal's

first trial, it is not clear that a court would have ordered L.N. into custody because there

                                              23
would be no actual "criminal prosecution" (beyond the trial at which L.N. had testified)

as required under subdivision (a) of section 1332, only the possibility of a retrial.

       Similarly, Royal's argument that the prosecution should have videotaped L.N.

during the first trial so it could play the videotaped testimony during the retrial is not

persuasive. This argument is contingent on the prosecution anticipating both a mistrial

and that L.N. would flee California after testifying in the first trial. And Royal has

provided no authority showing that the prosecution was required to videotape a witness at

trial under analogous circumstances.

       Also, we are not persuaded by Royal's argument that the prosecution could have

obtained a ping warrant to locate L.N. Royal has offered no evidence that such a warrant

is appropriate for witnesses as opposed to suspects. Both the prosecutor and the superior

court represented that a ping warrant could only be obtained to find a suspect who is

believed to have committed a felony.

       Finally, we reject Royal's last argument that the prosecution did not exercise due

diligence in attempting to secure L.N. as a witness for the second trial because it did not

consider having L.N. testify via teleconference. There is no indication in the record that

L.N. was willing to testify by teleconference or that the prosecution was aware of her

actual location so as to be able to set up a teleconference.

       In short, Royal offers a list of other methods the prosecution could have employed

to secure L.N. as a witness for the second trial. These alternative means do not

undermine the People's argument here that the prosecution exercised due diligence. (See



                                              24
Cummings, supra, 4 Cal.4th at p. 1298; Diaz, supra, 95 Cal.App.4th at p. 706; Lopez,

supra, 64 Cal.App.4th at p. 1128.)

                                               II

                                 HEARSAY STATEMENTS

                                   A. Royal's Contentions

        Royal asserts the trial court prejudicially erred by admitting certain out of court

statements from L.N. under the past recollection recorded exception to the hearsay rule.

Royal points out that the statements were made in 2013, some six years after the events in

question. He contends the prosecution did not establish that L.N.'s recollection was fresh

in L.N.'s mind when she made the out of court statements. We agree that the trial court

erred in admitting these statements, but find such error harmless.

                                        B. Background

        R.J. was killed on May 7, 2007. L.N. was first interviewed about the incident on

September 11 and 12, 2013. She testified at Royal's first trial on September 20 and 21,

2017.

        In the prosecutor's trial brief for the second trial, the prosecutor asked for an in

limine ruling that certain statements L.N. made to detectives in 2013 would be admitted

under the past recollection recorded exception to the hearsay rule. At the motion in

limine hearing, Royal's trial counsel explained the problems that would stem from

admitting some of L.N.'s statements to the detectives as past recollection recorded. To

this end, defense counsel noted that L.N. "says 'I don't remember' to almost everything,"

adding that "I don't remember" encompassed both authentic memory loss and evasion of

                                               25
answering the proposed question in L.N.'s case. Counsel emphasized that the primary

problem was that L.N. was testifying regarding conversations and events that occurred in

2007, but the recorded recollection occurred in 2013 when L.N. finally talked to law

enforcement. Defense counsel further pointed out the prosecution, in the first trial, had

explained L.N.'s multiple inconsistencies to the jury by claiming that L.N. had a lack of

memory, but maintained that she accurately remembered statements from 2007 when she

gave her statements to the detectives in 2013. Counsel summed up that the past

recollection recorded exception regarding L.N.'s previous statements to law enforcement

was "essentially letting the prosecution get around the fact that [L.N.] doesn't remember."

       In response, the prosecutor asserted, "There's no case that states there is a time

limit on when someone can recall and give a statement about what happened." The trial

court stated that it did not disagree with the prosecutor and was inclined to allow the jury

to hear the evidence. The court reasoned that as long as the jury had all the information

before it, it could decide what memories were accurate. However, defense counsel again

emphasized the large gap of time between the events in question (2007) and L.N.'s

statements to the detectives (2013). In doing so, counsel represented that he only found

cases with gaps of six months, nine months, and a "weird" federal case with a gap of

three years. Royal's trial counsel believed it was inappropriate for the trial court to

determine that the "underlying statement [was] so reliable that the jury should be

permitted to hear it." The court then clarified that it was not determining that the

statements were reliable, and that reliability was "a complete jury question." The court

further explained that the hearsay rule existed so that witnesses could take the stand and

                                             26
be cross-examined. When defense counsel pointed out that L.N. would be absent from

the second trial, the court noted that what was important was that, in the first trial, L.N.

had been subject to full and fair cross-examination. The court granted the prosecutor's

motion.

       During trial, Royal's trial counsel renewed his objection to the admission of L.N.'s

2013 statements to the detectives. In support of his objection, counsel produced a printed

copy of L.N.'s prior testimony tabbed with objections to every statement she had made

that was admitted pursuant to the past recollection recorded exception. Defense counsel

had identified "six or seven" instances where this exception had been invoked.

       The parties then began to read through the transcript and defense counsel began

lodging other evidentiary objections. When the parties arrived at the past recollection

recorded issue, the court indicated the issue "complicated," and the court needed "to

actually read through that and get a feel for it." The court stated it was inclined to defer

its ruling until after the weekend, so it could consider the law in this area.

       Royal's trial counsel then reiterated his belief that the prosecutor had failed to meet

the foundational requirement for past recollection recorded. The defense counsel

maintained that the prosecutor had asked L.N. during the first trial (in 2017) whether her

memory of events had been better in 2013 than they were in 2017. Counsel argued that

this question was insufficient to establish the requirement that the events were fresh in

L.N.'s mind when she made the statements to the detectives in 2013. The court then

asked if defense counsel had any case law stating there was "magical words that have to

be spoken in a certain manner" to lay the foundation for the past recollection recorded

                                              27
hearsay exception. Royal's counsel did not have any case to support his position, but

instead, pointed to the factors listed in Evidence Code section 1237.

       In response to defense counsel's argument, the prosecutor explained that because

of L.N.'s limited vocabulary, the court in the first trial had recognized that she "was

trying to speak in a simple fashion with the witness so that [she] could and did lay proper

foundation."

       Royal's trial counsel also argued that it was improper for the prosecutor to make

inconsistent arguments about L.N.'s memory. He claimed the prosecutor was arguing to

the court that L.N. had a good memory of the incident in 2013, while also arguing to the

jury that L.N. did not "remember a lot of specifics from 2013." The prosecutor objected

that defense's counsel's representation mischaracterized the evidence. Further, the

prosecutor pointed out that she had argued L.N. remembered some things but that there

were other "specific details" she could not recall. Just because L.N. could not recall

"some parts of an event . . . doesn't mean everything about the event is excluded." After

entertaining oral argument, the court did not make a ruling.

       The following Monday, when the parties reconvened, the court addressed the

issue. The court explained that past recollection recorded was similar in some ways to

the business records exception because both involved information recorded "near the time

of the event." The court then noted there had been a lot of discussion regarding the six-

year gap between the murder and the interview, but that in the first trial the court had

expressly found that L.N. had personal knowledge of the events she described in the

interview when it admitted the evidence. In response, Royal's trial counsel then reiterated

                                             28
that the prosecutor had not "laid the foundation." The court did not appear to be swayed

by this argument, framing the argument as one that the prosecutor did not use "the

verbiage from the code." The court also pointed out that since L.N. had been on the

witness stand, there had been a full and fair opportunity for cross-examination. The court

then reasoned that, following her testimony including cross-examination, L.N.'s

credibility was "something for the jury to figure out."

       Although he cross-examined L.N. in the first trial, defense counsel argued that the

primary issue before the court was whether the prosecutor established that events were

"fresh" in L.N.'s mind in 2013 when she made her statements to the detectives. In

response, the prosecutor explained that she had established the requirements of Evidence

Code section 1237 "over and over." According to the prosecutor, the fact that the witness

"remembered things and provided the statement in 2013 meant she remembered it." The

prosecutor had asked about the incident at the first trial in 2017. The prosecutor also

explained that she had attempted to refresh L.N.'s recollection and had only moved on to

the next step of past recollection recorded when that failed.

       Defense counsel countered that the prosecutor could not simply "move to the next

step." Instead, counsel believed a witness had to be asked "a series of questions" that

would establish "four very specific elements that are laid out by the Evidence Code."

       The prosecutor then noted an example where she had asked L.N., "at the point you

talked to [the detectives] it was closer in time to when this conversation happened in the

bedroom?" L.N. had responded, "Yes, it was closer in time." The prosecutor had then

followed up that question by asking, "And when you talked to them, you independently

                                             29
remembered that conversation?" L.N. responded, "Yes." After the prosecutor failed to

refresh L.N.'s recollection on this point, the court in the first trial had admitted L.N.'s

2013 statement as a past recollection recorded. The court stated that it saw no problem

with the trial court's approach to this evidence in the first trial, especially given that some

unsophisticated witnesses might not understand questions that quoted statutes verbatim.

The court then stated that it thought this exchange showed the prosecutor had laid the

proper foundation.

       In response, defense counsel pointed to part of the transcript later on, where the

prosecutor had simply asked if the interview refreshed L.N.'s recollection and then

offered the evidence as a past recollection recorded. The court informed defense counsel

that the prosecutor was not required to "redo the foundation" every time she asked a

question.

       Apparently sensing he was losing the argument, defense counsel then focused on

his second argument that the prosecutor was "talking out of both sides of [her] mouth."

The court, however, was not convinced, explaining that it was common that a witness

might "remember some things and not remember others."

       At trial, L.N.'s testimony from the first trial was read into the record. There were

many facts regarding Royal and the incident that L.N. was able to recall. There were

some facts that L.N. was able to recall after her recollection was refreshed. There were

some facts that L.N. was not able to recall that were admitted as past recollections

recorded. And there were some facts that L.N. did not know or could not remember. For

example, L.N. remembered that Royal had abused and beat her. Similarly, L.N. had no

                                              30
trouble remembering that she had seen Royal arm himself with a shotgun, that Royal had

called her and asked to be picked up at the supermarket on the night R.J. was killed, and

that after she picked up Royal, he admitted he had shot someone.

      The first time the past recollection recorded exception was raised, the following

exchange took place:

          "Q. I want to show you Page 44 of the transcript, specifically Lines
          10 through 11. If you could read that silently to yourself and look up
          when you're done. [¶] Do you remember making that statement to
          the detectives?

          "A. No.

          "Q. No. Okay. When you talked to the detectives, were you being
          honest?

          "A. Yes.

          "Q. And at the point in time when you talked with the detectives,
          you would agree that it was closer in time to when the conversation
          with the defendant happened in that bedroom after he had the
          shotgun?

          "A. Can you repeat it.

          "Q. Yes. At the time you talked to the detectives and told them
          about what the defendant said when you walked in on him with the
          shotgun—

          "A. Uh-huh.

          "Q. —that was closer in time to when that actually happened,
          correct?

          "A. I don't understand what you mean closer in time to when it
          happened.

          "Q. Yeah. Was it closer in time than today's date?


                                            31
          "A. Yes.

          "Q. Okay. And when you talked to the detectives, you
          independently remembered that conversation?

          "A. Yes."

       Based on the past recollection recorded exception to the hearsay rule, the court

admitted evidence that: (1) Royal was upset that someone shot up his car; (2) someone

had shot up Royal's Range Rover; (3) Royal told L.N. he needed to go back to the crime

scene to get the shotgun; (4) Royal started shaking and said "That's it. That's him" when

he saw the news broadcast discussing R.J.'s death; and (5) R.J. begged Royal not to shoot

him. Also, on redirect, the prosecutor used the past recollection recorded exception to

establish: (a) L.N. tried to move up her meeting with law enforcement; and (b) she

delivered gas to Royal on the night of R.J.'s death.

                                     C. Relevant Law

       Hearsay is evidence of an out of court statement offered to prove the truth of the

matter asserted therein and is inadmissible unless it falls within an exception to the

hearsay rule. (See Evid. Code, § 1200.) Evidence Code section 1237 provides an

exception to the hearsay rule based on past recollections recorded. That section states:

          "(a) Evidence of a statement previously made by a witness is not
          made inadmissible by the hearsay rule if the statement would have
          been admissible if made by him while testifying, the statement
          concerns a matter as to which the witness has insufficient present
          recollection to enable him to testify fully and accurately, and the
          statement is contained in a writing which:

          "(1) Was made at a time when the fact recorded in the writing
          actually occurred or was fresh in the witness' memory;


                                             32
          ("2) Was made (i) by the witness himself or under his direction or
          (ii) by some other person for the purpose of recording the witness'
          statement at the time it was made;

          "(3) Is offered after the witness testifies that the statement he made
          was a true statement of such fact; and

          "(4) Is offered after the writing is authenticated as an accurate record
          of the statement.

          "(b) The writing may be read into evidence, but the writing itself
          may not be received in evidence unless offered by an adverse party."
          (Evid. Code, § 1237.)

       A trial court has wide discretion to admit or exclude evidence and the court's

ruling in this regard will not be disturbed absent a showing that it exercised its discretion

in an arbitrary, capricious, or patently absurd manner that resulted in a manifest

miscarriage of justice. (People v. Geier (2007) 41 Cal.4th 555, 585.) The defendant

bears the burden of showing a clear abuse of discretion by the trial court in admitting

evidence. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

                                        D. Analysis

       L.N.'s statements to the detectives that were admitted under the past recollection

recorded exception to the hearsay rule occurred in 2013. At that time, L.N. told the

detectives about statements she allegedly heard Royal say at different times in 2007.

Thus, there is about a six year gap between the time Royal made the statements in L.N.'s

presence and when L.N. divulged these statements to law enforcement. Royal argues that

this six year gap is simply too long to permit the statements to fall under Evidence Code

section 1237's exception to the hearsay rule. He further insists that the prosecutor did not



                                             33
properly establish that the statements were "fresh" in L.N.'s mind when she relayed them

to the detectives in 2013.

       In response, the People counter that there is no requirement under Evidence Code

section 1237 that a witness utter " 'magic words' " that a statement was recorded at a time

the information was " 'fresh' " in his or her mind. (See People v. Miller (1996) 46

Cal.App.4th 412, 424, fn. 5.) They also insist that, "[a]lthough a statement admitted

under this exception must be made at a time when the fact recorded in writing was fresh

in the witness' memory, courts have found the exception to apply in cases where the

recorded statement was made weeks, months, or even years after the initial event." To

this end, they claim People v. Cowan (2010) 50 Cal.4th 401 (Cowan) is instructive. (See

id. at pp. 465-466 [listing cases that found the exception to apply after three weeks, six

months, ten months, and three years].) We are not persuaded by either of the People's

arguments.

       Despite agreeing that Evidence Code section 1237 does not mandate any specific

incantation to establish that the fact recorded was fresh in the declarant's mind when the

statement was made, we still need to see some indicia of freshness in the record. Here,

we find support for the claim of a lack of freshness in light of the amount of time between

when the events occurred (2007) and when the statements were made (2013). For

example, L.N. said she was honest when she talked to the detectives. She agreed that the

conversation with the detectives occurred "closer in time" than the trial to the statements

allegedly made by Royal. And she stated that when she talked to the detectives, she

"independently remembered" the conversation with Royal. None of these statements

                                             34
support a finding that the facts were "fresh" in L.N.'s mind at the time she talked to law

enforcement in 2013, six years after the subject events.

       The People all but ignore the fact that a six year gap exists between the facts in

question (what Royal said in 2007) and when L.N. repeated those alleged statements to

the detectives in 2013. They point out that no court has declared such a gap renders

Evidence Code section 1237 inapplicable. That said, the People have provided no case

where a court had to consider such a lengthy gap in analyzing the admissibility of a

statement under Evidence Code section 1237. Indeed, the largest gap of time for that

exception under California law in any case cited by the parties is about three months.

(See Cowan, supra, 50 Cal.4th at pp. 465-466.) And our high court noted a federal case

in which a federal court found a three year gap was not disqualifying under the federal

corollary to Evidence Code section 1237 (Cowan, at p. 466, citing U.S. v. Senak (7th

Circ. 1975) 527 F.2d 129, 139-142.). Thus, the six year gap here is significantly longer

than the gap in any case provided by the parties. Although we stop short of concluding

that a six year gap between the incident and the recorded statements is too long under

Evidence Code section 1237 as a matter of law, such a considerable gap of time requires

a party trying to admit the subject statements to lay a sufficient foundation to show that

the incident or facts were "fresh" in the declarant's mind at the time the statements were

recorded. And even though the law does not require magic words to lay the proper

foundation, when the time between events is so extended (as it is here) there simply needs

to be more offered to establish the freshness element. Below, that was lacking; thus, the



                                             35
court abused its discretion when it found the subject statements admissible under the past

recollection recorded exception to the hearsay rule.

       Having concluded that the trial court abused its discretion in admitting portions of

L.N.'s interview with detectives as past recollections recorded, we next must evaluate

whether the error was harmless. Although Royal acknowledges that the California

Supreme Court has employed the harmless error standard under People v. Watson (1956)

46 Cal.2d 818 (Watson) to evaluate errors in admitting evidence under Evidence Code

section 1237 (see People v. Parks (1971) 4 Cal.3d 955, 961 (Parks)), he claims that

Cummings, supra, 4 Cal.4th 1233 implies that we should apply the more stringent

harmless error standard under Chapman v. California (1967) 386 U.S. 18 (Chapman).5

To this end, Royal focuses on the language in Cummings where the court stated:

"Admission of evidence pursuant to Evidence Code section 1237 does not impermissibly

deny defendants their federal Sixth Amendment or state article I, section 15 constitutional

rights to confrontation and cross-examination if the record of the witness's past statement

is properly authenticated and the statutorily required foundation for admission is laid."

(Cummings, at p. 1292, fn. 32.) Based on this portion of Cummings, Royal maintains that

if a court erroneously admits a statement under Evidence Code section 1237 and the

required statutory foundation was not laid then a defendant's constitutional rights of

confrontation have been violated. Because such an error involves a constitutional




5     Under Chapman, the People must establish that any error was harmless beyond a
reasonable doubt. (See Chapman, supra, 386 U.S. at p. 24.)
                                             36
dimension, Royal urges us to apply the Chapman standard. (Cf. People v. Fudge (1994)

7 Cal.4th 1075, 1103.) We do not share Royal's expansive reading of Cummings.

       In Cummings, our high court did not discuss the proper standard for a harmless

error review of evidence improperly admitted under Evidence Code section 1237.

Rather, the court determined that the trial court did not err in admitting evidence under

the past recollection recorded exception to the hearsay rule. (See Cummings, supra,

4 Cal.4th at pp. 1293-1294.) Thus, having found no error, it did not engage in any

harmless error analysis. Accordingly, we cannot rely on Cummings for the proposition

that the Chapman harmless error standard is proper here. (See People v. Evans (2008) 44

Cal.4th 590, 599 [cases are authority only for points actually involved and actually

decided].)

       In the instant matter, we conclude the Watson harmless error standard is the proper

one to apply. (See Parks, supra, 4 Cal.3d at p. 961.) Our conclusion is buttressed by the

fact that Royal's trial counsel was able to thoroughly cross-examine the subject declarant

at trial. Therefore, he was able to probe the bias, lack of recall, evasiveness, and all other

matters of credibility of the witness, concerning both the time at which she made her

statements and at the time of her trial testimony. Such an opportunity satisfies the

requirement of the Sixth Amendment. (See United States v. Owens (1988) 484 U.S. 554,

559-560.) And article I, section 15 of the California Constitution requires no more. (See

In re Damon H. (1985) 165 Cal.App.3d 471, 477.) Moreover, Royal also testified during

the trial. Consequently, defense counsel could have asked him directly if he ever made

the statements that L.N. claimed he made in her interview with the detectives. In short,

                                              37
on the unique facts of this case, we do not see the trial court's error in admitting evidence

under Evidence Code section 1237 to raise a constitutional issue.

       Under Watson, Royal must show that it is reasonably probable he would have

received a more favorable outcome absent the alleged error. (Watson, supra, 46 Cal.2d at

p. 836.) He has not carried his burden here.

       Royal's primary argument that the evidentiary error was not harmless is that the

evidence admitted was "vital" for the prosecution. However, this assertion ignores the

other evidence properly admitted that supports the conviction. For example, when L.N.'s

testimony was read into the record, she testified that she had seen Royal arm himself with

a shotgun, that Royal had called and asked to be picked up at the supermarket on the

night of the shooting, and that after he was picked up, Royal stated he had shot someone.

None of these statements were admitted subject to a past recollection recorded exception

to the hearsay rule. Therefore, while it is accurate that some of the statements admitted

under Evidence Code section 1237 directly related to the murder, they provided

background and context to L.N.'s testimony that Royal had armed himself with a shotgun

and then confessed to shooting R.J. Further, Royal's trial counsel had the opportunity to

extensively cross-examine L.N. As such, on the record before us, we conclude that Royal

did not show a reasonable likelihood the outcome of his trial would have been different.




                                             38
                                             III

                          SCOPE OF CROSS-EXAMINATION

                                  A. Royal's Contentions

       Royal's final argument is that the trial court denied him his Sixth Amendment right

to confrontation when it precluded his trial counsel from cross-examining a prosecution

expert witness concerning whether L.N.'s demands for $15,000 and immunity in

exchange for her testimony were consistent with the expert's profile of human trafficking

victims.

                                      B. Background

       The trial court declared L.N. unavailable and determined that her prior testimony

would be read into the record. While her testimony was being read to the jury, the

prosecutor alerted the court to the fact that L.N.'s attorney contacted her and let her know

that L.N. would be willing to testify in exchange for immunity, her mother to be left

alone, and $15,000.

       The prosecution called a clinical social worker as a sexual trafficking expert. The

expert testified that women who are trafficked and abused commonly suffer from

memory loss and disassociation. The expert also testified that she would expect a human

trafficking survivor to be very fearful and to suffer from manipulation and brainwashing.

She also opined that such a person could have a brain that was "scrambled."

       During a break in the proceedings, defense counsel informed the court of his

desire to ask the expert about L.N.'s attempt "to extort the prosecution for her testimony."

Counsel believed that the statements would come in as an admission of a party (see Evid.

                                             39
Code, § 1220) and that L.N.'s statements were not hearsay because they qualified as a

declaration against interest (see Evid. Code, § 1230). The court, however, was not

convinced that the statements were against L.N.'s interest. The court also explained that

Royal's most daunting problem is that he did not have any evidence regarding L.N.'s

demands to testify.

           Moreover, the trial court observed that defense counsel was relying on "the

prosecutor repeating what [L.N.'s attorney] said, repeating allegedly what his client said."

The court was concerned about "multiple layers of hearsay" and the fact that Royal was

"treating that as if [he had] proven it as an absolute fact." The court then denied Royal's

request to ask the expert about L.N.'s demands she wanted fulfilled before she would

testify.

           On cross-examination, the expert testified that it would be "somewhat unusual" for

a prostitute to be allowed to see her family whenever she wanted. She also admitted that

it would be "very unusual" for a prostitute to hang out with her pimp's parents, go to a

casino, go grocery shopping, go to a post office box, and drive around in her mom's car.

Royal's trial counsel, however, was not permitted to question the expert about L.N.'s

demands.

           Later in the trial, the court stated its desire to conduct "a[n] [Evidence Code

section] 402 hearing with [L.N.'s attorney]." According to the court, there needed to be

"a complete record of what his statements would or would not be." The attorney agreed

to testify at an Evidence Code section 402 hearing. At the hearing, L.N.'s attorney

testified consistently with the prosecutor's representations of L.N.'s demands.

                                                 40
       Following the attorney's testimony, the court stated, "I mean, it's kind of hard to

not see the relevance and the materiality of this." The parties then discussed at length

how the evidence of L.N.'s demands should be presented to the jury. Ultimately, L.N.'s

attorney was called as a witness by the defense and testified about L.N.'s three demands.

There is no indication in the record that, after the attorney testified, Royal's trial counsel

asked for the prosecution's expert to be recalled as a witness or otherwise revisited the

issue of the scope of the expert's cross-examination.

                                         C. Analysis

       "An expert witness may be cross-examined about 'the matter upon which his or her

opinion is based and the reasons for his or her opinion.' [Citation.] The scope of this

inquiry is broad and includes questions about whether the expert sufficiently considered

matters inconsistent with the opinion. [Citation.] Thus, an adverse party may bring to

the attention of the jury that an expert did not know or consider information relevant to

the issue on which the expert has offered an opinion." (People v. Doolin (2009) 45

Cal.4th 390, 434 (Doolin).) Although the scope of cross-examination may be extensive,

it is not boundless. Indeed, the trial court has wide discretion in determining the

appropriate scope of cross-examination. (People v. Lancaster (2007) 41 Cal.4th 50, 102.)

       Here, Royal contends the trial court violated his Sixth Amendment rights by

limiting the scope of his counsel's cross-examination of the prosecution's expert witness.

The Sixth Amendment affords all defendants the right to confront and cross-examine

witnesses against them. (See People v. Pearson (2013) 56 Cal.4th 393, 454 (Pearson).)

The defense is typically given wide latitude to test the credibility of such witnesses, but

                                              41
the trial court may still place reasonable limits on defense counsel's inquiries. (Id. at

p. 455.) We review the trial court's evidentiary rulings for an abuse of discretion, and the

court's exercise of discretion in limiting the scope of cross-examination does not violate

the defendant's Sixth Amendment right to confrontation unless " ' "the prohibited cross-

examination would have produced 'a significantly different impression of [the witness's]

credibility.' " ' " (Pearson, at pp. 455-456.)

       Below, the trial court prohibited defense counsel from asking the prosecution's

expert witness about L.N.'s demands from the prosecution before she would agree to

testify. In doing so, the court clearly explained that it was limiting the scope of the cross-

examination because there was no admissible evidence of L.N.'s demands. The court

pointed out that Royal's trial counsel was relying on "multiple layers of hearsay" because

it was the prosecutor who relayed to the court what L.N.'s attorney had said about a

conversation he had with his client.

       In his reply brief, Royal argues that the court's evidentiary ruling was incorrect

under People v. Sanchez (2016) 63 Cal.4th 665. Specifically, he relies on the following

quote from that case: "An examiner may ask an expert to assume a certain set of case-

specific facts for which there is independent competent evidence, then ask the expert

what conclusions the expert would draw from those assumed facts. If no competent

evidence of a case-specific fact has been, or will be, admitted, the expert cannot be asked

to assume it." (Id. at pp. 676-677.) Royal contends the verbiage "or will be" supports his

position because "[t]here existed little doubt" that evidence of L.N.'s demands would be

admitted at trial. In support of this position, however, Royal only points to the fact that

                                                 42
L.N. hired an attorney and her attorney informed the prosecutor of L.N.'s demands in

order to testify. We fail to see how this argument relates to the lack of evidence of L.N.'s

demands at the time defense counsel sought to cross-examine the expert about them.

       Royal also claims that L.N.'s demands were admissible as a declaration against

interest under Evidence Code section 1230.6 Nonetheless, this argument overlooks the

fact, at that time defense counsel sought to cross-examine the expert regarding L.N.'s

demands, the source of L.N.'s demands was the prosecutor. The prosecutor, in turn,

became aware of the demands from L.N.'s attorney. Thus, the prosecutor's statement to

the court about L.N.'s demands contained multiple levels of hearsay. Royal offers no

explanation how the prosecutor's statements about what the attorney told her about L.N.'s

demands would have been admissible.

       Yet, as the People emphasize, eventually the evidence of L.N.'s demands was

admitted into evidence when L.N.'s attorney testified about them at Royal's second trial.

Indeed, it was the defense who called the attorney as a witness. Thus, at that point, after

the prosecution's expert testified, evidence of the demands was before the jury. Royal's

trial counsel, however, did not seek to recall the expert so he could ask her about the

impact of L.N.'s demands on the expert's opinions. Having not done so, we agree with


6       Evidence Code section 1230 provides: "Evidence of a statement by a declarant
having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if
the declarant is unavailable as a witness and the statement, when made, was so far
contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the
risk of civil or criminal liability, or so far tended to render invalid a claim by him against
another, or created such a risk of making him an object of hatred, ridicule, or social
disgrace in the community, that a reasonable man in his position would not have made
the statement unless he believed it to be true."
                                             43
the People that Royal forfeited any claim that his rights under the confrontation clause

were violated. (See People v. Lucas (2014) 60 Cal.4th 153, 330.)

       In summary, we conclude the trial court did not abuse its discretion prohibiting the

defense from asking the prosecution's expert about L.N.'s demands. Although the scope

of the cross-examination is typically broad (see Doolin, supra, 45 Cal.4th at p. 434), this

principle does not require a trial court to ignore the rules of evidence. Below, the court

correctly stated that there was no admissible evidence of L.N.'s demands before it at the

time defense counsel sought to cross-examinate the expert about the demands. Later, the

demands were offered into evidence. Therefore, the jury heard about L.N.'s demands and

could use those demands to evaluate L.N.'s credibility. If at trial, defense counsel

believed it was important to ask the expert about these demands, he could have sought to

recall the expert and ask her about them. He did not do so. Further, here, Royal does not

explain how the expert's failure to testify about the impact, if any, of L.N.'s demands on

her opinion " ' "produced 'a significantly different impression of [the expert's] credibility.'

" ' " (Pearson, supra, 56 Cal.4th at p. 455.) Without such a showing, Royal has not

carried his burden of exhibiting that the trial court' exercise of discretion in limiting the

scope of the cross-examination of the expert violated the Sixth Amendment. (Pearson, at

pp. 455-456.)




                                              44
                                 DISPOSITION

     The judgment is affirmed.



                                               HUFFMAN, J.

WE CONCUR:




McCONNELL, P. J.




GUERRERO, J.




                                     45
Filed 12/10/19
                           CERTIFIED FOR PUBLICATION


                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA



THE PEOPLE,                                       D074343

        Plaintiff and Respondent,

        v.                                        (Super. Ct. No. SCE361596)

MARLIN ROYAL,                                     ORDER CERTIFYING OPINION
                                                  FOR PUBLICATION
        Defendant and Appellant.


THE COURT:

        The opinion in this case filed November 26, 2019, was not certified for

publication. It appearing the opinion meets the standards for publication specified in

California Rules of Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for

publication is GRANTED.

        IT IS HEREBY CERTIFIED that the opinion meets the standards for publication

specified in California Rules of Court, rule 8.1105(c); and
      ORDERED that the words "Not to Be Published in the Official Reports" appearing

on page 1 of said opinion be deleted and the opinion herein be published in the Official

Reports.



                                                                      McCONNELL, P. J.

Copies to: All parties




                                            2
