HOLLENHORST, J.
Following a jury trial, defendant Derrick Dovone Banks was convicted of corporal injury on a cohabitant (Pen. Code,
Because resolution of the issues raised on appeal is not dependent on a detailed recitation of the facts, they are summarized herein. On May 25, 2009, Tyrnisha Byrd called 911 and stated that she had just been assaulted by defendant, her boyfriend. She said they were fighting and he threw her, "socked" her, and slapped her, and she was bleeding from her legs. She also complained of pain in her arm and eye. The call ended with the arrival of Deputy Daniel Flores of the Riverside County Sheriff's Department.
Byrd did not appear at the trial, and thus, her testimony from the preliminary hearing was introduced into evidence. At the preliminary hearing, Byrd recanted what she had told the 911 operator and Deputy Flores, downplayed defendant's actions, took the blame for their argument and for reporting the assault, and claimed she had just been angry at defendant. In fact, she claimed she lied to the deputy about defendant hurting her. Byrd identified defendant as her boyfriend of two years and said they had been living together.
Deputy Flores testified that he found Byrd crying and hysterical, with numerous injuries. Initially, she was too upset to be able to tell him what had happened. The deputy recorded his interview with her. After speaking with her briefly, he ordered dispatch to send the fire department to treat her. After she was treated, the interview continued and other deputies took pictures of her apartment. The recorded interviews were played for the jury. In the first interview, Byrd accused defendant of "snooping" in her things, and described how defendant accused her of being nosey because she saw money in his pocket. Defendant called Byrd names, grabbed her hair, grabbed her by her neck when she tried to leave, threw her causing her to hit her head, dragged her to the bedroom, picked her up, threw her on the bed, and slapped and punched her. When he threw her on the bed, her arm hit the hot iron. Defendant got on top of her and hit her, then choked her and she had trouble breathing. He told her he was going to kill her. She slapped him and scratched him. He finally let her go and she ran away, knocking over the fish tank and cutting herself. She ran to a neighbor's apartment and called 911. Byrd said she really thought defendant was going to kill her because she was losing her breath and her face still hurt.
Deputy Flores's interview with defendant was also recorded and played for the jury. After waiving his Miranda
Because Byrd failed to appear and testify at trial, the trial court found that she was unavailable and allowed the prosecution to introduce her pretrial statements (police interviews) under the confrontation clause and Evidence Code sections 240 and 1370. On appeal, defendant contends the trial court erred in denying the request for a continuance (while finding "good cause") coupled with finding that the absent witness was "`unavailable' for trial" within the meaning of section 240, subdivision (a)(5). He further contends the prosecutor could have secured Byrd's attendance if he had made a timely request for continuance or a diligent effort to find her. More importantly, defendant argues that by admitting the "testimonial" statements of Byrd, he was denied his right to confront and cross-examine her about the taped interview statements, especially since her preliminary hearing testimony was exculpatory.
Byrd appeared for the preliminary hearing on August 3, 2009, trial on February 26, 2010, and again on March 19, 2010, after being ordered to do so. Several continuances were requested and/or stipulated to and granted by the trial court. There is no indication as to whether any witnesses showed up on the dates when the continuances were granted. Rather, according to the record, neither counsel opposed the continuances, suggesting they would have informed their witnesses there was no need to show up. Nonetheless, on August 10, 2010, Byrd was subpoenaed to appear on August 11; however, she failed to do so. A bench warrant was issued. The prosecution requested a continuance to produce Byrd; however, the trial court denied the request because the prosecution had already stated "ready" for trial. At the prosecution's inquiry, the trial court noted that good cause existed to grant the continuance but deemed it untimely.
Later that day, the court held a hearing pursuant to Evidence Code section 240 to determine if the prosecution had exercised "due diligence" in locating Byrd. The prosecution filed an affidavit of due diligence from Amanda Chaple, an investigator, stating that she had served Byrd with a subpoena on August 10 but was unable to locate her on August 11 and 12 after Byrd failed to appear on August 11 and a bench warrant was issued. Chaple testified that she went to Byrd's place of employment in Moreno Valley. She then went to a residence in Perris and to Byrd's mother's address in Corona, where Chaple was given a cell phone number by Byrd's sister, which turned out to be the employer's. Chaple then returned to Perris, left a message with defendant's mother, called three hospitals and the county jail with negative results, ran a computer and CLETS (California Law Enforcement Telecommunication System) checks for any other addresses, and contacted Byrd's employer and sister again. However, Chaple was unable to locate Byrd. Chaple also testified that Byrd had stated that she did not have to appear and would not appear for trial.
The prosecution asked the court to find Byrd unavailable and admit her preliminary hearing testimony and recorded statements for impeachment. Defendant argued that the People should have obtained a material witness warrant and arrested Byrd before she learned she had to be in court on August 11. The court found that Byrd was unavailable and that the prosecution exercised due diligence in trying to ensure her appearance for trial. (Evid. Code, § 240.)
"`A continuance in a criminal trial may only be granted for good cause. (§ 1050, subd. (e).) "The trial court's denial of a motion for continuance is reviewed for abuse of discretion." [Citation.] "There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." [Citations.]' [Citation.]" (People v. D'Arcy (2010) 48 Cal.4th 257, 287-288.) Defendants bear a heavy burden when attempting to show an abuse of discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.)
Here, the victim in the case, Byrd, was the key witness. According to the record, she appeared for the preliminary hearing on August 3, 2009, trial on February 26, 2010, and again on March 19, after being ordered to do so. From March to August, trial was continued at the request and/or stipulation of counsel. With a firm trial date set for August 11, the prosecution served a subpoena on August 10 for Byrd's appearance the next day. Upon accepting service, Byrd, for the first time, indicated she did not have to appear and would not be appearing. On August 11, when Byrd failed to appear, the prosecution requested a continuance. Although the court acknowledged there was good cause to continue, it declined to do so because the People had announced "ready."
According to defendant, the trial court erred in denying the prosecution's request for a continuance, having found "good cause," and then finding that the absent witness was "unavailable" within the meaning of section 240, subdivision (a)(5). More specifically, defendant claims "the finding of good cause for the continuance was legally inconsistent with the finding of unavailability of the witness." We agree and disagree. Although we conclude there was no error in denying the request for a continuance, the trial court did err in finding good cause.
To begin with, the trial court explained that because the People had "announced ready," no continuance would be granted. From all appearances, at the time the People announced "ready" to begin, it was not unreasonable to believe that Byrd, the key witness, would comply with the subpoena. She had appeared at the preliminary hearing and when the case was initially called for trial. There is nothing in the record indicating that at any time before August 10 she was a flight risk. Rather, her absence was an unforeseen circumstance, for which the trial court found good cause for a continuance. However, given the record before us, we conclude the trial court erred in this finding, because the facts to which Byrd would testify could be proven by using her prior statements to Deputy Flores and her testimony at the preliminary hearing.
"The prosecution has the burden of showing good cause. `When, as in the present case, a claim of good cause is based on the need for additional time to secure the attendance of prosecution witnesses, a particularized showing is required . . . . ". . . (1) [t]hat the [prosecution] has exercised due diligence in an attempt to secure the attendance of the witness at the trial by legal means; (2) that the expected testimony is material; (3) that it is not merely cumulative; (4) that it can be obtained within a reasonable time; and (5) that the facts to which the witness will testify cannot otherwise be proven." [Citations.]' [Citation.] The prosecutor neither attempted to nor satisfied this test." (Perryman v. Superior Court (2006) 141 Cal.App.4th 767, 777-778.)
As noted above, Byrd was the complaining witness, whose testimony was material to the prosecution's case. She had been interviewed by the investigating deputy and she had testified at the preliminary hearing. Thus, the facts to which she would have testified could be proved by introducing her prior statements and testimony. Furthermore, the court was aware of her prior statements and testimony. While the absence of the complaining victim may provide good cause for a continuance, there must be a showing that the expected testimony is not merely cumulative and cannot otherwise be proved. (Perryman v. Superior Court, supra, 141 Cal.App.4th at p. 778.) Given Byrd's prior statements and testimony, no showing could have been made. Accordingly, the trial court was within its discretion in denying the prosecution's motion to continue.
In a related argument, defendant contends the prosecutor could have secured Byrd's attendance if he had made a timely request for continuance or a diligent effort to find her.
A witness may be deemed unavailable if the proponent of the witness's testimony has been reasonably diligent in its efforts to locate the witness but has been unable to do so. (People v. Cromer (2001) 24 Cal.4th 889, 892; Evid. Code, §§ 240, subd. (a)(5), 1370, subd. (a)(2).) On appeal, this court conducts a two-stage inquiry in determining whether the prosecution exercised due diligence to attempt to locate an absent prosecution witness: "[T]he first inquiry is a matter of determining the historical facts—a detailed account of the prosecution's failed efforts to locate the absent witness. Those facts will rarely be in dispute. When they are, a reviewing court must, of course, apply a deferential standard of review to the trial court's factual findings. [¶] [T]he second inquiry—whether these historical facts amount to due diligence by the prosecution—requires application of an objective, constitutionally based legal test to the historical facts. [Citation.]" (People v. Cromer, supra, at p. 900.) Thus, we "independently review a trial court's determination that the prosecution's failed efforts to locate an absent witness are sufficient to justify an exception to the defendant's constitutionally guaranteed right of confrontation at trial." (Id. at p. 901, fn. omitted.)
We conclude the prosecution exercised due diligence in its attempt to procure Byrd's attendance. The prosecution subpoenaed Byrd on August 10 to appear on August 11; however, on August 10, for the first time, Byrd stated she did not have to attend. Defendant complains that "the prosecution failed to timely seek an arrest warrant for . . . Byrd when she failed to return to court for trial after being ordered to do so on March 19, 2010." He claims Chaple had been trying for months to serve a subpoena on Byrd. We find no support for defendant's complaint. As we have previously observed, the record is void of any indication that prior to August 10, 2010, Byrd would not comply with the subpoena to appear and testify at trial. There is no evidence that Byrd's failure to show up on August 11 was the result of her conscious decision to disobey a subpoena, or simply because she was called and told not to show up because the trial was going to be continued. Further, Chaple testified that her search for Byrd was "on and off" for months for the scheduled court appearances. With each new trial date, Chaple would have had to subpoena the witnesses. Chaple did not testify that Byrd had been missing for months. Rather, she testified that she had searched for Byrd "on and off since the case had been going." As defendant acknowledges, "[n]either party developed the record to establish which prior court date(s) . . . Byrd failed to appear at or which dates that the prosecution wanted her appearance." Thus, Byrd's absence was unexpected, and the prosecution did not know prior to August 11 that a continuance would be necessary. From that point on, the prosecution was required to exercise due diligence.
"The term `due diligence' `"connotes persevering application, untiring efforts in good earnest, efforts of a substantial character."' [Citation.] `Relevant considerations include "`whether the search was timely begun'" [citation], the importance of the witness's testimony [citation], and whether leads were competently explored [citation].' [Citation.]" (People v. Valencia (2008) 43 Cal.4th 268, 292.) Here, upon learning of Byrd's absence, the prosecution exercised due diligence in attempting to locate her. On the totality of the record before this court, the trial court correctly concluded that Byrd was unavailable as a witness. The fact that defendant suggests other things that could have been done by the prosecution to bring Byrd to trial is irrelevant. "`"That additional efforts might have been made or other lines of inquiry pursued does not affect this conclusion. [Citation.] It is enough that the People used reasonable efforts to locate the witness." [Citation.]'" (Id. at p. 293.)
Finally, defendant argues that by admitting the "testimonial" statements of Byrd, he was denied his right to confront and cross-examine her about the taped interview statements, especially since her preliminary hearing testimony was exculpatory.
The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment (Pointer v. Texas (1965) 380 U.S. 400, 401, 403), provides that "`In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .'" In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States Supreme Court held that the Sixth Amendment guarantees a defendant's right to confront those "who `bear testimony'" against him. (Id. at p. 51.) Testimonial statements of a witness who does not appear at trial are inadmissible unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. (Id. at pp. 53-54.) Whether a statement is testimonial presents a question of law, which we review de novo. (See People v. Seijas (2005) 36 Cal.4th 291, 304.)
A determination as to whether a statement is testimonial is key to deciding whether a defendant's right to confront or cross-examine witnesses has been violated. In Crawford, the United States Supreme Court recognized several types of "testimonial" statements, including, but not limited to, ex parte in-court testimony or its functional equivalent, i.e., material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements, and statements made under circumstances that would lead an objective witness reasonably to believe that the statement would be used at a later trial. (Crawford, supra, 541 U.S. at pp. 51-52; Melendez-Diaz v. Massachusetts (2009) ___ U.S. ___, ___ [129 S.Ct. 2527, 2531, 2009 U.S. Lexis 4734].)
In Davis v. Washington (2006) 547 U.S. 813, 817, the United States Supreme Court considered whether statements made to law enforcement personnel during a 911 call and at a crime scene were testimonial and therefore subject to the requirements of the Sixth Amendment confrontation clause. It concluded: "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Id. at p. 822, fn. omitted; People v. Cage (2007) 40 Cal.4th 965, 982 (Cage).)
The Davis v. Washington court formulated and applied this crucial distinction between testimonial and nontestimonial interrogation statements in considering two companion cases, State v. Davis (2005) 154 Wn.2d 291 [111 P.3d 844] and Hammon v. State (Ind. 2005) 829 N.E.2d 444 (Hammon). (Davis v. Washington, supra, 547 U.S. at pp. 817-821.) In State v. Davis, the victim of a domestic dispute dialed 911 and told the operator she was at home and the defendant was assaulting her with his fists. The operator asked the caller to identify the defendant by name, and the caller did so. (Davis v. Washington, supra, at pp. 817-818.) Within four minutes of the 911 call, two police officers responded to the home and saw that the victim had "`fresh injures on her forearm and her face . . . .'" (Id. at p. 818.) The defendant was charged with violating a domestic no-contact order. (Ibid.) At trial, the prosecution's only witnesses were the two officers who responded to the call. (Ibid.) The victim/911 caller did not appear, but the trial court admitted the transcript of the 911 call in which the caller identified the defendant as her assailant. (Id. at p. 819.)
In Hammon, police officers responded to a "`reported domestic disturbance'" at the home of the defendant and his wife, Amy Hammon. (Davis v. Washington, supra, 547 U.S. at p. 819.) They found Amy "alone on the front porch, appearing "`somewhat frightened."'" (Ibid.) Though Amy told the officers nothing was the matter, she allowed them to enter the home, where they found the defendant in the kitchen. (Ibid.) The defendant told the officers that "`he and his wife had "been in an argument" but "everything was fine now" and the argument "never became physical."'" (Ibid.) The officers took Amy into the living room and "`again asked [her] what had occurred.'" (Ibid.) Amy told the officers that defendant had broken their furnace and "`shoved [her] down on the floor into the broken glass. . . .'" (Id. at p. 820.) After hearing Amy's account, the officers had her sign a battery affidavit . (Ibid.) The officers did not allow the defendant to participate in their living room conversation with Amy, and he became angry when he was rebuffed. (Ibid.) The defendant was later charged with domestic battery and violating his probation. (Ibid.) Amy did not testify at trial, but one of the officers who questioned Amy testified to what Amy told him and authenticated her battery affidavit. (Id. at pp. 820-821.)
The high court concluded that the victim/911 caller's statements to the 911 operator in State v. Davis were not testimonial, but that Amy's statements to the interrogating officer in Hammon were testimonial. (Davis v. Washington, supra, 547 U.S. at pp. 828, 830.) As indicated, the critical distinction between the two scenarios was that the statements in State v. Davis were made "under circumstances objectively indicating that the primary purpose of the interrogation [was] to enable police assistance to meet an ongoing emergency," while in Hammon there was no ongoing emergency, and "the primary purpose of the interrogation [was] to establish or prove past events potentially relevant to later criminal prosecution." (Davis v. Washington, supra, at p. 822, fn. omitted.)
The high court further explained that the victim/911 caller in State v. Davis was not acting as a witness and was not testifying. (Davis v. Washington, supra, 547 U.S. at p. 828.) Her statements lacked "`"a solemn declaration or affirmation made for the purpose of establishing or proving some fact"'" (id. at p. 826) and concerned events as they were actually happening rather than as they had happened (id. at p. 827). Moreover, the victim/911 caller in State v. Davis was facing an ongoing emergency, and her statements were elicited in order to resolve that emergency. (Davis v. Washington, supra, at p. 827.)
By contrast, Amy's statements to the officer in Hammon were given in response to an interrogation that was intended to ascertain what had happened as opposed to what was happening, and there was no ongoing emergency. (Davis v. Washington, supra, at pp. 829-830.) Instead, Amy solemnly and deliberately recounted what had happened in response to the officer's questions. (Id. at p. 830.) As such, Amy's statements were "an obvious substitute for live testimony" and were "inherently testimonial." (Ibid., fn. omitted.)
In Cage, the California Supreme Court distilled "several basic principles" from Davis v. Washington. (Cage, supra, 40 Cal.4th at p. 984.) "First . . . the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined `objectively,' considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial." (Ibid., fns. omitted.)
Applying the principles articulated in Davis v. Washington and Cage, it is clear that in this case, Byrd's 911 call was nontestimonial and admissible. However, regarding her statement to Deputy Flores, we agree with the People and conclude that it was both nontestimonial and testimonial. Initially it was nontestimonial, because it was made at the conclusion of the 911 call upon the deputy's arrival while things were in a chaotic state. However, after Byrd received medical attention, it appears the statement became testimonial as she responded to the deputy's questions intended to establish or prove facts that had occurred for use in a criminal trial. (Davis v. Washington, supra, 547 U.S. at p. 822; Cage, supra, 40 Cal.4th at p. 984.)
Notwithstanding the above, the admission of Byrd's statements did not violate defendant's right to confront or cross-examine her at the preliminary hearing as to what happened on May 25, 2009, her 911 call, and her recorded statements to Deputy Flores. As the transcript of the preliminary hearing shows, Byrd helped defendant's case by recanting her previous statements to the 911 operator and the deputy. Defense counsel elicited Byrd's purportedly "truthful" version of the events. Nonetheless, defendant argues that because Byrd's "preliminary hearing testimony was exculpatory, and she denied making accusatory statements to the [d]eputy, [she] was effectively unavailable to cross-examine on those statements even if [defendant] had attempted to do so." We disagree.
"`[A] defendant's interest and motive at a second proceeding is not dissimilar to his interest at a first proceeding within the meaning of Evidence Code section 1291, subdivision (a)(2), simply because events occurring after the first proceeding might have led counsel to alter the nature and scope of cross-examination of the witness in certain particulars. [Citation.] The "`motives need not be identical, only "similar."'" [Citation.] "Both the United States Supreme Court and this court have concluded that `when a defendant has had an opportunity to cross-examine a witness at the time of his or her prior testimony, that testimony is deemed sufficiently reliable to satisfy the confrontation requirement [citation], regardless whether subsequent circumstances bring into question the accuracy or the completeness of the earlier testimony.'" [Citations.]' [Citation.]" (People v. Valencia, supra, 43 Cal.4th at pp. 293-294.)
Here, defense counsel had the "opportunity" to cross-examine Byrd, and did cross-examine her. If his cross-examination was not as extensive as it may have been, this was a tactical decision by defense counsel given Byrd's favorable testimony for the defense. As the People point out, the jury acquitted defendant on the criminal threats charge. The People argue that the acquittal of that charge was reasonable, since it "could not be easily corroborated by the injuries that were visible to Deputy Flores." However, regarding the other charges, Byrd's testimonial statements were corroborated by the 911 call, Deputy Flores's personal observation of Byrd's injuries, and photographs taken of the apartment. Accordingly, we reject defendant's claim that he was unable to adequately confront and cross-examine Byrd.
The judgment is affirmed.
RAMIREZ, P.J. and RICHLI, J., concurs.
