THE PEOPLE, Plaintiff and Respondent, v. ALFRED FOY, Defendant and Appellant.
No. A141073
First Dist., Div. Five
Mar. 1, 2016
245 Cal. App. 4th 328
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Laurence K. Sullivan, Moona Nandi and Michael Rhoads, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BRUINIERS, J.—Alfred Foy was convicted by a jury of seven counts of second degree robbery (
I. FACTUAL AND PROCEDURAL BACKGROUND2
Foy and codefendant Koshawn Rackley were charged by information with seven counts of second degree robbery (
The case was assigned for jury trial, which began on July 10, 2012. On July 26, 2012, the jury convicted Rackley of all counts and found the firearm allegations against him true. However, the jury deadlocked on all charges against Foy, and the court declared a mistrial. The case was assigned for retrial in July 2013. Foy agreed to bifurcate and waive jury trial on the prior conviction allegations.
Prosecution‘s Case
On November 18, 2011, Kenneth Henderson was working as an assistant manager at a Jack in the Box restaurant located at 35 Admiral Callahan Lane in Vallejo. At about 8:00 p.m., he was taking an order at the front counter when two African-American men entered the restaurant with handguns. Once inside the restaurant, the two men separated. The taller of the two men, who appeared to be about six feet tall and wearing a black hooded sweatshirt, gloves, and a red bandanna over his face, jumped over the front counter and grabbed Henderson by the back of his collar. The shorter man also wore a dark hooded sweatshirt, gloves, and a red bandanna over his face.
The shorter of the two men robbed the customers seated in the restaurant‘s dining area. Helen Buenviaje was seated in the dining area and checking her voicemail when she heard someone say, “Give me your phone.” When Buenviaje failed to respond, the person repeated the demand. Buenviaje looked up and saw a man standing next to her, holding a gun to her head. She complied with his demands for her cell phone and to get down on the floor.
Shana Dees was working at the restaurant‘s drive-through window when she heard loud noises coming from the lobby. She walked over and saw the taller man standing behind the front counter with his back towards her, and the shorter man in the dining area holding a gun to the head of an older female customer. The taller man turned around and called out to Dees, “Hey, little mama, hey, hey.” At this point, Dees noticed that the taller man was holding Henderson by the collar and pointing a gun at his neck. The taller man said, “Everybody needs to get in the freezer now.”
With his gun to Henderson‘s neck, the man directed several restaurant employees, including Henderson, Dees, Yadwinder Hans, Octavio Ramirez, Taleah Watson, and a person named Marcus, into the freezer towards the back of the restaurant and demanded their cell phones. Dees, Hans, and Ramirez handed over their phones. Meanwhile, the shorter man directed customers into the restrooms.
The taller man brought Henderson out of the freezer and told him to open the cash registers. Henderson complied, and the man removed the money from two cash registers—one located at the front counter and the other in the drive-through area. Each register contained a minimum of $150. At some point, the shorter man joined the taller man at the back of the restaurant, and the latter told the former to “[p]ut the heat on [Henderson], to let him know we‘re serious.” The shorter man then put his gun to Henderson‘s neck, while the taller man asked Henderson where the safe was located. Henderson said it was in the office but that he did not have a key to the office door. The men returned Henderson to the freezer with the others. A few minutes later, Henderson realized the armed men were gone. He left the freezer and locked the front doors. He noticed a green Mitsubishi Mirage leaving the parking lot.
The police were called and arrived at the scene within minutes. Henderson showed them a video of the robbery from the restaurant‘s surveillance system.3 He also told the police about the green Mitsubishi Mirage he saw fleeing the scene. The police received a description of the suspects as two
Wang had an application on his iPhone called “Find My iPhone,” which he used at the suggestion of police to track Song‘s stolen iPhone. Wang‘s phone displayed a map indicating that Song‘s phone was located at 603 Grant Street, a residence on the southwest corner of Lemon and Grant Streets in Vallejo.
Police officers responding to 603 Grant Street saw a green Mitsubishi Mirage parked in front of 622 Grant Street. The hood of the car was still hot and was making popping noises. It had recently rained, and the ground underneath the car was wet. The officers also saw an African-American male, later identified as Rackley, walking in the backyard of 603 Grant. He was ordered to “come out.” Before he did, Rackley was seen placing an item on the ground. The item was an iPad. The police found another iPad with a pink cover inside the garage. Rackley was handcuffed and placed in the backseat of a patrol car. At the time, he was wearing a T-shirt and blue jeans, as well as black shoes similar to those worn by the taller suspect in the surveillance video.
When Rackley was searched, the police found cash exceeding $600 in his jeans pockets (over $400 in one pocket and over $200 in another), two cell phones (one was an iPhone), and a set of keys. The bills were jammed haphazardly in Rackley‘s pockets. It was determined that the iPhone belonged to Song. The other phone belonged to Rackley and contained a photograph of a Smith & Wesson semiautomatic pistol with several magazines, and a photograph of a pistol and a red bandanna.
One of the keys was to a Chevrolet Cobalt parked in front of 609 Grant Street. When the Cobalt was searched, the police found a Samsung cell phone, with its battery removed, on the front passenger seat. The phone was used by Foy, but registered to Foy‘s teenage daughter.4 On the backseat, the police found a lunch box containing a nine-millimeter bullet and a wallet that contained Rackley‘s driver‘s license and identification card. Inside the trunk, the police found one black hooded sweatshirt, a pair of black gloves, a red bandanna, a black beanie, a pair of black shoes with white soles, and a loaded semiautomatic Smith & Wesson handgun, which was similar to the handgun observed in the restaurant‘s surveillance video.
Vallejo Police Officer Robert Greenberg transported Henderson, Song, and Xu from the restaurant to the intersection of Lemon Street and Sonoma Boulevard, where Foy was being loaded onto a gurney. Only Henderson went close enough to look at Foy, but he was unable to identify Foy as one of the robbers. Greenberg searched Foy‘s clothes and removed cash and a computer flash drive from Foy‘s pants pockets.6 Greenberg found $161 in Foy‘s right front pants pocket and $18 in his left front pants pocket. The bills in both pockets were balled up. Henderson, Song, and Xu were also unable to identify Rackley. However, Henderson identified a nearby green Mirage as similar to the one he saw driving away. Xu and Song identified two iPads and an iPhone.
Cell phone records showed that on the day of the robbery several phone calls were placed between the phones used by Foy and Rackley. The records also showed that Foy‘s phone used different Vallejo cell phone towers during the calls, which could indicate that the phone was either moving or equidistant from two towers of varying strengths. Between 7:39 p.m. and 7:59 p.m., the number associated with Foy‘s phone stopped responding to cell phone towers, indicating the phone had been turned off or the battery had been removed.
The videotaped testimony of Song, taken at a conditional examination conducted on June 14, 2012, was played for the jury. Song testified she moved to Connecticut in March 2012, and was in California to attend her graduation at Stanford University. Song testified that she and Xu accompanied the police to two locations after the robbery. At the first location, the police showed the women a flash drive. At the conditional examination, Song was unable to recognize the flash drive from its appearance. However, when
Defense Case
Foy testified in his own defense and acknowledged he had four prior felony convictions that involved moral turpitude. He denied participating in the Jack in the Box robbery. At about noon on the day of the robbery, Foy went to his brother‘s house at 603 Grant Street. He was wearing gray jeans, a white T-shirt, and a black-and-white checkered jacket. Foy met Rackley two weeks prior to the day of the robbery. On November 18, the two exchanged several calls relating to their plans to meet so Foy could buy “some CDs and stuff.” Rackley arrived at 603 Grant Street at about 6:00 or 7:00 p.m.
Foy met Rackley outside. They sat and talked in Rackley‘s car, a Chevrolet Cobalt. Foy sat on the edge of the passenger-side seat with the door open, smoking marijuana. Foy was playing a video game on his cell phone when it froze. Foy removed the phone‘s battery in an attempt to reset it, and put the phone down on the seat. After about 20 minutes, Rackley got out of the car and left with a female friend who arrived in a different car. Foy walked back inside his brother‘s house, but left his phone in Rackley‘s car.
About 10 minutes later, Foy walked to the house located around the corner at 603 Lemon Street. While on his way back to his brother‘s house, Foy saw Rackley and two other men walking towards the open trunk of Rackley‘s Chevrolet Cobalt. One of the people with Rackley was named Dee. Foy invited Rackley and Dee into his brother‘s garage. Foy went inside the house, while Rackley and Dee stayed in the garage. Rackley‘s other companion left.
When Foy noticed several police cars pull up, he ran out the back door and jumped over the fence to 603 Lemon Street. When the police spotted him, Foy continued running. Foy ran because he was scared. He was on parole at the time and had been smoking marijuana. He did not want to go to jail. As he ran, Foy removed his jacket and shirt so that the officers could see he was unarmed. Eventually, a police officer ordered Foy to stop and put his hands in the air, and Foy complied. He denied resisting the officers. Foy asserted he was kicked, struck in the head, shocked with a Taser gun, and bitten by a police dog despite complying with police instructions.
On cross-examination, Foy acknowledged living close to the Jack in the Box at 35 Admiral Callahan Lane and having patronized it in the past. When he was arrested, he testified he had $161 in his wallet and $18 in his pocket. His wallet also contained a receipt, dated two weeks earlier, from the Jack in the Box at 35 Admiral Callahan Lane.
The jury convicted Foy on all counts and found true the allegations that he personally used a firearm. After a bench trial, the court found the prior conviction allegations to be true. Foy filed a motion for new trial, alleging juror misconduct. He also filed an application, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, inviting the court to exercise its
Foy was sentenced to consecutive terms of 40 years to life each on counts one, two, and six—consisting of a 25-year-to-life third strike term, a 10-year firearm enhancement (former
II. DISCUSSION
As previously noted, Foy contends on appeal (1) the trial court‘s admission of Song‘s conditional examination testimony violated the confrontation clause of the Sixth Amendment; (2) the trial court abused its discretion by declining to conduct an evidentiary hearing on alleged juror misconduct; and (3) his aggregate sentence of 120 years to life constitutes cruel or unusual punishment. We agree that the judgment must be reversed because the People failed to demonstrate Song was constitutionally “unavailable.” Accordingly, we need not express our views on Foy‘s other arguments.
“The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution‘s witnesses. (
On review we defer to the trial court‘s factual findings that are supported by substantial evidence, but we “independently review whether the facts demonstrate prosecutorial good faith and due diligence.” (People v. Herrera (2010) 49 Cal.4th 613, 623 (Herrera).)
A. Background
Foy‘s original trial was set to begin on July 10, 2012. Approximately five weeks before trial, the People sought to conditionally examine Song, stating she had recently moved to Connecticut but would be in California for a few days to attend her graduation ceremony, and had no plans to return after June 18, 2012. The trial court granted the People‘s application. Accordingly, on June 14, 2012, Song was sworn and testified at a videotaped conditional examination. Foy attended the conditional examination and his counsel cross-examined Song. At the first trial, Song‘s conditional examination testimony was admitted without objection. Foy‘s trial counsel stated, “That was kind of the idea.”
In advance of the second trial, however, Foy opposed the People‘s motion to admit Song‘s conditional examination testimony. Foy argued the People had failed to show Song‘s unavailability under the Sixth Amendment standard. The People, on the other hand, maintained Song‘s examination testimony was admissible without a showing of due diligence under
At the hearing on the motion, the People insisted there was no obligation to show due diligence because Song was unavailable by virtue of living out of
The trial court tentatively agreed with the People that no showing of due diligence was required, but made a record of the People‘s efforts to procure Song‘s attendance at trial. Matthew Eleopoulos, a criminal investigator with the Solano County District Attorney‘s Office, testified that in early February 2013 he mailed a copy of a subpoena and his business card to Song‘s address in Connecticut. He received no response. Eleopoulos tried to contact Song through a phone number he had for Zhou, but the number was no longer in service. He conducted a search through a law enforcement search engine that produced two telephone numbers for Song—“[t]he one in Connecticut and the one in California which she no longer resided at with no additional phone numbers.”
Eleopoulos also had an e-mail address for Song. Between February and May 2013, he sent Song three e-mails asking her to contact him. He also mentioned the subpoena and that his office would make arrangements for her travel to California. He received no response. On June 26, 2013—approximately one week in advance of trial—Eleopoulos contacted the leasing company associated with Song‘s address and asked if Song still lived there. About an hour and a half later, he received an e-mail and telephone call from Song. The e-mail was sent from the same e-mail address Eleopoulos had been using.
The trial court overruled Foy‘s objection and admitted Song‘s conditional examination testimony. The court explained: “[I]t seems to me there is valid conflicting argument on both sides. On one hand you have Thompson, and [on] the other hand you have these other cases that talk about the need for due diligence. Thompson is the only due diligence requirement with the conditional exam statutes. . . . The (People v. Roldan (2012) 205 Cal.App.4th 969) case is not a conditional exam case, but what is important about Roldan is simply some of the factors that it mentions . . . in terms of what to look for in terms of whether . . . confrontational issues exist. [9] [] . . . Applying the comments in Roldan, it was under oath. Counsel was noticed. It was a conditional exam. This was some time ago, the witness would be moving out of state. It was videotaped, which addresses some concerns . . . .” The videotaped testimony of Song‘s conditional examination was played for the jury.
B. Analysis
Foy contends the trial court erred by admitting Song‘s conditional examination testimony absent a finding of Sixth Amendment unavailability. He asserts: “[T]he prosecution in this case was required to make a good faith, reasonable effort to secure Song‘s presence at trial even though she was not living in California. Although Song was examined conditionally and her testimony was videotaped, the videotaped testimony was still hearsay evidence. Accordingly, the prosecution was required to establish Sixth Amendment unavailability . . . .”
The party requesting the conditional examination must submit an affidavit stating, among other things, that “[t]he witness is about to leave the state, or is so sick or infirm . . . that he or she will not be able to attend the trial . . . .” (
There is no dispute that Song‘s conditional examination was properly taken under California law. The question is whether Song‘s conditional examination testimony was admissible under Sixth Amendment standards. The trial court apparently believed that it need not address due diligence or good faith because Song was per se constitutionally unavailable by virtue of living out of state and having been examined and cross-examined at a videotaped conditional examination.9 In reaching that conclusion, the trial court misplaced its reliance on Thompson, supra, 61 Cal.App.4th 1269.
In Thompson, the defense objected to admission of conditional examination testimony of a witness who, after receiving a subpoena, notified the People
The reviewing court found no statutory error, concluding that the witness‘s planned absence from the state was the equivalent of unavailability. (Thompson, supra, 61 Cal.App.4th at p. 1280.) The court noted an anomaly created by
The Thompson court adopted a pragmatic approach to reconcile
We need not decide the state law question because Foy in his opening brief does not press it. Nonetheless, Thompson does not resolve this appeal because the Thompson court concluded any confrontation clause issue had been forfeited by the defendant‘s failure to raise it before the trial court. (Thompson, supra, 61 Cal.App.4th at p. 1280, fn. 11.) In contrast, Foy‘s confrontation clause objection was expressly detailed to the trial court. We agree with Foy that the constitutional admissibility of Song‘s conditional examination testimony is governed by Barber v. Page, supra, 390 U.S. 719 (Barber), People v. Sandoval (2001) 87 Cal.App.4th 1425 (Sandoval), and Herrera, supra, 49 Cal.4th 613, rather than Thompson.
In Barber, the witness whose testimony was sought in an Oklahoma trial was incarcerated in a federal prison in Texas. (Barber, supra, 390 U.S. at p. 720.) To justify its introduction of the witness‘s preliminary hearing testimony, despite having made no effort to obtain his presence at trial, the prosecution claimed the witness was outside of Oklahoma and therefore per se “unavailable.” (Id. at pp. 722–723.) The United States Supreme Court held the prosecution was required to make a good faith effort to obtain the witness‘s attendance. “Whatever may have been the accuracy of [the prosecution‘s] theory at one time, it is clear that at the present time increased cooperation between the States themselves and between the States and the Federal Government has largely deprived it of any continuing validity in the
In Sandoval, supra, 87 Cal.App.4th 1425, one of the prosecution‘s witnesses testified at the preliminary hearing and was thereafter deported to Mexico. In advance of trial, the witness indicated he was willing to return to testify if he could obtain a visa and passport and if the prosecution would pay his expenses. The prosecution declined to assist him. (Id. at p. 1432.) The witness was deemed unavailable and his preliminary hearing testimony was admitted at trial, under the former testimony exception to the hearsay rule (
The reviewing court agreed that the witness was unavailable under state law, pursuant to
The Sandoval court recognized that other California courts had previously held that ” ‘a [witness who is a foreign citizen] outside of the country can be considered per se unavailable without violating the Sixth Amendment.’ ” (Sandoval, supra, 87 Cal.App.4th at p. 1437, quoting People v. Denson (1986) 178 Cal.App.3d 788, 792, and People v. Ware (1978) 78 Cal.App.3d 822, 833; see Sandoval, at p. 1433, fn. 1.) Nonetheless, a different holding was necessitated by changed conditions. Specifically, the United States had entered into a treaty with Mexico which allowed the prosecutor to request assistance from Mexican authorities in obtaining the attendance of the witness. (Sandoval, at pp. 1440–1441, citing Barber, supra, 390 U.S. at pp. 723–725.) The Sandoval court reasoned: “It is sufficient for our present purposes to point out . . . that the prosecution had
Likewise, in Herrera, our Supreme Court acknowledged that a witness in a foreign country might be unavailable under
Barber, Sandoval, and Herrera teach that admission of a witness‘s former testimony without a finding of constitutional unavailability violates the confrontation clause of the Sixth Amendment. This authority also makes plain that the prosecution‘s efforts to use the Uniform Act or other established procedures for obtaining the presence of an out-of-state witness is relevant to that constitutional test. The People make no attempt to distinguish this authority. In fact, the People ignore it.
The trial court appears to have distinguished this line of authority because Barber, Herrera, and Sandoval involved the admission of preliminary hearing testimony. (Barber, supra, 390 U.S. at pp. 722–723; Herrera, supra, 49 Cal.4th at p. 629; Sandoval, supra, 87 Cal.App.4th at p. 1432.) It is true that
” ‘[T]he primary object of the [confrontation clause of the Sixth Amendment] . . . was to prevent depositions or ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.’ ” (Barber, supra, 390 U.S. at p. 721, italics omitted.) ” ’ “The general principle upon which depositions and former testimony should be resorted to is the simple principle of necessity—i.e., the absence of any other means of utilizing the witness’ [s] knowledge.” ’ ” (People v. Reed (1996) 13 Cal.4th 217, 226.) In order to admit such an out of court statement, the People were required under the Sixth Amendment to establish necessity—in the form of unavailability. (Brumley v. Wingard (6th Cir. 2001) 269 F.3d 629, 641–644 [admission of videotaped deposition testimony without showing witness‘s unavailability violates confrontation clause]; Crawford v. Washington (2004) 541 U.S. 36, 59 [“[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine” (italics added)]; Maryland v. Craig (1990) 497 U.S. 836, 850 [“our precedents confirm that a defendant‘s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured“];11
We agree with Foy that Song‘s conditional examination testimony was admissible only if the People demonstrated a good faith, reasonable effort to secure her attendance at trial. Accordingly, we turn to an independent review of the People‘s efforts to satisfy that burden. (Herrera, supra, 49 Cal.4th at p. 623; Sandoval, supra, 87 Cal.App.4th at pp. 1428, 1432.) Foy‘s position is that, after locating Song on June 26, 2013, the People‘s failure to invoke the Uniform Act procedures demonstrates a lack of due diligence. The People, on the other hand, maintain the Sixth Amendment was not violated because the prosecutor engaged in reasonable efforts to procure Song‘s attendance at trial.
“A witness who is absent from a trial is not ‘unavailable’ in the constitutional sense unless the prosecution has made a ‘good faith effort’ to obtain the witness‘s presence at the trial. ([Barber], supra, 390 U.S. at pp. 724–725 ....) The United States Supreme Court has described the good faith requirement this way: ‘The law does not require the doing of a futile act. Thus, if no possibility of procuring the witness exists (as, for example, the witness’ [s] intervening death), “good faith” demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. “The lengths to which the prosecution must go to produce a witness . . . is a question of reasonableness.” [Citation.] The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness.’ ” (Herrera, supra, 49 Cal.4th at p. 622, italics omitted.)
“Our Evidence Code features a similar requirement for establishing a witness‘s unavailability. Under [Evidence Code] section 240, subdivision (a)(5) . . . , a witness is unavailable when he or she is ‘[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court‘s process.’ . . . The term ‘[r]easonable diligence, often called “due diligence” in case law, ” ‘connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.’ “’ [Citation.] Considerations relevant to the due diligence inquiry ‘include the timeliness of the search, the importance of the proffered testimony, and whether leads of the witness‘s possible location
Because the child‘s testimony by closed-circuit television was necessary to further a compelling state interest and maintained the other elements of confrontation—oath, cross-examination, and observation of the witness‘s demeanor—it did not violate the confrontation clause. (Id. at pp. 851–852, 857.)
In People v. Masters, supra, 134 Cal.App.3d 509, the prosecution attempted to obtain the presence of a victim who was the sole witness to one count of robbery. The witness had moved to Arkansas before trial, and declined to return to California because she had started a new job. (Id. at pp. 520–522Masters, at pp. 526–528.)
Likewise, in People v. Blackwood, supra, 138 Cal.App.3d 939, Division Four of this court concluded the prosecution did not establish reasonable diligence when it made no effort to use the Uniform Act to compel the attendance of an out-of-state witness located eight days before trial. The prosecution could not reasonably justify its failure to act based on its belief that the states were unlikely to issue a timely subpoena or would deny the request outright because of undue hardship to the witness. (Blackwood, at pp. 946–947.) The court concluded: “Although the prosecution tracked down its missing witness and offered to pay his expenses in returning to California to testify it failed to make any attempt to use the [Uniform Act] to obtain a subpoena for compelling his return. Where the prosecution knows of the witness‘s location and procedures exist to bring the witness to court, [Evidence Code] section 240, subdivision (a)(5) requires those procedures be employed. Since the prosecution did not do so it was error for the trial court to permit the reading of [the witness‘s] prior testimony at appellant‘s trial, and that error was of constitutional dimension.” (Id. at p. 947, italics added.)
Here, the trial court did not reach the issue of good faith/due diligence. Nonetheless, we have reviewed the record and conclude the People did not carry their burden. The People argue their efforts to locate Song were reasonable in light of Foy‘s stipulation at the original trial. On the other hand, the People concede it was known, no later than March 2013, that Foy intended to challenge admission of Song‘s conditional examination testimony at his second trial. We will assume that the prosecution made reasonable efforts to locate Song. But once they located her, as in People v. Masters and People v. Blackwood, the People did not demonstrate good faith efforts to procure Song‘s attendance at trial.
Just as in People v. Masters, the subpoena Eleopoulos sent to Song in Connecticut had no legal effect. When Eleopoulos located Song, on June 26,
The People do not persuasively explain why it was reasonable to forgo such measures after “Song refused to come voluntarily.” The People argue: “[T]he result of the Uniform Act was neither certain nor automatic. There was no way of knowing just how long the procedure would take to run its course, nor whether it would be successful given Song‘s insistence that she was unable to come out because of school and work.” We cannot accept the People‘s assumption there was insufficient opportunity to make use of the Uniform Act when it located Song a week before trial.12 (See People v. Blackwood, supra, 138 Cal.App.3d at p. 947 [“[o]nly if it in fact becomes impossible to secure the process, has the prosecution sustained its burden” (italics omitted)].) Nor could the prosecutor simply assume that Song‘s vague work and school obligations would demonstrate undue hardship. (See Barber, supra, 390 U.S. at p. 724 [” ‘the possibility of a refusal is not the equivalent of asking and receiving a rebuff’ “]; Blackwood, at p. 947 [“[t]he prosecution‘s duty was to invoke the [Uniform Act], not to decide whether such action would be fruitful“]). The People did not meet their burden of showing due diligence. The trial court‘s admission of Song‘s conditional examination testimony in these circumstances violated Foy‘s Sixth Amendment confrontation rights.13
Reversal is required unless the record shows beyond a reasonable doubt that Foy was not prejudiced. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Rutterschmidt (2012) 55 Cal.4th 650, 661; People v. Mendieta (1986) 185 Cal.App.3d 1032, 1039.) Chapman “requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Chapman, at p. 24.) ” ‘To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything
To determine whether a confrontation clause violation is harmless beyond a reasonable doubt, courts consider “the importance of the witness’ [s] testimony in the prosecution‘s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution‘s case.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.) The People have not shown that the erroneous admission of Song‘s conditional examination testimony was harmless beyond a reasonable doubt.
Song was the victim of the robbery alleged in count one, but her testimony on the circumstances of the robbery was cumulative of the live witness testimony. However, identity was the key disputed issue at trial. No witness identification testimony linked Foy to the Jack in the Box robbery. Song‘s conditional examination testimony was critical to the prosecution‘s identity case because Song‘s identification of the content of the flash drive served as the strongest link between Foy and the Jack in the Box robbery. Greenberg testified on cross-examination that the flash drive belonged to Xu, but Xu herself did not testify.
Without Song‘s testimony, the other evidence against Foy may have been sufficient to support the verdict. But contrary to the People‘s argument, the additional incriminating evidence—Greenberg‘s testimony regarding the flash drive, Foy‘s proximity to Rackley and the Mirage at 603 Grant Street, the presence of Foy‘s dismantled phone in Rackley‘s car, Foy‘s flight, Foy‘s height, the cash found in Foy‘s pockets, and the phone records—was not overwhelming. Although Foy‘s credibility was legitimately subject to challenge, he presented an uncorroborated alibi and some explanation for the incriminating evidence against him.
Nor can we agree with the People that there was no harm in admitting Song‘s conditional examination testimony because “[t]he examination was videotaped, which allowed the jury to view Song and judge [her credibility] by her demeanor upon the stand and the manner in which she testified.” Taken to its logical conclusion, the People‘s argument suggests admission of videotaped deposition testimony from a witness who is not unavailable could never constitute prejudicial error. (See Brumley v. Wingard, supra, 269 F.3d at
We agree with Foy that the jury deadlock in the first trial impacts our prejudice analysis. The strength of Foy‘s argument is lessened by the fact Song‘s conditional examination testimony was also admitted at the first trial. (See People v. Avila (2005) 131 Cal.App.4th 163, 171.) It is not our role to speculate on the reason for the deadlock, but the divergent verdicts suggest a close case. On this record, we cannot conclude that the trial court‘s error was harmless beyond a reasonable doubt.
The judgment is reversed.
III. DISPOSITION
Jones, P. J., and Simons, J., concurred.