People v. WatsonPeople v. Watson
Opinion
Grеgory Barnes Watson was convicted by a jury of murder and assault with a deadly weapon. The jury also found true various enhancements.
Watson argues, among other things, that the prosecution did not exercise due diligence in trying to obtain the presence of a witness at trial, and therefore the court improperly permitted that witness’s preliminary hearing testimony to be read to the jury. We disagree and affirm the conviction.
Facts
The Prosecution’s Case
Marlen Gonzalez lived with her boyfriend, Jose Salinas, at the Simi Valley home of Hope Rodriguez. They were all home on the afternoon of November 10, 1986, when Watson came tо see Rodriguez.
Salinas testified at the preliminary hearing that Watson and Rodriguez were talking about money, and that Watson wrote something down on a piece of paper. Salinas left the dining room to go to the bathroom when he heard a shot. He turned and saw Watson shooting Rodriguez. Watson then shot Salinas twice, hitting him in the side and the throat. Salinas, despite his injuries, ran to his bedroom, got a revolver, and shot at Watson through a window as Watson ran to a yellow mini truck. Watson drove away and Salinas then called the police.
Later, while in a hospital emergency room, Salinas told police that a man named Greg, whom he had met before, was the assailant. (This was Watson.) The day after the shooting, Gonzalez also identified Watson as the gunman. A piece of paper with words on it written by Watson was found in the Rodriguez living room.
Marc Holmes, Watson’s employer, testified under a grant of limited immunity as follows: Holmes, Rodriguez, Salinas and others attended a meeting at Rodriguez’s home in late October 1986. Sevеral of those attending were later arrested for possession of cocaine. Rodriguez was frightened after this drug arrest, and asked Holmes for his help in leaving the country. Holmes had planned to meet with Rodriguez early in the day of the shooting, but Salinas called him before lunch to postpone the time of the meeting. Sometime after 1 p.m. Rodriguez called Holmes and asked him for help in hiding her automobiles. A little while later, Watson called and told Holmes that he had driven by Rodriguez’s house, and that it was surrounded by police. Holmes said he thought Rodriguez had been arrested for cocaine. Concеrned that they might be vulnerable to arrest, Watson and Holmes met that afternoon and disposed of drug paraphernalia. Holmes provided police with the cleaner’s ticket for the grey sweatshirt worn by the gunman.
Matthew Talbert, an acquaintance of Holmes and Watson, testified that Holmes told him that Watson admitted killing Rodriguez, and that Holmes and Watson disposed of the gun together.
Officer John Samarin of the Simi Valley Police Department was the first police officer at the scene. Samarin testified that he questioned Salinas and Gonzalez separately, and that they both described the assаilant as a white male between twenty and thirty years old, five-foot six to seven inches tall, and slender build. Both Salinas and Gonzalez repeatedly told Samarin that they did not know the identity of the shooter. Gonzalez described him as clean shaven. In fact, Watson is six feet tall and wore a moustache at thе time of the shootings.
Salinas did not tell Officer Samarin that he had a gun and fired back at the assailant. Gonzalez testified that she did not know the name of the gunman and did not remember she had previously met him until she spoke with Salinas on the day after the shootings.
Los Angeles Police Department Detective Ramon Madrid testified that several days before the shooting he took part in a drug raid where nine persons were arrested and ninety-five kilograms of cocaine seized. During the raid the detective found notes with Hope Rodriguez’s telephone number.
Holmes denied telling Talbert that Watson admitted killing Rodriguez or that they disposed of the murder weapon together.
Use of Salinas’s Preliminary Hearing
Testimony at Trial
Salinas did not testify at trial. The prosecution introduced into evidence the transcript of Salinas’s preliminary hearing testimony. The trial court found that the prosecution sustained its burden of showing Salinas’s unavailability by the introduction of the following еvidence: Salinas was personally served with a subpoena to testify at trial, and he said at the time of service that he would appear. Salinas told Sergeant Patricia Hopkins of the Simi Valley Police Department that he was going home to Argentina for Christmas but that he would be back in time for trial. He gave the police the telephone numbers of a relative and a girlfriend in Argentina.
Detective Hopkins called Salinas in Argentina after Christmas to inform him that Watson had been released from jail on bail. Salinas confirmed he would testify, but he expressed fear of Watson.
Two weeks beforе trial, an investigator for the district attorney’s office called Salinas in Argentina. This time, Salinas would not commit himself to
When the trial began, the court issued a bench warrant for Salinas’s arrest. The investigator again spoke to Salinas on the telephone and told him about the arrest warrant and warned him that if he failed to testify he would be subject tо arrest were he to return to the United States. Salinas said he was not going to worry about the warrant, and again refused to testify.
A law clerk with the district attorney’s office spoke with Paul Vaky, an attorney with the Latin American countries team, criminal division, of the International Affairs Office of the United States Justice Department. Vaky informed the district attorney’s office that there is no way to compel Salinas’s return from Argentina because there is no treaty between the United States and Argentina providing for extradition or compulsion of witnesses.
At trial the parties stipulated that Salinas had once married an American citizen and that he was a legal resident of the United States.
Discussion
I.
Both the federal and state constitutions guarantee a criminal defendant the right to confront the witnesses against him. (U.S. Const., 6th Amend.;
The right of confrontation is fundamental
(People
v.
Stritzinger
(1983)
Thus, a prosecutor may offer the prior testimony of a witness against a criminal defendant only if he carries the burden of establishing 1) the unavailability of the witness and 2) the reliability of the testimony. (
Watson argues that the People have not shown reasonable diligence. Because Salinas was a legal resident of the United States, he argues, the People should have obtained a federal subpoena pursuant to
Watson relies on
People
v.
St. Germain
(1982)
The
St. Germain
court explained that although “the subpoena in such a situation issues from the court of the United States rather than the superior court it is nevertheless within the definition of
‘the
court’s process’ contained in Evidence Code
The failure of the prosecution to attempt to secure Salinas’s presence by use of the federal subpoena does not require reversal here. In
St. Germain,
the federal subpoena was the
“sine qua non
completely missing from the proof. . .” for establishing reasonable diligence in attempting to obtain the presence of a permanent “resident of the United States.”
(People
v.
St. Germain, supra,
Here, Salinas was served in California with a valid state subpoena requiring his attendance at trial. The investigator informed him that a subpoena had been issued fоr his arrest and that his failure to testify could subject him to arrest if he returned to the United States at a later date. The victim in St. Germain had not been served with any subpoena requiring him to appear at trial. Once he was in a foreign country, a federal subpoena was necessary to establish reasonable diligence.
In re Terry
(1971)
Our Supreme Court held it was error to permit the children’s preliminary hearing testimony to be read at defendant Terry’s trial because it did “not
In
People
v.
Masters
(1982)
Watson ties the question of diligence to the sanctions that can result from failure to obey the federal subpoеna. These sanctions include the imposition of a fine of up to $100,000 for failure to appear (
The same argument, however, can be made for failure to obey a state subpoena which can result in arrest. There is no such sanction for failure to obey the federal subpoena under discussion here. For some people, the threat of arrest is a more powerful incentive to appear than is the loss of assets. An arrest results in a loss of freedom and can also jeopardize the status of a resident alien.
There may be an even more powerful incentive not to appear despite the threat of either arrest or loss of assets—the threat to one’s safety.
Whether the service of a federal subpoena in this case would have been helpful is speculation at best. The prosecution served Salinas with a state court subpoena under circumstances whеre it had every reason to believe he would be available to testify. The prosecution made additional efforts to
II.-IV. *
The judgment of conviction is affirmed.
Stone (S. J.), P. J., and Abbe, J., concurred.
Appellant’s petition for review by the Supreme Court was denied November 15, 1989.
Notes
See footnote, ante, page 446.