Filed 4/5/18 P. v. Alnassiry CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

ASHRAF ABDUELAH ALNASSIRY,

Defendant and Appellant.
C080827

(Super. Ct. No. 13F04925)




A jury found defendant Ashraf Abduelah Alnassiry guilty of interfering with custodial rights. On appeal, defendant contends the trial court abused its discretion in refusing to allow him to call a witness via a two-way video conferencing system. The witness lived in Yemen and could not obtain a visa to attend trial. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2013 mother decided to take a vacation with her 11-year-old daughter. Defendant, her ex-husband, is the father.
The mother planned to visit her sister in the United Arab Emirates for two weeks, followed by a two-week visit with her parents in Yemen (leaving July 5, returning August 9). She discussed her plans with defendant, and he sounded happy for them. She asked him to sign a letter indicating he had notice of their trip (as required by their divorce settlement). Defendant eventually gave her the letter.
They flew out on July 5, and the first two weeks in the United Arab Emirates went fine. The mother and daughter then flew to Yemen and stayed with the mother’s parents in Sana’a. Her parents lived in a gated house.
On July 29, defendant’s brother called asking to visit with the daughter. He came by that day to visit for a couple of minutes and then left.
Two days later, he called again and said he wanted to see the daughter again. The mother asked if he could come the next day. The brother said he needed to come right away because he had a gift for the daughter.
That night, defendant showed up unannounced at the house gate. The daughter went out to meet him. The mother, not expecting to see defendant, went back inside to get her cover. Inside the house, she got a call from defendant. When she said he had not told her he was coming, he said he did not need to tell her, adding, “You are in my country now, bitch.” He then told her he was taking her daughter to his home city, Rada’a, a two-hour drive away. He said he wanted to teach her a lesson on how to act. This was payback for the times she gave him attitude or would not let him do things or listen to him. Defendant then hung up. When the mother called back, he did not answer.
Outside the house, defendant told the daughter to get in the car. She heard defendant yelling at her mother in an angry voice and sensed something was wrong.
When the daughter tried to get out of the car, defendant yelled at her. Defendant’s brother (also in the car) told defendant to stop and not do this, and defendant’s current wife (in the car as well) yelled at defendant. When they drove away, the daughter had only the clothes she was wearing.
The mother was eventually able to talk to defendant’s brother who said he was sorry for what was going on. He told her to remain calm and everything would be okay. He would bring back her daughter as soon as things calmed down.
Ten minutes later, the brother called back to arrange to get some of the daughter’s personal belongings. He said the daughter would come back the next day, adding that right now defendant is angry.
The mother put together overnight pajamas, toiletries, and clothes for the next day. The brother came by to pick them up. He reassured her, her daughter was coming back.
The next day, the mother finally got in touch with the brother by midday (she had to call him from a phone number the brother was not familiar with). The brother said, “Yeah, I told you I was going to bring her. I’m trying to figure it out.” He then hung up.
The next day, defendant called the mother and told her to stop calling his family. He said there was nothing they could do for her, adding his brother listens to him, not her. He said she would not see her daughter. It was for her poor attitude over the years, for what happened in the divorce, and for the custody arrangements. He said he would do whatever it takes to see her cry blood.
After two days of trying unsuccessfully to get defendant to return her daughter, the mother called the United States Embassy. An embassy staffer told her he would contact defendant but there was little he could do. The mother also contacted the Sacramento County Sheriff’s Department. The Yemeni police had said it was a family matter, and the family should figure it out. Defendant had told her she would not have rights and people would not listen to her in Yemen.
The mother continued to call defendant, and he would answer intermittently. She began recording their conversations. Defendant eventually offered to let her see her daughter on the holiday of Eid, on the condition the mother meet with him first, alone. Such a meeting is prohibited by their culture, and the mother refused. Defendant then demanded the daughter’s passport to see her.
The embassy staffer suggested canceling the passport before giving it to defendant. When the mother told defendant he could have the passport, he said he wanted an e-mail from her saying they had an agreed arrangement, and he had not taken the daughter without permission (he had heard she had reported him to the FBI). He also said she would not see her daughter again; he wanted her to be raised in Yemen. He added, if the mother tried anything funny, she would see her daughter in white, be it a wedding dress or a kafan (a burial garb).
The mother contacted the embassy and the Sacramento County Sheriff’s Department to let them know what she would be giving defendant. Defendant then demanded the e-mail be notarized by the embassy.
The mother prepared a letter with the embassy staffer, who notarized it. The letter said she was on summer vacation with her daughter, and defendant had taken the daughter for his annual two-week summer vacation visit. The letter was notarized on August 11 (the mother and daughter’s flight home had been for August 9).
The mother called defendant, told him she had everything he asked for, and asked to see her daughter. They planned for him to drop her off at the mother’s parents’ house; her 18-year-old nephew would exchange the letter and passport.
After two failed exchanges, on the evening of August 12, defendant took the daughter to the mother’s parents’ house, along with his father-in-law and some other men. The mother was told the daughter would only be spending the night; they would take her back the next day so she could live at Rada’a with defendant’s family.
That night, the mother called the embassy, and an emergency passport for the daughter was prepared. She booked tickets on a new flight, and at 4:00 a.m. the morning of August 13 they flew out of Yemen.
Defendant was arrested at the airport on his return to the United States.
At trial, defendant testified there had been an agreement that he would have two weeks’ vacation with his daughter in Yemen. He had spoken to the mother about going to Yemen, and they agreed he would see them in Yemen. The mother had suggested he come at the end of July.
In Yemen, the mother contacted defendant’s brother and said to come see the daughter. When the brother picked up the daughter, defendant spoke to the mother by phone because the mother did not want her father to see defendant (defendant had a bad relationship with the mother’s father). The mother agreed that defendant could take her daughter and bring her back on August 14.
Defendant returned the daughter on August 12, after hearing the mother had reported him to the authorities. He denied demanding the daughter’s passport but admitted asking for the letter after discovering he had been reported.
Defendant’s uncle testified that a week before the mother and daughter left for Yemen, defendant and the daughter were at his home. The daughter told him defendant would be joining them in Yemen, and she would stay with him.
Defendant’s current wife testified that in Yemen the mother had called defendant’s brother to say the daughter was ready to go with him. Defendant’s wife had talked with the mother five or six times about going to Yemen. The mother told defendant’s current wife the daughter would visit them in Yemen. The daughter was excited that her father was going to Yemen.
Defendant’s wife also testified the daughter was not crying when they picked her up, although she testified the daughter had gotten in the car without her personal belongings.
Before trial, defense counsel informed the court he wished to call defendant’s brother to testify. The brother would testify to the agreement to have the daughter stay with defendant in Yemen and that when they exchanged the daughter, it was nonviolent. But because the brother lived in Yemen where visa services had been suspended, counsel proposed having the brother testify via two-way video. The prosecution refused to stipulate to it.
The trial court noted that through stipulation, it had in the past allowed two-way video testimony. But it added, there are evidentiary issues where no stipulation exists. “Frankly, we don’t even know who is the person on the other side, nor are they within the jurisdiction of this Court. [¶] . . . [¶] I have no ability to enforce any order with respect to that person, including a contempt order. And have they even committed perjury, in the event that they assume an oath that is taken thousands of miles away[?]” The court also raised confrontation issues: “one would question the ability of [the prosecutor] to even cross-examine in a meaningful way when the person is not present before me and subjected to a lawful oath.” “Obviously, if the People wanted to call a witness from a foreign country, I suspect that you might have an issue with that.”
The court, however, invited defense counsel to locate supporting authority, offering, “I am prepared to do what I can,” but noting, “I am not sure that . . . we have considered all of the potential legal hurdles to do telephonic trials.” It added, “I just see a bunch of logistical hurdles that are unfortunate but may be insurmountable.”
A jury found defendant guilty of interfering with custodial rights. The court ordered five years’ formal probation and ordered defendant to serve 365 days in county jail.
DISCUSSION
On appeal, defendant contends the trial court abused its discretion and violated his constitutional rights in refusing to allow defendant’s brother to testify via two-way video. He argues his brother was a material witness who would testify to the agreement to have the daughter with defendant in Yemen and who was present when defendant allegedly took the daughter without the mother’s permission. He notes that under Penal Code section 1340, a court may allow a witness to testify via two-way video, if the court determines the witness is too sick or infirm to participate in person. He adds, an oath could have been administered over the video and he questions any need to hold his brother in contempt. We disagree.
The trial court’s refusal to permit the brother to testify via two-way video was neither irrational nor arbitrary. With few exceptions, witnesses may only be heard “in the presence and subject to the examination of all the parties to the action. . . .” (Evid. Code, § 711.) Here the circumstances that give rise to those exceptions were not present. And what circumstances were present did not indicate an abuse of discretion. There was no stipulation to the video testimony, the brother was far outside the trial court’s jurisdiction, and a multitude of valid concerns were raised by the trial court. Defendant’s counsel could offer no authority to permit the testimony via video. Thus, the refusal to allow video testimony was neither irrational nor arbitrary. That conclusion is bolstered by the fact that the brother’s proffered testimony was cumulative of testimony provided by defendant, defendant’s current wife, and defendant’s uncle. Accordingly, the trial court acted within its discretion in refusing to allow the brother to testify via two-way video.
DISPOSITION
The judgment is affirmed.



/s/
Robie, J.



We concur:



/s/
Raye, P. J.



/s/
Duarte, J.