Filed 4/18/17 P. v. Hurtarte CA4/3




NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

RAMIRO HURTARTE,

Defendant and Appellant.


G051874

(Super. Ct. No. 13NF0502)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed as modified with directions.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Ramiro Hurtarte of driving under the influence of alcohol (DUI; Veh. Code, § 23152, subd. (a)), and driving with a blood-alcohol content (BAC) of 0.08 percent or higher (Veh. Code, § 23152, subd. (b)). Hurtarte admitted he previously suffered a felony DUI conviction within 10 years of the current offenses (Veh. Code, § 23550.5, subd.(a)). Hurtarte contends the trial court erred by excluding the preliminary hearing testimony of Robert Espalin, who testified at the prior hearing that he, not Hurtarte, drove the vehicle on the night of the incident. Hurtarte asserts the court erred in determining the defense failed to exercise reasonable diligence in securing Espalin’s attendance at trial. Alternatively, he contends his trial attorney rendered ineffective assistance by failing to diligently pursue Espalin’s attendance at trial. We do not find these contentions persuasive. Consequently, we modify the judgment to correct a sentencing error, but otherwise affirm the judgment as modified.
I
FACTUAL AND PROCEDURAL BACKGROUND
On December 21, 2012, at approximately 3:40 a.m., Placentia Police Officer Chris Stuber was driving southbound on the 57 freeway south of Imperial Highway when he saw California Highway Patrol (CHP) officers performing a traffic break. The CHP officers did not require his assistance so he continued driving. Stuber saw a car stopped on the right shoulder and a person standing next to the driver’s side door. As he pulled up behind the car, the person walked away from the vehicle. Stuber asked if he needed help. The person hesitated, and then jumped over a wall on the west side of the freeway and ran down an embankment and under the freeway onto northbound Associated Road. Stuber reported his observations and asked other officers in the area to search for the person, whom he described as an adult male in his early 20’s with a medium build. When CHP officers arrived, Stuber drove off to join the search.
Stuber soon received information another Placentia officer had detained Hurtarte near a daycare building on Associated Road. Stuber spoke with Hurtarte, who initially claimed he was just out for a walk and denied being on the freeway. Although Stuber could not identify the person he spotted near the car, he told Hurtarte he had seen him on the freeway. Hurtarte admitted he had seen Stuber, but fled because he did not know Stuber was a police officer, explaining someone else had been driving, and this person ran and jumped the wall with him. Stuber told him that was not true, and asserted that Hurtarte was the only person on the freeway. Hurtarte then claimed he had loaned his car to a friend he could not name, who telephoned he had been involved in a car accident. Other friends drove Hurtarte to his car. When Stuber arrived the friend who had been driving Hurtarte’s car fled, and the friends who brought Hurtarte to his car also fled. Stuber denied there had been another vehicle as he arrived at Hurtarte’s car.
CHP Officer Darryl Hansen and his partner Officer Rachelle Fouts were driving southbound on the 57 freeway when they spotted a white BMW, registered to Hurtarte, stopped with its hazard lights activated and obstructing the number four lane (slow lane) adjacent to a four-foot concrete K-Rail construction barrier. The officers continued driving, exited the freeway and circled back around to execute a safety traffic break of southbound traffic north of the BMW. After performing the traffic break, they drove up to the BMW and saw a male standing near the trunk. When the person saw the officers, he jumped over the barrier and fled down the embankment onto Associated Road.
The CHP officers lit flares to block the lane. The driver’s side door of the BMW was unlocked, but the other doors were locked. The officers found the BMW’s keys on the other side of the concrete barrier near where the person had jumped the barrier. The officers inventoried the BMW before having it towed. The driver’s seat was positioned for a person of Hurtarte’s stature. Various items covered the passenger seats. A large plastic car part covered most of the back seat, and a dartboard rested on the floorboard against the rear driver’s side seat. The front passenger seat was pushed all the way back and covered with various items. The officers found Hurtarte’s cell phone in the center divider cup holder with eight percent battery life remaining, but it immediately powered down. The CHP officers later joined the Placentia officers who had detained Hurtarte. He appeared similar to the person who fled the scene and jumped over the wall.
Fouts spoke to Hurtarte. His speech was slurred, his eyes were red and watery, and she smelled alcohol on his breath and person. Hurtarte told her he drove two friends from high school, Robert Espalin and Robert Arredondo, in his BMW to a restaurant and bar in Covina. When they decided to leave, Hurtarte told the others he did not “feel good to drive” and was “not chancing it.” Espalin offered to drive Hurtarte home even though Espalin also had been drinking heavily. Robert Arredondo sat in the front passenger seat and Hurtarte sat behind him. After the car broke down, everyone got out. One of his friends called someone for a ride, but Hurtarte decided to stay with his car. His friends left about 15 minutes before the officers arrived. Hurtarte claimed he left his car and went down the embankment because his cell phone had died, he could not find the cell phone in his car, and he wanted to call someone from a safer location. He located a convenience store and called AAA using a deliveryman’s cell phone. Hurtarte gave Fouts phone numbers for Espalin and Arredondo, but when she called the numbers neither appeared to belong to Hurtarte’s friends.
Arredondo testified he and Hurtarte had been friends since junior high and remained so until he moved from Alhambra to West Covina in the 11th grade. He rarely saw Hurtarte thereafter. On December 21, Arredondo ran into Espalin, with whom he had not kept in touch, at a store in Rosemead. Espalin invited him to join other high school friends who were getting together at his grandparents’ Rosemead home. Only Hurtarte showed up, and the trio did some catching up. Hurtarte then drove them to a nightclub around 10:00 p.m. Arrendondo testified the BMW was not “too dirty,” and he did not recall seeing a dartboard or large car parts in the vehicle. At the club, Hurtarte consumed beer, but Arredondo did not know how much he had to drink. They stayed until about 1:40 a.m. Hurtarte gave Espalin the keys, and he drove the men to a gas station. Espalin, about three inches taller than Hurtarte, had to adjust the seat.
The men conversed about driving Hurtarte home to Orange County. Arredondo planned to sleep at Hurtarte’s and have Hurtarte drive him back to Alhambra the next morning. Espalin remained the driver as they left the gas station. The car began shaking on Interstate 10, and started to shut down while traveling on the 57 Freeway. Espalin pulled over on the shoulder of the road.
Espalin had been arguing on the phone with his wife. She later pulled up behind the BMW in her SUV about 10 to 15 minutes after they stalled, and Arredondo got in. Espalin spoke with Hurtarte, then got into the SUV. Espalin’s wife drove Arredondo home. Hurtarte remained behind, leaning against his car. Arredondo never checked to see if Hurtarte was all right.
Hurtarte, age 37 at trial, testified he had known Arredondo since seventh grade. They had very little contact after high school, but they had connected three or four times through a mutual friend who lived in Las Vegas. Espalin also had attended the mutual friend’s get-togethers. Hurtarte did not have Arredondo’s current phone number and did not contact the men using social media.
On the night of the incident, Hurtarte phoned Espalin after watching his daughter’s school Christmas recital in West Covina. Arredondo was at Espalin’s grandfather’s home in Rosemead when Hurtarte arrived. Hurtarte suggested going to the Covina bar because he had driven past it after the recital. They arrived around 10:00 p.m. and stayed until the bar closed around 1:15 a.m. Hurtarte drank four beers at the bar, and felt too intoxicated to drive.
Espalin volunteered to drive, and Hurtarte suggested the men spend the night at his house. Hurtarte got in the back seat with the dart board, the car part, a collapsible sun visor and other items. The car sputtered on three occasions and stalled on the freeway.
Espalin parked on the shoulder partially obstructing the slow lane just past Imperial Highway. The three men got out of the car. Espalin was on his phone, and Hurtarte and Arredondo looked at the engine. Hurtarte scrolled through the contacts on his phone deciding whether to call the American Automobile Association (AAA) or his father. His phone had three percent charge remaining at this point. His call log had Espalin’s phone number, but not Arredondo’s, and he had not memorized either number.
About 15 minutes after they stalled, Espalin’s wife arrived. Hurtarte, who lived about 10 minutes away, decided to stay with his car because he felt it was a safety hazard and thought he would get a ride with AAA. After the other men departed, he tried to call AAA, but his phone had died. He decided to leave his car on the freeway and find a phone to call for help. He looked everywhere in the car, moving the seats back, but could not find the car keys to lock the doors. He found a hole in the fence and walked down the steep embankment to the sidewalk of Associated Road toward a convenience store. He asked a deliveryman at the store to use his phone and called AAA.
A Placentia K-9 officer arrived and asked Hurtarte for identification. Hurtarte told the officer he had been to the store and was returning to his car that had stalled on the freeway. Stuber arrived and accused him of running from the scene. Hurtarte denied running, but admitted it was his vehicle. He denied telling Stuber he was just out for a walk. He did not provide Stuber with his friends’ names, but did give them to Fouts. He told Fouts he could not remember their phone numbers, but they were stored in his phone. She pressed him, and he provided a number for Espalin’s grandfather he remembered from high school, but he was off by a digit or two. He “straight out guessed” the number for Arredondo, but claimed he told Fouts it was a guess. Fouts tried calling and then told him the numbers were not valid.
Following trial in July and August 2014, the jury convicted Hurtarte as noted above. In September 2014, the trial court imposed a two-year midterm sentence for driving under the influence of alcohol (count 1), and stayed (§ 654) sentencing for driving with a BAC of 0.08 percent or higher (count 2). The court also imposed various fines and assessments.
II
DISCUSSION
A. The Trial Court Did Not Err in Excluding Former Testimony Because Defense Did Not Exercise Reasonable Diligence in Procuring Witness for Trial
Hurtarte contends the trial court erred in excluding Espalin’s preliminary hearing testimony when it found the defense failed to exercise reasonable diligence to procure Espalin’s attendance at trial. (Evid. Code, §§ 240, subd. (a)(5), 1291.) Hurtarte’s claim lacks merit.
The defense brought a pretrial motion to introduce Espalin’s August 2013 preliminary hearing testimony. Kevin Ruffner, a licensed private investigator employed by defense counsel, testified he attempted to telephone Espalin several times in mid to late March 2014, using the number Hurtarte gave him for Espalin. Ruffner was unsure whether the number was disconnected or the call went to voicemail. After Hurtarte provided a second number, Ruffner phoned and left a voicemail message, but received no return call. Hurtarte told Ruffner he also was having trouble contacting Espalin.
In late April or early May, Ruffner was asked to serve a trial subpoena on Espalin at an address in Pomona. Ruffner arrived at the address on May 8 around 9:00 or 10:00 p.m. Ruffner recalled the location was “hard to find” and “odd,” and appeared to be a “convalescent home or hospital” with a perimeter security fence. Approaching a gate, Ruffner spoke with a woman entering the compound in her car. The woman identified herself as Espalin’s wife, but explained they had been separated for several weeks and she did not know where he was. She suggested he might be in Rosemead and hurriedly gave Ruffner two addresses.
Ruffner used Google to search for the addresses Espalin’s wife gave him, but they referenced a bike path. Hurtarte told Ruffner Espalin’s grandfather lived in the Rosemead area, but Hurtarte did not know his address and was unfamiliar with the location. Ruffner did not “look up” or search anyone with the last name of Espalin living in Rosemead.
At the preliminary hearing, Espalin gave to the defense his birth date and two additional phone numbers where he could be reached, one of which apparently belonged to Espalin’s grandfather. Ruffner did not try to reach Espalin by calling these numbers. At the preliminary hearing, Espalin testified he worked for a construction company, but Ruffner did not know the company’s name. Ruffner searched the Web site of the Contractors State License Board, but did not find Espalin’s current address. Ruffner thought the law firm he worked for could access DMV records, but he never performed a DMV search because he lacked the training.
The trial court found the defense failed to exercise reasonable diligence to procure Espalin’s attendance, noting the defense did not ask the preliminary hearing judge to order Espalin back for trial, did not attempt to phone Espalin until March 2014, and failed to follow up after the phone calls. The court noted Ruffner made only one attempt to visit Espalin’s residence, Ruffner did not visit the locations Espalin’s wife gave him, and he did not attempt a DMV search.
Evidence Code section 1291, subdivision (a), provides, “Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶] . . . [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.” A witness is unavailable if 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.” (Evid. Code, § 240, subd. (a)(5).) “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 were competently explored.’” (People v. Herrera (2010) 49 Cal.4th 613, 622; People v. Linder (1971) 5 Cal.3d 342, 346-347.) The proponent of the evidence has the burden of establishing unavailability. (People v. Roybal (1999) 19 Cal.4th 481, 504; People v. Cummings (1993) 4 Cal.4th 1233, 1296.) When, as here, the facts are undisputed, we review the trial court’s due diligence determination de novo. (People v. Cromer (2001) 24 Cal.4th 889, 900-901.)
Espalin’s failure to respond to phone calls from Ruffner and Hurtarte in mid to late March 2014 put the defense on notice of potential problems in procuring his testimony. Ruffner attempted to serve a subpoena in early May, but apparently made few, if any, efforts to locate Espalin after the trial was continued to late July. Although Espalin’s wife said the couple had separated recently, Ruffner did not contact her again to obtain more information. The investigator never attempted to visit the locations for the Rosemead addresses supplied by Espalin’s wife, and did not search for persons surnamed Espalin living in Rosemead. The defense failed to explore leads it had concerning telephone numbers for Espalin and his grandfather that Espalin had disclosed at the preliminary hearing. The defense made no effort to locate Espalin through DMV or other public sources beyond the contractor licensing board, nor did the search extend to other logical sources, such as social media. As the court noted, Hurtarte and Espalin were childhood friends so it is reasonably probable Hurtarte possessed personal information to help track down Espalin. Indeed, Espalin provided his birth date at the preliminary hearing. The defense’s failure to pursue reasonable leads demonstrates a lack of due diligence in its efforts to locate Espalin.
Hurtarte notes the trial date was continued or trailed on eight occasions beginning in March 2014, and “failure to keep in constant contact with the witness while the case was continued does not mean the defense effort lacked reasonable diligence.” Hurtarte relies on the observation in People v. Forgason (1979) 99 Cal.App.3d 356 (Forgason), that trial dates in criminal cases are often tentative, and it would be “unreasonable, to require a criminally accused, under pain of a ‘lack of due diligence’ finding, to compel his witnesses by subpoena, to attend court, at times he knows the trial will probably not commence, in order that they might be again subpoenaed or directed by the court to return on yet another questionable trial date setting.” (Id. at p. 363.)
But the defense efforts in Forgason, unlike here, were substantial. There the defense promptly attempted to locate the witnesses after reasonable assurance of a firm trial date. The defendant and his lawyer exhaustively searched places, bars and restaurants, where the witnesses were likely to frequent. The appellate court noted the defense lawyer’s determination concerning places to search “seem[ed] not unreasonable. He might reasonably believe that the . . . witnesses had had little contact with utility companies and credit agencies. Requests for information from welfare agencies would be summarily rejected [citation], and the same is probably true of jails and penal institutions in response to information requests of private persons. . . . [U]nder the circumstances here, a reasonable person might more readily conclude that inquiry in places the witnesses were known to habituate would be more fruitful than motels, hotels and hospitals generally, where again the requested information might, or might not, be forthcoming.” (Forgason , supra, 99 Cal.App.3d at p. 364.)
Hurtarte also relies on People v. Smith (1971) 22 Cal.App.3d 25. In Smith, the victim, who owned the stolen property, testified at the preliminary hearing. The defendant pleaded not guilty and the case was set for trial a month later. A week before trial, the defendant appeared with counsel to plead guilty, but the trial court rejected the plea, and a subpoena issued for the victim. The defendant complained the prosecution failed to exercise reasonable diligence by waiting until a week before trial before issuing a subpoena for the victim. The appellate court noted the victim had voluntarily appeared for the preliminary hearing and at proceedings for the defendant’s accomplice, and concluded “a more timely attempt to subpoena [the victim] for defendant’s trial would have been of no avail. [The victim] had assured [a police officer] that he would be available for defendant’s trial. The day prior to trial, teletypes had been sent to San Francisco to ascertain whether service had been effected. Efforts were made to locate [the victim] at his Red Bluff address and three telephone calls were made to San Francisco.” (Id. at p. 32.)
Unlike the witness in Smith, Espalin had not assured anyone he would be available for Hurtarte’s trial. As noted, the defense knew it had problems locating Espalin in March 2014, but its feeble efforts between then and late July 2014 did not constitute reasonable diligence to procure his attendance. Hurtarte notes defense efforts to find Espalin began well before trial, and asserts “reasonable diligence [has been] found in cases where the search began seven, six, four, and one day before trial.” Here, the issue is not when the defense began its efforts to locate Espalin, but what it did in trying to locate and procure his attendance.
Finally, Hurtarte complains Ruffner “was not trained to access these records [], and it is highly speculative that Mr. Espalin updated his address with DMV after leaving his wife.” Ruffner did not dispute he had access to these records, and presumably the defense could have secured the necessary training for him or hired someone else to conduct the search. Whether the records might have led the defense to Espalin is unknown because the defense never looked. The trial court did not err in excluding Espalin’s preliminary hearing testimony.
B. Record Does Not Establish Trial Counsel Acted Ineffectively or a Reasonable Probability the Result Would Have Been More Favorable to Hurtarte
Hurtarte alternatively contends trial counsel’s failure to conduct a more extensive search constituted ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel, a defendant must show counsel’s representation failed to meet an objective standard of professional reasonableness, which prejudiced the defendant. In other words, absent counsel’s deficiencies, there is a reasonable probability the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 689, 691-692 [reasonable probability means sufficient to undermine confidence in the outcome; scrutiny of counsel’s performance is highly deferential without distorting effects of hindsight and court indulges strong presumption counsel’s conduct falls within the wide range of reasonable professional assistance].) Where the record on appeal does not contain an explanation for the alleged errors, the court must reject the claim unless there could be “‘“no satisfactory explanation”’” for counsel’s conduct. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; see People v. Jones (2003) 29 Cal.4th 1229, 1254 [strong presumption counsel’s conduct falls within the wide range of reasonable professional assistance]; People v. Riel (2000) 22 Cal.4th 1153, 1185.)
Hurtarte asserts “[u]nder Strickland, failing to take the necessary steps to ensure the admission of powerful prior testimony falls below the professional standard of reasonableness. [¶] Importantly, there is no indication that the scope of the search was a trial tactic. The defense investigator called Mr. Espalin, went to his address, looked for his business address, and contacted Mr. Hurtarte for information on reaching him. The defense also wanted to introduce Mr. Espalin’s prior testimony. [¶] Finally, . . . the exclusion of the prior testimony was prejudicial to Mr. Hurtarte’s defense, because the jury did not get to hear the most credible defense testimony about who was the driver of the vehicle.”
The record does not contain an explanation for counsel’s failure to conduct a more rigorous search for Espalin. Under these circumstances, we must defer to counsel’s assessment of how best to prepare for trial unless there could be no conceivable reason for counsel’s conduct. Here, it is possible counsel heard from Espalin and learned he was lying or concluded Espalin was not credible, and conclude it was more likely his testimony would harm the defense rather than exonerate Hurtarte. It also is conceivable defense counsel expended little effort in locating Espalin because his preliminary hearing testimony was not credible and counsel therefore believed the risk outweighed the benefits of having him personally testify at trial. Indeed, the prosecutor cited Espalin’s demeanor at the preliminary hearing, noting he was “one of the least credible witnesses [he had] seen. He was extremely nervous. Licking his lips. His face was red. He was sweating, he was rambling. He didn’t know any specific details about the situation . . . .” The magistrate also noted Espalin’s “testimony [was not] all that credible.” Consequently, counsel hoped his meager efforts to locate Espalin would convince the trial court to find reasonable diligence and allow counsel to use a cold preliminary hearing transcript of Espalin’s testimony rather than expose Espalin to the jury’s scrutiny in court. Counsel conceivably could conclude the risk the court would find no reasonable diligence in locating Espalin and deny admission of his preliminary hearing transcript was preferable to Espalin’s live testimony.
But assuming no satisfactory explanation exists for counsel’s failure to conduct a diligent search for Espalin, it is not reasonably probable Hurtarte would have obtained a more favorable outcome absent counsel’s error. Hurtarte asserts this was not “an open and shut case, as the jury spent parts of two days deliberating [] and . . . asked for read back of testimony [].” He claims Espalin’s prior testimony was not cumulative to the testimony presented at trial because it was “qualitatively better evidence.” He asserts Espalin exposed himself to criminal prosecution by saying he was the driver, and, unlike Hurtarte and Arredondo, he was not impeached with a prior conviction. He also argues Espalin’s testimony Hurtarte “seemed [to be] looking at” him when he tossed the keys to Hurtarte as Espalin’s wife showed up, corroborated Hurtarte’s testimony he looked everywhere in the car for his keys and moved the seats back, which might explain “why [] the seats [were] littered with items as if there had not been passengers[.]”
We are not persuaded. Hurtarte and Arredondo testified at trial Hurtarte was not the driver, and therefore Espalin’s testimony was essentially cumulative. Espalin faced little prospect of prosecution for DUI by stating he was the driver because there was no evidence of his BAC or impairment at the time of driving. Espalin’s testimony Hurtarte “seemed [to be] looking at” him when he tossed him the keys hardly suggested Hurtarte did not see the keys, and did not explain how the keys ended up on the other side of the K-rail. As recounted above, strong evidence demonstrated Hurtarte was the driver. In brief, Hurtarte fled when the police officers arrived on the scene, the condition of the car when the CHP officers inspected it suggested Hurtarte had been the BMW’s only occupant, Hurtarte gave several conflicting accounts of the incident to Stuber, and he gave Fouts incorrect phone numbers for Arredondo and Espalin. It is not reasonably probable the result would have been more favorable to Hurtarte had the court admitted Espalin’s preliminary hearing testimony.
C. The Trial Court Imposed an Unauthorized Sentence by Staying Sentence (§ 654) for Driving with a BAC of 0.08 Percent or Higher with a Prior (Count 2) Without Imposing a Term
We asked for supplemental briefing addressing whether the trial court imposed an unauthorized sentence by staying sentence (§ 654) for driving with a BAC of 0.08 percent or higher with a prior (count 2) without imposing a term. (People v. Alford (2010) 180 Cal.App.4th 1463.) The parties agree the court erred, and that this court should modify the judgment to impose and stay a midterm of two years for count 2.


III
DISPOSITION
The judgment is modified (§ 1260) to impose and stay (§ 654) a two-year midterm for count 2 (Veh. Code, §§ 23152, subd. (b), 23550.5, subd. (a)). As modified the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward it to the appropriate correctional authorities.



ARONSON, J.

WE CONCUR:



O’LEARY, P. J.


MOORE, J.