Filed 4/17/17 P. v. Moctezuma CA4/3


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

AMARETTE AIMEE MOCTEZUMA
and JOSEPH DANIEL KRIBELL,

Defendants and Appellants.


G052280

(Super. Ct. No. 14CF2883)

O P I N I O N

Appeal from judgments of the Superior Court of Orange County,
W. Michael Hayes, Judge. Affirmed.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant Amarette Aimee Moctezuma.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant Joseph Daniel Kribell.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lise Jacobson and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.

Appellants Amarette Aimee Moctezuma and Joseph Daniel Kribell were placed on probation for assaulting a homeless man. They contend the trial court erred in granting the prosecution’s request for midtrial continuances to locate an important eyewitness who, at the time of trial, was also homeless. We disagree and affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of August 24, 2014, Moctezuma’s 13-year-old brother Aaron got into an argument with Charles Murphy, a 60-year-old homeless man. The argument occurred near a motorhome Aaron lived in with his mother Yvette and her then boyfriend Ryan Chapman. As Aaron and Murphy were jawing back and forth, appellants – who were dating at the time – pulled up in a car and joined the fray. Kribell and Aaron unleashed a barrage of punches on Murphy. Moctezuma threatened him with a box cutter, and moments later Murphy felt a sharp object cutting into the back of his head.
Fortunately for Murphy, Chapman – who had been sleeping in the motorhome – was awakened by the fracas. He came to Murphy’s aid by pulling him away from his attackers. Then he called 911 and summoned help for Murphy, who was badly beaten. In the wake of the incident, appellants were arrested at Kribell’s parents’ house, and Kribell was found to have a box cutter in his possession.
Appellants were charged with attempted murder, aggravated assault and various enhancements. At trial, Murphy was unable to identify appellants, and the only person who was able to place them at the scene of the crimes was Chapman. He started his testimony on the afternoon of Monday, June 1, 2015, and when court ended that day was in the process of being cross-examined by Moctezuma’s attorney. Before adjourning, the trial judge told the jurors he would see them in the morning at 9:00. However, the judge did not order Chapman to return to court to finish his testimony.
When court resumed the following morning, Chapman was nowhere to be found. Having broken up with Yvette, he was believed to be living in a tent on Civic Center Plaza, near the courthouse in Santa Ana. He had made all five of his previously scheduled court appearances in the case, so when he did not show up to finish his testimony, the prosecutor sent her lead investigator, Thomas Lockwood, out looking for him. In the meantime, she put on her final witness.
After lunch, the prosecutor informed the court Lockwood had been unable to locate Chapman, despite looking for him at the Civic Center Plaza, checking the local jails, hospitals, soup kitchens and veterans centers, and requesting assistance from numerous local agencies. With no more witnesses to call, the prosecutor requested a continuance until the following morning in order to find Chapman. Appellants’ attorneys argued a continuance was unwarranted because “there [were] no reasonable assurances by the People that they [could] actually produce Mr. Chapman.” However, the trial court granted the request, stating, “[Chapman is] homeless. He’s got some issues to deal with. I think he’s an important witness to both sides. He’s made all of the other prior court appearances, and I think the People are entitled to the rest of the day to find him.” In advising the jury the case was being continued until the following morning due to Chapman’s absence, the court admonished the jury not to speculate as to why Chapman did not return to court.
The next morning, Wednesday, June 3, the prosecutor reported Chapman was still missing and moved to continue the trial until the following day. The prosecutor represented that in addition to Lockwood’s search efforts, she herself had been out on the street looking for Chapman. During that time, a police liaison who worked with the homeless informed her that Chapman had a paranoid personality, which could explain why he did not return to court to finish his testimony. In support of her request for a continuance, the prosecutor also informed the court she had contemplated putting Chapman up at a motel during the trial, in order to ensure his attendance in court, but a specialist on homelessness with the Orange Police Department told her Chapman might not do well in closed quarters, so she did not.
Defense counsel were not impressed with the prosecutor’s representations. In opposing the request for another continuance, they reminded the court their clients were in custody. They also expressed skepticism Chapman would be found, since he appeared to have voluntarily absented himself from the proceedings.
Prior to making its ruling, the trial court heard testimony from Investigator Lockwood regarding his efforts to locate Chapman. Lockwood testified that when Chapman did not show up for court the previous day, he spoke with his tent mate Karen at the Civic Center Plaza. Karen said Chapman packed up all his belongings early that morning and told her he was going to court. Unaware that Chapman did not actually show up for court that day, Karen had no idea where he was.
After talking with Karen, Lockwood and an assortment of police officers and mental health workers began checking the places homeless people are known to frequent in and around Santa Ana, including parks and shelters. Lockwood also filed a “tracker’s bulletin” with Chapman’s photograph for all law enforcement agencies in Orange County (and some in Los Angeles County) to be on the lookout for Chapman. Although none of these efforts proved fruitful, Lockwood was still confident Chapman would be found, given how many people were looking for him.
Ultimately, the court found there was good cause to continue the trial until the following day. In so finding, the court determined the prosecution was exercising reasonable diligence in trying to locate Chapman. The court also observed the case was proceeding within the time estimate given to the jury, despite the delays occasioned by Chapman’s absence. To counter the appearance it was giving the prosecution any sort of special treatment, the court said its ruling would be no different if the shoe were on the other foot and the defendants were the ones who were seeking additional time to track down a crucial witness.
However, by the following morning, Thursday, June 4, Chapman still had not been found. Knowing Chapman was indispensable to her case, the prosecutor asked the court to continue the trial until Monday, the 8th (court was not in session on Fridays), thinking the long weekend would give authorities enough time to find Chapman. Not surprisingly, defense counsel objected to this request. They argued continuing the trial again would cause defendants prejudice because it would: 1) Highlight the importance of Chapman as a witness and effectively enhance his credibility; 2) lead the jury to speculate the defendants were somehow behind Chapman’s disappearance; and 3) increase the likelihood of the jury forgetting the testimony they had already heard.
The defense also criticized the prosecution for failing to take appropriate steps to ensure Chapman’s presence at trial. The suggestion was that the prosecution should have put Chapman up in a motel room during the trial, but the trial court noted that would not have prevented Chapman from leaving the room on his own accord. And while the prosecution could have assigned someone to monitor Chapman in a motel room, the court said it was not feasible to put a 24-hour guard on every witness based on the possibility they might abscond. The court continued the trial until Monday, June 8.
Come Monday morning, Chapman was present in court. Outside the presence of the jury, he said the reason he did not return to court the previous Tuesday was because he was homeless, his “stuff was getting stolen” and he was “having a bad medical condition day.” It wasn’t that there was anything physically wrong with him; rather, he was simply feeling stressed out over his possessions being taken. “[T]to avoid great pain and suffering,” he decided to go to Fullerton for a few days. On Sunday, the 7th, he was walking back to Santa Ana when he was contacted by a police officer who arranged for him to stay at a motel that evening. Chapman told the court he was not feeling stressed at the moment and was prepared to resume his testimony.
Upon retaking the witness stand, Chapman was cross-examined extensively by the defense. He admitted knowing that he was supposed to return to court after his first day of testimony. However, he claimed he did not know the police had been looking for him the past week. He said he was contacted by authorities on Friday, June 5, and on Sunday, the 7th, they put him up in a motel for the night. They also bought him a meal and some clothes to wear for court.
Following Chapman’s testimony, the People rested. Deliberations commenced on Thursday, June 11, and concluded on Monday, the 15th. The jury acquitted appellants of attempted murder but found them guilty of assault with a deadly weapon and assault with force likely to cause great bodily injury. The trial court sentenced them to three years’ formal probation.
DISCUSSION
Appellants contend the trial court abused its discretion in granting the prosecution’s continuance requests. In their view, the continuances were unjustified because the prosecution failed to exercise due diligence to prevent Chapman from absconding, and it failed to show Chapman could be found within a reasonable time, once he went missing. We uphold the continuances as a proper exercise of judicial discretion.
Because continuances can lead to court congestion and hardship to victims, witnesses and jurors, they may only be granted “upon a showing of good cause.” (Pen. Code, § 1050, subds. (a), (e).) “To establish good cause for a continuance because of the unavailability of a witness, a party must show that he or she ‘exercised due diligence to secure the witness’s attendance, that the witness’s expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.’” (Jensen v. Superior Court (2008) 160 Cal.App.4th 266, 270, quoting People v. Howard (1992) 1 Cal.4th 1132, 1171 (Howard).) Whether these requirements have been met in a particular case is an issue that rests within the sound discretion of the trial court. (People v. Seaton (2001) 26 Cal.4th 598, 660; People v. Zapien (1993) 4 Cal.4th 929, 972.) Consequently, unless the trial court’s ruling on a continuance request exceeds the bounds of reason, we are powerless to disturb it. (People v. Beames (2007) 40 Cal.4th 907, 920; People v. Froehlig (1991) 1 Cal.App.4th 260, 265.)
Here, there is no question Chapman’s testimony was uniquely important. Since Murphy was unable to identify appellants, Chapman was the only witness who placed them at the scene of the alleged crimes. Thus, Chapman was not merely a material witness, he was essential to the prosecution’s case.
Precisely because of that, and because Chapman was known to be homeless, appellants assert the prosecution should have undertaken various measures to secure his presence at trial. Their suggested measures range from putting Chapman up in a motel and picking him up for trial, to subpoenaing or detaining him to ensure he would appear in court. Chapman did appear in court after the prosecution put him up in a motel during the trial. But that does not mean the prosecution was remiss for failing to provide Chapman with lodging before trial, in anticipation of his testimony. For one thing, a homeless specialist had advised the prosecutor that she did not think Chapman would do well in closed quarters. It was not unreasonable for the prosecutor to defer to the specialist on that issue.
Moreover, the record indicates that, although Chapman was homeless, he was living in very close proximity to the courthouse and had voluntarily attended court on five occasions before he went missing. Appellants are correct that the failure to subpoena a material witness may signal lack of due diligence when the prosecutor knows the witness would not otherwise be available for trial. (Baustert v. Superior Court (2005) 129 Cal.App.4th 1269.) However, Chapman’s record of attendance suggested he was both willing and able to make his expected court appearances. He even made his first scheduled appearance during the trial. This is significant because when, as here, a witness appears in court and fails to finish his testimony, the trial court usually orders the witness to return to court, which dispenses of the need for a subpoena. Unfortunately, due to inadvertence by the trial court, that did not happen here. Nevertheless, we do not believe this failure is a legitimate basis for impugning the prosecutor’s tactics. Although in hindsight it is easy to say she could have done more to prevent Chapman’s disappearance, we are satisfied she exercised due diligence in terms of securing his attendance at trial.
The remaining portion of appellants’ argument has to do with whether, once he went missing, Chapman could be found within a reasonable time, to avoid undue delay in the trial. Relying on Howard, supra, 1 Cal.4th 1132, appellants claim that in requesting a continuance, the prosecutor “could only offer the prospect of further delay” while authorities looked for Chapman. (Id. at p. 1171.) But the situation in Howard was much different from this case. Whereas the continuance in Howard was sought to obtain an expert witness in the first place, not knowing if one could be found (ibid.), the continuance here was requested to locate a known person who had previously demonstrated his willingness to testify. Howard is inapt.
All things considered, we are convinced the prosecution took appropriate measures to ensure Chapman would be found within a reasonable time, once he failed to show up in court. Not only did the police and personnel from other agencies look in the area where Chapman had been staying, they also searched a variety of other places where he (and homeless people generally) was known to frequent. In addition, a multi-county police bulletin was issued for Chapman, and even the prosecutor herself went out on the streets looking for him. These efforts resulted in Chapman being found within three days of his failure to appear. And although the trial ended up being continued a total of six days, including non-court days, this was not an unreasonable amount of time to secure Chapman’s appearance, given his importance to the case. In light of those considerations, the court acted reasonably in continuing the case, and we see no cause to disturb its rulings.
DISPOSITION
The judgments are affirmed.



BEDSWORTH, ACTING P. J.

WE CONCUR:



ARONSON, J.



FYBEL, J.