Filed 9/20/17 P. v. Zaragoza CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION 4

THE PEOPLE, Plaintiff and Respondent, v. ROGELIO ZARAGOZA, Defendant and Appellant.

A143667 (Sonoma County Super. Ct. No. SCR565937)

Appellant Rogelio Zaragoza (full name Rogelio Carlos-Zaragoza) (appellant) appeals from a sentence of 75 years to life in state prison imposed following his conviction by a jury of kidnapping to commit the rape of Jane Doe 3 (Pen. Code, § 209, subd. (b)(1)),[1] forcible rape in concert against Jane Doe 3 (§ 264.1), assault by means likely to produce great bodily injury against Jane Doe 3 (§ 245, subd. (a)(1)), forcible rape in concert against Jane Doe 2 (§ 264.1), and forcible rape in concert against Jane Doe 1 (§ 264.1). The jury also found true as to each of the three rape in concert counts that the victims had been kidnapped for rape (§ 667.61, subds. (a) & (d)).

Appellant argues the trial court violated his Sixth Amendment right to confront witnesses by finding Jane Doe 3 unavailable within the meaning of Evidence Code section 240 and permitting her testimony from a prior trial to be read into evidence pursuant to Evidence Code section 1291, subdivision (a)(2). We hold that the trial court’s factual findings were supported by substantial evidence and, applying our independent review, that Jane Doe 3 was unavailable within the meaning of Evidence Code section 240 and the confrontation clause of the Sixth Amendment. The trial court, therefore, did not err in admitting Jane Doe 3’s prior testimony into evidence under Evidence Code section 1291, subdivision (a)(2).

I.PROCEDURAL BACKGROUND

This was appellant’s second trial. In 2010, a jury convicted appellant of three counts of rape in concert, two counts of false imprisonment, and one count each of kidnapping and assault with a deadly weapon. The jury also found true three kidnapping for rape enhancements. Appellant was sentenced to 75 years to life in state prison.

On appeal from appellant’s convictions after his first trial, we reversed, holding that the trial court had committed prejudicial error by failing to instruct the jury on reasonable doubt. The remittitur was issued September 13, 2013.

On July 2, 2014, the Sonoma County District Attorney filed a fourth amended consolidated information charging appellant with kidnapping to commit the rape of Jane Doe 3 (§ 209, subd. (b)(1)) (count 1), forcible rape in concert against Jane Doe 3 (§ 264.1) (count 2), assault by means likely to produce great bodily injury against Jane Doe 3 (§ 245, subd. (a)(1)) (count 3), forcible rape in concert against Jane Doe 2 (§ 264.1) (count 4), false imprisonment by violence against Jane Doe 2 (§ 236) (count 5), forcible rape in concert against Jane Doe 1 (§ 264.1) (count 6), and false imprisonment by violence against Jane Doe 1 (§ 236) (count 7). The information also alleged as to each of the three rape in concert charges that the victims had been kidnapped for rape (§ 667.61, subds. (a) & (d)).

On August 15, 2014, before closing argument, the People dismissed the two false imprisonment charges, counts 5 and 7.

On August 18, 2014, the jury found appellant guilty on all remaining charges and found true the kidnapping for rape allegations.

On September 16, 2014, the trial court sentenced appellant to a total term of 75 years to life in state prison—25 years to life in state prison for each rape in concert (counts 2, 4, and 6), to run consecutively. The trial court imposed the aggravated term of four years in state prison on count 3, the assault by means likely to produce great bodily injury against Jane Doe 3, and seven years to life in state prison on count 1, the kidnapping of Jane Doe 3, but stayed these terms pursuant to section 654.

Appellant filed a timely notice of appeal on October 2, 2014.

II. FACTS

Jane Does 1 and 2 testified at trial; Jane Doe 3 was found to be unavailable, so her testimony from appellant’s first trial was read to the jury over appellant’s objection.

A. Jane Doe 1

Jane Doe 1 testified that on June 16, 2006, between 10:00 p.m. and 11:00 p.m., she was at a convenience store in Santa Rosa to buy alcohol. In the parking lot, Jane Doe 1 saw two men talking in front of a car. She approached them, asked for a ride to her friend’s house, and got into their car.

Appellant drove while Jane Doe 1 sat in the back seat with the other man. When she realized appellant was driving in the wrong direction, Jane Doe 1 tried to get out of the car. She kicked and screamed, telling them in Spanish to stop. Jane Doe 1 panicked because she was being taken somewhere by strange men and she did not know what was going to happen to her. Appellant drove north on Highway 101 and spoke on the phone, giving someone directions to where they were going. Jane Doe 1 saw a car following them. Appellant drove to a vineyard, pulled into the vineyard and stopped the car. Jane Doe 1 and the two men got out of appellant’s car. The second car pulled in behind them and two more men got out.

The men offered to give Jane Doe 1 money in exchange for sex. Jane Doe 1 refused. The parties returned to their cars and resumed driving. The second man in appellant’s car began to touch Jane Doe 1 on the breasts and vagina. Jane Doe 1 pushed him away. She kept pleading to be allowed to get out of the car, but appellant kept driving.

Appellant drove to a second vineyard, where Jane Doe 1 and the men again got out of the cars. Jane Doe 1 repeatedly tried to run away, but was dragged back to the car each time. The men beat her in the face with closed fists and choked her as Jane Doe 1 fought back. Appellant was one of the men who beat her. Each of the men, including appellant, raped her “over and over and over again.” The rapes and beatings occurred during the period from 10:00 p.m. June 16 through 6:00 a.m. June 17, 2006. One of the men tried to have anal intercourse with Jane Doe 1. When she bit him, he struck her across the face. Jane Doe 1 never consented to sex with any of the men.

After the rapes, Jane Doe 1 did not want to get back into the car with the men. She tried to run away again, but was dragged back to the car and hit in the ribs, which knocked the wind out of her. She was placed back in the car and driven back to Santa Rosa. Jane Doe 1 testified she went to her friend’s house and sat with him for six or seven hours before reporting the assaults to the police.

When she testified at trial, Jane Doe 1 admitted she had lied in two respects during her initial interview by the police. First, she told the officer she had been dragged into appellant’s car, when in truth she had asked for a ride and gotten into the car voluntarily. Second, Jane Doe 1 told the police that she had fallen asleep in a creek after she was dropped off in Santa Rosa. In fact, she testified, she had been looking for heroin to ingest.

Nurse practitioner Sullivan conducted a sexual assault examination of Jane Doe 1 on June 17, 2006. Jane Doe 1 complained of pain to her chin, neck, the left side of her head, and her left thigh. Nurse Sullivan observed two suction injuries on Jane Doe 1’s neck, a scrape on her thigh, and multiple bruises on her knees, upper thighs, and legs.

Nurse Sullivan found evidence of an assault from her examination of Jane Doe 1’s vagina and cervix, including a piece of green fabric, a long black hair, and multiple pieces of debris and dirt.

The vaginal and anal swabs from Jane Doe 1 tested positive for sperm cells. When the vaginal and anal swabs from Jane Doe 1 were analyzed, the DNA expert found there were at least two male contributors to the DNA profiles. Appellant could not be excluded as one of the contributors. There was strong evidence that appellant was a contributor to the DNA profile from the anal swab.

Santa Rosa Police Department Detective Hector De Leon summarized Jane Doe 1’s statements to him at the hospital on June 17, 2006. During the interview, Jane Doe 1 was in pain and cried as she described what had occurred. Her description of the events was generally consistent with her testimony, except in the two respects described above.

In October 2009, Detective De Leon contacted Jane Doe 1 to advise her that they had developed a suspect from a possible DNA match. At that time, Jane Doe 1 volunteered that she had lied to him in her initial report regarding the two issues described above. She said the rest of her 2006 statements were accurate.

B.Jane Doe 2

On July 28, 2006, sometime after 8:00 p.m., Jane Doe 2 was walking on Russell Avenue in Santa Rosa toward a store, where she intended to use a pay telephone. She had been drinking beer and some hard liquor that day. A car stopped near her and the two men in it whistled or said something to Jane Doe 2. Jane Doe 2 approached the car and asked if the men knew where she could get some crystal methamphetamine. She also asked if they would give her a ride and get her beer and chips. Jane Doe 2 got into the back seat of the car. Appellant was driving the car and an older man was in the back seat. Appellant drove to Aston Avenue, where he stopped to pick up a third man. When the car stopped, Jane Doe 2 tried to get out of the car, but the third man pushed her back in and got in beside her. They drove to a gas station, where one of the men went in and purchased beer and chips. Appellant then drove onto Highway 101 heading north toward Windsor. Jane Doe 2 panicked and started kicking the window. The men held her down by the arms and legs and covered her mouth. Jane Doe 2 fought back. Appellant drove for at least 20 to 30 minutes and stopped at a vineyard. As a pretext to get out of the car so she could run, Jane Doe 2 asked to smoke a cigarette. When she got out and attempted to run, the men grabbed her by the arms and dragged her back to the car. Jane Doe 2 screamed and asked the men to take her back to Apple Valley or Santa Rosa. When they put her back in the car, Jane Doe 2 opened a beer, threw it at the men, and tried to run away again. The men threw her on the ground and began to rape her. One would hold her arms while another would forcibly rape her. All three men, including appellant, raped her. Two of the men each raped her twice. Jane Doe 2 never consented to the sexual intercourse. Jane Doe 2 and the men got back in the car. She cried in the back seat as they drove her back to Apple Valley, where they dropped her off. As they drove away, Jane Doe 2 wrote the car’s license plate number on her hand. She reported the assault to law enforcement officers the next day.

In his testimony, Detective David Linscomb summarized his July 29, 2006 interview of Jane Doe 2. Her description of the sexual assault to Detective Linscomb essentially paralleled her testimony at trial. The license plate Jane Doe 2 recorded was assigned to a car registered to Antonio Carlos, appellant’s brother. Based on information from appellant’s brother, Detective Linscomb prepared a photographic lineup containing appellant’s picture and showed it to Jane Doe 2. Jane Doe 2 pointed to appellant’s picture, among others, and stated he resembled the driver of the car.

Nurse practitioner Kavanaugh conducted a sexual assault examination on Jane Doe 2 on July 29, 2006. Jane Doe 2 complained of pain in her left leg and right arm, and she had soreness in her vaginal area. Nurse Kavanaugh observed on Jane Doe 2 scratches and bruising consistent with the assault she described. In Jane Doe 2’s pelvic exam, Nurse Kavanaugh observed redness and swelling in the labia minora consistent with the sexual assault Jane Doe 2 described. Nurse Kavanaugh also took vaginal slides and other DNA samples from Jane Doe 2.

One of the vaginal slides taken from Jane Doe 2 contained spermatozoa cells. Analysis of the DNA from this semen matched appellant’s reference sample.

C.Jane Doe 3

As noted, Jane Doe 3 did not testify at this trial. Her testimony from appellant’s first trial was read into the record by the prosecution.

On July 24, 2009, shortly before midnight, Jane Doe 3 went for a walk in downtown Santa Rosa. As she walked, a car with two men approached her, flashing its lights at her. Jane Doe 3 crossed the street to get away from them, but the men turned around and came back toward her. This happened two or three times. As the car pulled up beside her, the driver—identified as appellant—opened the front passenger door. A second man holding a knife approached Jane Doe 3 on foot, pushed her into the car, and squeezed in next to her. Jane Doe 3 kicked and screamed “[p]lease don’t kill me.”

Neighbors who heard Jane Doe 3 screaming and saw appellant’s car at the scene of the abduction called the police and reported their observations.

As appellant drove onto the freeway headed north, the passenger ordered Jane Doe 3 at knife point to get into the back seat and take off all her clothes. The passenger climbed into the back seat, removed a tampon from Jane Doe 3’s vagina, and raped her. Appellant spoke to the passenger in Spanish as he assaulted Jane Doe 3. Jane Doe 3 saw the flashing emergency lights from a police car following them. Appellant began driving extremely fast, over 100 miles per hour. The passenger quickly dressed and returned to the front seat. When appellant eventually stopped the car, he and his passenger fled on foot. Both eventually were captured by police officers later that night. The next day, Jane Doe 3 identified appellant as the driver and his brother, Lionel Carlos-Zaragoza, as the passenger. Jane Doe 3 had not consented to intercourse.

When counsel for appellant had an opportunity to cross-examine Jane Doe 3 at the first trial, he did not ask any questions.

Sheriff Deputy Shawn Forghani arrived at the location where appellant had stopped the car and found Jane Doe 3 sitting on the ground crying. She described the events leading up to her assault consistently with her testimony in the first trial. Jane Doe 3 was able to provide a detailed description of the passenger and a general description of appellant.

When Jane Doe 3 arrived at the hospital at 3:15 a.m., physician’s assistant Knappman conducted a sexual assault examination. He observed that she was menstruating and had redness and bruising on her arms. At the hospital, Jane Doe 3 also provided a detailed and consistent statement to Deputy Michael Yoder.

Officers at the scene searched the car appellant was driving and found a bloody tampon in the back seat. When he was apprehended several hours later, Lionel Carlos-Zaragoza had a two-bladed pocket knife in his front pocket. After Lionel Carlos-Zaragoza was arrested, a detective took DNA swabs from his penis.

When tested, the swabs taken from Lionel Carlos-Zaragoza’s penis tested positive for blood and contained a major female DNA profile that matched Jane Doe 3.

III.ANALYSIS

Appellant argues the trial court violated his Sixth Amendment right to confront the witnesses against him by admitting Jane Doe 3’s prior testimony into evidence because the People failed to exercise reasonable diligence in attempting to secure her appearance at trial.

A. Factual Background

On August 11, 2014, the People filed a request that the trial court allow Jane Doe 3’s prior testimony to be read into the record due to her unavailability. Counsel for appellant objected. The trial court held an Evidence Code section 402 hearing to determine whether the People could show reasonable diligence in their efforts to produce Jane Doe 3 as a witness at trial within the meaning of Evidence Code section 240. The People called two witnesses, district attorney investigators Robert Demiguel and Kris Allen, and offered into evidence without objection two exhibits: copies of two subpoenas served on Jane Doe 3 (Exhibit A) and a three-page chronology of the efforts investigators Demiguel and Allen made to find Jane Doe 3 (Exhibit B). The evidence at the hearing showed that the People took the following steps in their attempts to subpoena and produce Jane Doe 3 as a witness.

On May 1, 2014, appellant’s trial was set to begin July 18, 2014. On June 4, 2014, investigator Demiguel attempted to serve Jane Doe 3 with a trial subpoena at her address of record, her father’s house in Santa Rosa. He was advised her father had passed away in December 2013.

On June 6, 2014, investigator Demiguel attempted to serve Jane Doe 3 at a second address associated with her in Santa Rosa. He found the address via Accurint. He was advised by the person at the residence that Jane Doe 3 no longer lived at that address.

On June 10, 2014, investigator Demiguel succeeded in locating Jane Doe 3 and serving her with a subpoena for July 22, 2014 at the residence of her boyfriend, Alan F., on Greenwood Drive in Santa Rosa.

On July 2, 2014, appellant’s trial was continued to August 1, 2014. On July 7, 2014, investigator Demiguel attempted to serve a new trial subpoena for August 5, 2014 on Jane Doe 3 at her boyfriend’s residence. Alan stated Jane Doe 3 did not live with him and he did not know where she was. Investigator Demiguel called Jane Doe 3’s grandmother, Betty, but she had not heard from Jane Doe 3.

The next day, investigator Demiguel called Alan again to see if he had any more information about Jane Doe 3. Alan said he believed she was homeless and may be living near the railroad tracks in downtown Santa Rosa and that she possibly frequents the Santa Rosa Plaza Mall.

On July 9, 2014, investigator Demiguel contacted a former associate of Jane Doe 3, Byron M., but he had not seen her since her father passed away. Investigator Demiguel checked the Santa Rosa Plaza and its vicinity, but was unable to locate Jane Doe 3. He met with the security supervisor of the plaza and showed him Jane Doe 3’s photograph, but the supervisor had not seen her at the mall. Investigator Demiguel then checked the area of the railroad tracks in downtown Santa Rosa, to no avail. Finally, investigator Demiguel returned to Alan’s residence on Greenwood Drive to conduct surveillance for an hour.

Jane Doe 3 had her own criminal case pending in Sonoma County Superior Court. She was scheduled to appear July 10, 2014 in Department 7 of the superior court. Investigator Demiguel went to court and waited to see if she would make her appearance. Jane Doe 3 failed to appear and the court issued a bench warrant for her arrest. Investigator Demiguel attempted to contact another associate of Jane Doe 3, Haley O., but was told by Haley’s mother that Haley was in custody at the Sonoma County Main Adult Detention Facility. Investigator Demiguel then contacted Alan at his residence again, but Alan maintained that he had not seen Jane Doe 3 and did not know where she was residing. Investigator Demiguel left his business card with Alan.

On July 14, 2014, investigator Demiguel met with Haley at the county jail. She did not know Jane Doe 3’s whereabouts, but suspected that she may be in the South Park area of Santa Rosa.

The next day, investigator Demiguel contacted Santa Rosa Police Department Narcotics Detective Vaugh Andrews to see if he was familiar with Jane Doe 3 or her whereabouts. He was not familiar with her.

On July 16, 2014, Jane Doe 3’s grandmother, Betty, called investigator Demiguel to advise him that a friend of Jane Doe 3’s, Mickey, may know how to contact her. Investigator Demiguel called the telephone number Betty provided for Mickey and left a voice mail message. Investigator Demiguel sent an e-mail to Santa Rosa Police Department Officer Rakoski, who works in the South Park area of Santa Rosa, with information on Jane Doe 3 and her outstanding bench warrant. Investigator Demiguel asked Officer Rakoski to contact him if he was able to find Jane Doe 3. Investigator Demiguel then went to Mickey’s residence, but no one answered the door. He left his business card with contact numbers on the door. Finally, investigator Demiguel checked the South Park neighborhood, Martin Luther King Park, the downtown bus depot, and the homeless shelter in Santa Rosa. He was not able to locate Jane Doe 3. He left a business card with the shelter staff.

On a daily basis, investigator Demiguel checked the local criminal database to see if Jane Doe 3 was in custody. During his search for her, investigator Demiguel also checked CLETS, the California Law Enforcement Teletype System, with negative results. On July 21, 2014, when investigator Demiguel checked the local database, he learned that Jane Doe 3 had been arrested that day. He went to the jail and served her with the August 5, 2014 subpoena.

On August 5, 2014, the day Jane Doe 3 had been subpoenaed to testify, investigator Allen (who was acting in investigator Demiguel’s absence) checked the local database and learned that Jane Doe 3 was no longer in custody. She checked only local databases because she had no leads to suggest that Jane Doe 3 had left Sonoma County. Investigator Allen advised the people at the front counter (presumably of the district attorney’s office where Jane Doe 3 was told to report) of Jane Doe 3’s potential appearance and gave them a photograph of Jane Doe 3. Investigator Allen tried to call Jane Doe 3 at an old telephone number, without success. She then went out into the Santa Rosa community to try to find Jane Doe 3 and bring her to court. She went to the Greenwood Drive house, canvassed the residents, and spoke to Alan. She went to an apartment on DeTurk and spoke to an associate named Arthur B. Arthur agreed to try to help find Jane Doe 3. Investigator Allen and district attorney advocate Wheeler repeatedly checked and monitored the lobby of the district attorney’s office, the interior and exterior of the courtroom to which Jane Doe 3 had been subpoenaed, the courtroom bathrooms, and the entire courthouse area. Jane Doe 3 did not report to the district attorney’s office or appear at the courthouse.

Investigator Allen called Jane Doe 3’s mother, but she had had no contact with Jane Doe 3 and did not know her location. She suggested investigator Allen contact Jane Doe 3’s paternal grandmother, Betty. Investigator Allen contacted Betty, but she too had had no contact with Jane Doe 3 and did not know her location. Betty offered to ask the residents at Greenwood Drive because she was friendly with them. Arthur B. later called investigator Allen to report that he had asked around and learned that Jane Doe 3 was known to sleep in homeless encampments along the Santa Rosa railroad tracks. Jane Doe 3’s grandmother, Betty, called investigator Allen to relay from the residents at Greenwood Drive that Jane Doe 3 sleeps on the railroad tracks in a homeless camp near Barham and Beechwood Avenue in Santa Rosa. Betty herself walked a significant length of the railroad tracks in Santa Rosa, but could not find Jane Doe 3. Alan also wanted to assist and was out scouring Santa Rosa to find Jane Doe 3 and bring her to court.

On August 5, 2014, investigators Allen and Chapman also went to the railroad tracks near Barham and Beechwood Avenue and checked numerous homeless encampments. Investigator Allen conducted a stakeout of one specific homeless camp for a period of time. She was unable to locate Jane Doe 3.

On August 6, 2014, investigator Demiguel conducted a search of the local law enforcement database with negative results. He drove back to Greenwood Drive and spoke to Alan. Alan again denied having any knowledge of Jane Doe 3’s whereabouts. Investigator Demiguel then checked the homeless shelter, Julliard Park, and the railroad tracks in downtown Santa Rosa, but was not able to locate Jane Doe 3.

The next day, investigator Demiguel again checked the local database, but found no information on Jane Doe 3’s whereabouts.

On August 11, 2014, investigator Demiguel checked the local database to see if Jane Doe 3 had been incarcerated over the weekend. He knew Jane Doe 3 had been ordered to appear on her own pending criminal case that day, so he went to Department 7 between 8:30 a.m. and 10:00 a.m. to see if she would appear. Investigator Demiguel advised the deputy district attorney in Department 7 that he was looking for Jane Doe 3. He heard the deputy public defender in that courtroom calling out Jane Doe 3’s name. Jane Doe 3 did not appear.

At the conclusion of the Evidence Code section 402 hearing, the trial court ruled based on the testimony of investigators Demiguel and Allen that the People had shown they exercised due diligence in attempting to secure the presence of Jane Doe 3. Although the investigators had not looked at jails outside of Sonoma County to see if Jane Doe 3 was in custody in another county, the court noted that all the contacts they had for Jane Doe 3 were in Sonoma County, including her mother, a boyfriend, and the places where she had been seen before. She was arrested in Sonoma County and served with a subpoena in the county jail. She was homeless, but her contacts were in Sonoma County. The court stated, “I think Ms. Allen testified she did look at the rap sheet and it didn’t show out-of-county arrests.”[2] The trial court found that Jane Doe 3 was unavailable and allowed her testimony from the prior trial to be read to the jury.

B. Standard of Review

In reviewing a trial court’s ruling that a witness is unavailable to testify at trial, we apply a two-tiered standard of review: “We review the trial court’s resolution of disputed factual issues under the deferential substantial evidence standard . . . , and independently review whether the facts demonstrate prosecutorial good faith and due diligence.” (People v. Herrera (2010) 49 Cal.4th 613, 623 (Herrera), citing People v. Cromer (2001) 24 Cal.4th 889, 902–903 (Cromer).) Appellant argues the standard of review is de novo. That is true, once the historical facts have been determined or when the facts are not materially in dispute. (Herrera, at pp. 623, 628; Cromer, at pp. 894, 900–902.)

C. Due Diligence

Under both the federal and state constitutions, a criminal defendant has the right to confront the witnesses against him. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) The confrontation clause “ ‘seeks “to ensure that the defendant is able to conduct a ‘personal examination and cross-examination of the witness, in which [the defendant] 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.’ ” [Citations.] To deny or significantly diminish this right deprives a defendant of the essential means of testing the credibility of the prosecution’s witnesses, thus calling “into question the ultimate ‘integrity of the fact-finding process.’ ” ’ ” (Herrera, supra, 49 Cal.4th at pp. 620–621, quoting Cromer, supra, 24 Cal.4th at pp. 896–897.)

Although important, the right to confront witnesses is not absolute. (Chambers v. Mississippi (1973) 410 U.S. 284, 295.) “Traditionally, there has been ‘an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant [and] which was subject to cross-examination . . . .’ ” (Cromer, supra, 24 Cal.4th at p. 897, quoting Barber v. Page (1968) 390 U.S. 719, 722.) Before it may offer into evidence testimony from a prior trial, however, the prosecution must demonstrate the unavailability of the witness. (Cromer, at p. 897.) A witness is “unavailable” for trial only if the prosecution has made a good faith (but unsuccessful) effort to obtain the witness’s presence at trial. (Barber v. Page, at p. 725.)

The traditional exception to the confrontation clause for prior testimony is codified in Evidence Code section 1291, which 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.” When the elements of Evidence Code section 1291 are met, former testimony may be admitted against the defendant without violating the confrontation clause. (Herrera, supra, 49 Cal.4th at p. 621; People v. Wilson (2005) 36 Cal.4th 309, 340 (Wilson).)

The term “unavailable” is defined in Evidence Code section 240, subdivision (a)(5), as follows: “ ‘unavailable as a witness’ means that the declarant is . . . [¶] (5) Absent 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.’ ” ’ ” (Herrera, supra, 49 Cal.4th at p. 622, quoting People v. Cogswell (2010) 48 Cal.4th 467, 477.) Relevant factors include “the timeliness of the search, the importance of the proffered testimony, and whether leads of the witness’s possible location were competently explored.” (Wilson, supra, 36 Cal.4th at p. 341.) The standards for reasonable diligence are the same for federal constitutional requirements and California law. (Herrera, at p. 622.)

In the present case, the trial court found that all known contacts for Jane Doe 3 were in Sonoma County. Her mother and boyfriend lived in the county. She was homeless, but she had been seen in various locations in the county. She had been arrested in Sonoma County and served with a subpoena in the county jail. The investigators did not search for her in jails outside of Sonoma County, but the fact that she was found in the Sonoma County jail did not indicate she would likely be found in another county jail. Her California arrest record did not show out-of-county arrests. The trial court’s factual findings are supported by substantial evidence. (Herrera, supra, 49 Cal.4th at pp. 623, 628–629.)

Applying our own independent review, we conclude that the People met their burden of demonstrating they exercised reasonable diligence and good faith in their efforts to secure Jane Doe 3’s presence at trial. (Herrera, supra, 49 Cal.4th at pp. 623, 628–629.) More than one month before the July 18, 2014 trial date, investigator Demiguel began earnest efforts to find Jane Doe 3 and serve her with a trial subpoena. He began with her residence of record, her father’s home. When that did not succeed, he attempted an address listed in Accurint, an online database. Failing that, he tried Jane Doe 3’s boyfriend’s home and succeeded in personally serving the subpoena on Jane Doe 3.

When the trial was rescheduled for August 1, 2014, investigator Demiguel renewed his efforts to find Jane Doe 3 so he could serve her with a subpoena for the new trial date. He logically started with Jane Doe 3’s boyfriend’s house, where he had found her a month before. When he learned she did not live there, investigator Demiguel began contacting family members and friends who were most likely to know her whereabouts. Investigator Demiguel followed up on every lead he was given. When Alan said Jane Doe 3 may be located at the railroad tracks or the plaza mall, investigator Demiguel immediately searched both locations. After searching the mall, he spoke to the supervisor of security at the mall, showed him Jane Doe 3’s picture, and asked the supervisor if he had seen Jane Doe 3 at the mall. He personally checked the railroad tracks in downtown Santa Rosa. Investigator Demiguel also conducted surveillance at Alan’s residence to see if Jane Doe 3 would show up there.

Through his local database research, investigator Demiguel knew Jane Doe 3 had a pending criminal case with a court appearance required July 10, 2014. He attended court to see if she would make her court appearance. When she failed to appear, the court issued a bench warrant for her arrest.

Investigator Demiguel continued his almost daily efforts to contact Jane Doe 3’s known associates to see if any could suggest where he might find her. He recontacted Alan to see if Alan had seen her. He visited Haley in jail and learned that Jane Doe 3 may be in the South Park area of Santa Rosa. Investigator Demiguel contacted a Santa Rosa narcotics detective to see if he knew Jane Doe 3. He also alerted a Santa Rosa police officer who worked the South Park area that Jane Doe 3 had an outstanding arrest warrant and asked him to contact investigator Demiguel if he was able to find her. Investigator Demiguel made several efforts to speak with Mickey based on grandmother Betty’s suggestion that Mickey may know where Jane Doe 3 was located. Investigator Demiguel searched the South Park neighborhood, Martin Luther King Park, the downtown bus depot and the homeless shelter in Santa Rosa.

Investigator Demiguel’s daily check of the local criminal database paid off on July 21, 2014. He learned Jane Doe 3 was arrested that day and immediately went to the jail to serve her with the August 5, 2014 subpoena.

The People could reasonably assume that Jane Doe 3, having been personally served with a subpoena, would appear on August 5, 2014 as commanded by the subpoena. (See People v. Lopez (1998) 64 Cal.App.4th 1122, 1128.) That day, investigator Allen, acting in investigator Demiguel’s absence, checked the local database and learned that Jane Doe 3 was not in custody. She alerted the district attorney’s front office that Jane Doe 3 may appear in the lobby in response to her subpoena and provided a picture of Jane Doe 3 to the front counter employees. She called Jane Doe 3’s last known telephone number, but could not reach her.

When Jane Doe 3 did not report in at the district attorney’s office, investigator Allen went out into the community to search for Jane Doe 3 in all the locations she was known to frequent in an effort to find her and bring her to court. Investigator Allen went to Greenwood Drive and spoke with Jane Doe 3’s boyfriend, Alan. She went to the DeTurk address of associate Arthur B. Investigator Allen then returned to the locations Jane Doe 3 would likely be found if she had complied with the subpoena—the lobby of the district attorney’s office and the courthouse at which she had been ordered to appear. Investigator Allen learned Jane Doe 3 still had not checked in with the district attorney staff at their front counter. Investigator Allen and another district attorney staff member looked for Jane Doe 3 in the interior and exterior of the courtroom, the bathrooms, and the entire courthouse area, with no success.

Investigator Allen contacted Jane Doe 3’s closest relatives, her mother and paternal grandmother. She enlisted the help of the grandmother, Alan, and Arthur—the people closest to Jane Doe 3—to help hunt for her. The grandmother and Arthur both repeated that Jane Doe 3 was most likely living in a homeless encampment along the railroad tracks in Santa Rosa. The grandmother walked a significant length of the railroad tracks to search for Jane Doe 3 herself. Alan also scoured Santa Rosa looking for Jane Doe 3. Investigators Allen and Chapman personally went to the railroad tracks and searched numerous homeless encampments for Jane Doe 3. Investigator Allen set up a stakeout at one of the encampments to see if Jane Doe 3 would appear. Despite these efforts, none was successful in locating Jane Doe 3.

The next day, investigator Demiguel returned and took up the search for Jane Doe 3. He checked the local database to see if she had returned to custody, where he was last able to serve her. He drove to Greenwood Drive and spoke to Alan—the person most likely to know Jane Doe 3’s whereabouts—with no luck. Investigator Demiguel went to the homeless shelter, Julliard Park, and the railroad tracks in Santa Rosa, but was unable to locate Jane Doe 3. He checked the local database again on August 7, 2014, with negative results.

On August 11, 2014, investigator Demiguel again checked the local database to see if Jane Doe 3 had been incarcerated over the weekend. He knew Jane Doe 3 had been ordered to appear in Department 7 on her own case that day, so he went to Department 7 looking for her from 8:30 a.m. to 10:00 a.m. Investigator Demiguel advised the deputy district attorney in Department 7 that he was looking for Jane Doe 3 and heard the deputy public defender in that courtroom calling out Jane Doe 3’s name. Jane Doe 3 did not appear.

The investigators’ efforts to find Jane Doe 3 were earnest, thorough, and exhaustive. Appellant points to no specific lead that was not competently explored. Appellant argues that the investigators failed to inquire of other counties to determine whether Jane Doe 3 was in their custody. As the trial court noted, however, there was no evidence that Jane Doe 3 had any contacts in any other county. The fact that she had been arrested in Sonoma County did not suggest she was likely to have been arrested in other counties. When investigator Demiguel checked her statewide CLETS rap sheet, he found no out of county arrests. Indeed, there is no evidence in the record that Jane Doe 3 ever left Sana Rosa. All her family members, closest friends, and contacts were in Santa Rosa. All the locations where she was believed to sleep and visit were in Santa Rosa. There is nothing in the record to suggest that Jane Doe 3 had ever been or was likely to be in custody outside of Sonoma County.

Appellant points out that the People knew Jane Doe 3 was hard to locate. That is true; Jane Doe 3 was homeless at the time of the trial. However, investigator Demiguel succeeded in locating Jane Doe 3 twice and serving her with two trial subpoenas. The record contains no evidence that the People had reason to believe prior to August 5, 2014 that Jane Doe 3 would fail to honor the subpoena personally served on her. Although she was homeless and, therefore, difficult to locate, this did not portend that she would be reluctant to come to court to testify against a man who, she believed, had violently kidnapped, beaten, and raped her. It was not until Jane Doe 3 failed to appear on August 5, 2014 as commanded by the subpoena that the district attorney had specific reason to believe she would fail to honor the subpoena.

“The prosecution is not required ‘to keep “periodic tabs” on every material witness in a criminal case . . . .’ [Citation.] Also, the prosecution is not required, absent knowledge of a ‘substantial risk that this important witness would flee,’ to ‘take adequate preventative measures’ to stop the witness from disappearing.” (Wilson, supra, 36 Cal.4th at p. 342.) Jane Doe 3 had never expressed reluctance to testify against appellant. The record contains no evidence suggesting she was attempting to avoid service of the subpoenas; only that—due to her homelessness—it was not easy to find her to serve her with a subpoena.

Appellant argues the prosecution’s failure to ask that the court issue a bench warrant for Jane Doe 3 when she failed to appear on August 5, 2014 demonstrates their lackadaisical efforts to find her. However, a bench warrant had already been issued for Jane Doe 3 when she failed to appear on her own criminal case July 10, 2014. There is no reason to believe that a second bench warrant would have improved the prosecution’s chances of locating Jane Doe 3.

Appellant also argues that the prosecution did not ask the police to be on the lookout for Jane Doe 3. The record indicates the contrary. On July 14, 2014 investigator Demiguel contacted Santa Rosa Police Department Narcotics Detective Vaugh Andrews to ask if he knew anything about Jane Doe 3’s current whereabouts. When he learned from Haley that Jane Doe 3 may be in the South Park area of Santa Rosa, investigator Demiguel sent an email to Santa Rosa Police Officer Steve Rakoski, who works in the South Park area, provided information on Jane Doe 3, and advised him that she had an outstanding bench warrant. Investigator Demiguel specifically asked Officer Rakoski to contact him if he was able to find Jane Doe 3. Investigator Demiguel also took a photograph of Jane Doe 3 to the security supervisor at the plaza mall and asked if he had seen Jane Doe 3 at the mall.

Appellant focuses on the time period between the afternoon of August 6 and August 12, 2014 and argues that the only efforts the prosecution made were local database searches and investigator Demiguel’s search for Jane Doe 3 in Department 7 on August 11, 2014, the day she was ordered to appear on her pending case. By isolating this narrow time period, however, appellant fails to acknowledge all the efforts that had preceded August 6, 2014. “The totality of efforts of the proponent to achieve presence of the witness must be considered by the court.” (People v. Sanders (1995) 11 Cal.4th 475, 523 (Sanders).) The record demonstrates that investigators Demiguel, Allen, and Chapman, aided by additional district attorney staff members, chased down every lead they were given as to Jane Doe 3’s whereabouts. They contacted Jane Doe 3’s mother, grandmother, boyfriend, and associates Byron, Haley, Mickey, and Arthur. They returned to Alan’s home, where Jane Doe 3 had first been located, five more times and even conducted surveillance there. They repeatedly searched the railroad tracks and enlisted the help of Jane Doe 3’s grandmother, boyfriend Alan, and associate Arthur to help scour Santa Rosa for her. Investigator Allen set up a stakeout at one of the homeless encampments in hopes of seeing Jane Doe 3 there. The investigator searched the plaza mall, the South Park neighborhood, Martin Luther King Park, Julliard Park, the bus depot, and the local homeless shelter. They searched the courthouse on three occasions when Jane Doe 3 was either ordered to appear on her case or subpoenaed to appear on appellant’s case. Their efforts were hardly desultory or indifferent.

Appellant similarly argues that the investigators failed to check with the post office, the Department of Motor Vehicles, hospitals, phone companies, utility companies, voter registration, unions, social security office, the military, or any jail outside the county, citing People v. Walton (1996) 42 Cal.App.4th 1004, 1010, overruled in part by Cromer, supra, 24 Cal.4th at pp. 900–901. In Walton, however, the defense investigator who was tasked with finding an important witness had taken only the following steps between December 1992 and April 1994: he had gone to the witness’s apartment building once, checked with the post office for a forwarding address, called the witness’s high school to learn that he had graduated, and spoken with one friend of the witness who agreed to try to find the witness. The investigator contacted this friend once in 1992 and once in 1993 without results. He made no effort to find the witness between his last contact with the friend sometime in 1993 and the trial in April 1994. When the trial court asked the investigator whether he thought he did everything he could do to get the witness into court, the investigator responded, “no.” (Walton, at p. 1010.)

The prosecution is not required to do “everything possible” to procure a witness’s attendance. (People v. Lopez (1998) 64 Cal.App.4th 1122, 1128.) The evaluation of due diligence must be made in light of the particular circumstances of each individual case. (Sanders, supra, 11 Cal.4th at p. 523.) In the present case, the investigators knew Jane Doe 3 was homeless and most likely slept in homeless camps by the railroad tracks in Santa Rosa. Under these circumstances, it would make little sense to check the post office, the Department of Motor Vehicles, telephone companies, utility companies, voter registration, unions, the social security office, or the military to see if Jane Doe 3 had updated her residence address with any of them. There was no evidence to suggest she was in a hospital. And, as noted, no evidence supported the speculation that she would likely be in custody in another county.

The question is not whether one can in hindsight conceive of additional steps the investigators could have taken; the question is whether the People took reasonable measures under the circumstances in a good faith effort to bring Jane Doe 3 to court to testify. We conclude they did so. “ ‘That additional efforts might have been made or other lines of inquiry pursued does not affect this conclusion . . . . It is enough that the People used reasonable efforts to locate the witness.” (Wilson, supra, 36 Cal.4th at p. 342, quoting People v. Cummings (1993) 4 Cal.4th 1233, 1298.)

IV. CONCLUSION

We conclude that, under the circumstances of this case, the People met their burden of demonstrating they made reasonable, good faith, and diligent efforts to procure Jane Doe 3’s appearance at appellant’s trial. There is no dispute that appellant was a party to the first trial, or that he had the right and opportunity to cross-examine Jane Doe 3 at the first trial with an interest and motive similar to that he had at the second trial. (Evid. Code, § 1291, subd. (a)(2).) The trial court did not err in finding Jane Doe 3 unavailable or admitting her prior testimony into evidence in appellant’s trial.

The judgment is affirmed.

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