FYBEL, J. —
Defendant Chuncey Tarae Garcia was convicted of human trafficking and pimping a minor. Defendant's 14-year-old victim (the minor) did not testify at defendant's trial. Instead, the videotape of the minor's conditional examination was played for the jury. Defendant argues that his constitutional rights to confrontation, cross-examination, and due process were violated. We disagree, and affirm the judgment.
The trial court did not err in releasing the minor from commitment as a material witness, under Penal Code section 1332, after permitting her conditional examination to be taken. Further, the court did not err in determining the minor was unavailable at trial, and in denying defendant's request for the appointment of an expert witness to review the minor's records and the recommendation of the minor's therapist.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In February 2013, the minor was 14 years old, and living in Scottsdale, Arizona. She ran away from home, and obtained a job at a strip club by claiming she was 19 years old.
At the club, the minor met Cierra Robinson. Robinson told the minor she could make more money working as a prostitute than she could as a stripper. The minor told Robinson she did not want to engage in prostitution.
A couple of days later, Robinson introduced the minor to defendant, whom Robinson called Slim or King Slim. Defendant told the minor she was "stunning" and "beautiful," and he had a great opportunity for her that would involve talking to guys on the phone. Defendant drove the minor and Robinson to a hotel.
Defendant was initially nice and sweet to the minor. Defendant gave her alcohol and marijuana, and told her he had a money-making opportunity for her. Defendant told the minor she was going to work for him as a prostitute. Defendant told her she was not allowed to leave and could not tell anyone else. The minor was scared, and afraid defendant would hit her. She did not try to leave because she "was terrified."
While still in Arizona, defendant provided the minor with a cell phone,
Two or three days after the minor met defendant, they drove to California with Robinson and Baby. The minor did not want to work as a prostitute, but she was afraid and felt as if she had no choice. She consumed alcohol and smoked marijuana purchased by defendant.
The minor worked as a prostitute while in Orange County. She walked the streets within boundaries set by defendant so he would know where she was. She was required to regularly check in with defendant, and to text defendant when she had a customer and when she was done. The minor sometimes took her customers to a hotel room paid for by defendant, and sometimes had her "dates" in a car.
The minor gave all the money she earned by working as a prostitute to defendant. Each of the girls was expected to earn $200 per day; if she did not, she would not be allowed to eat dinner.
On two occasions, the minor had sex with defendant. Although she did not want to do so, she was too scared to tell him no or stop it from happening.
About 2:00 a.m. on March 1, 2013, Garden Grove Police Officer Michael Viscomi stopped the car that defendant was driving. The minor was in the backseat behind the driver's seat. Viscomi noticed that the minor appeared
The minor was arrested. She began to cry in the backseat of the patrol car, and told Viscomi she lied to him because defendant had told her that he would hit her in the face if she "crack[ed]." From the police station, the minor was transported to the Orangewood Children and Family Center, from which she ran away on at least two occasions.
Defendant told the police he went by the name "Slim." When stopped by Viscomi, defendant had $353 in cash; none of the girls had any money. In the hotel room that defendant was renting, the police found a laptop computer with a user account for "King Slim, the Boss." The computer also had a file containing 19 photographs of the minor in sexually suggestive poses. In its browsing history, the computer had the online advertisements featuring the minor.
Viscomi questioned defendant after he had been stopped. Defendant said he was in California to take care of his traffic tickets, to visit his children in Los Angeles, and to return to caring for his grandmother. Defendant told Viscomi he had met the minor through Robinson, who was working with her at a strip club. Defendant also stated the minor had told him she was 19 years old, and he thought she must be because she could not otherwise have worked in a strip club. Defendant was suspicious because the minor spoke and acted younger, but she continued to tell him she was 19 years old.
Defendant admitted paying for the hotel rooms, and paying for the minor's cell phone. Defendant denied knowing anyone was engaged in prostitution, or getting money from the minor. Defendant denied forcing the minor to do anything she did not want to do, and denied that she gave him any money over the last few days.
On April 30, 2013, a petition for commitment of the minor, pursuant to Penal Code section 1332, was filed under seal. The requested order was signed and filed under seal on the same day. The minor was held in custody at juvenile hall. On May 2, the prosecutor filed a motion for conditional examination of a material witness, which was granted. The conditional examination was conducted on May 17. At the conclusion of the conditional examination, the section 1332 hold was lifted, and the minor was ordered to return to court on June 20, which was the date then scheduled for trial.
At the request of defendant, the trial was continued multiple times, and a jury was ultimately sworn in on March 3, 2014. The minor did not appear to
At trial, the prosecution offered the testimony of an expert witness regarding pimping and human trafficking. The expert's testimony was consistent with the story the minor had told.
Defendant was convicted of human trafficking of a minor (Pen. Code, § 236.1, subd. (c)(1)), and pimping a minor under 16 years of age (id., § 266h, subd. (b)(2)). The jury found true that the human trafficking was accomplished by means of force or fear. (Id., § 236.1, subd. (c)(2).)
The trial court sentenced defendant to 17 years to life: 15 years to life for the human trafficking offense, and one year for each prison prior. The court stayed sentencing on the pimping count, pursuant to Penal Code section 654.
THE TRIAL COURT DID NOT ERR IN RELEASING THE MINOR FROM COMMITMENT AS A MATERIAL WITNESS.
Defendant argues that his rights to confrontation, cross-examination, and due process were violated because the trial court ordered a conditional examination of the minor, rather than continuing to detain her pursuant to Penal Code section 1332 until the time of trial.
Shortly after defendant's preliminary hearing, the trial court granted the prosecution's petition for an order committing the minor pursuant to Penal Code section 1332.
The prosecution moved for an order for a conditional examination of the minor. "When a material witness for the defendant, or for the people, is about to leave the state, ... the defendant or the people may apply for an order that the witness be examined conditionally." (Pen. Code, § 1336, subd. (a).) Counsel for the minor had advised the trial court of the desire to have the minor "released as quickly as possible." Defendant's counsel asked that the court continue to hold the minor pursuant to Penal Code section 1332, rather than conduct a conditional examination. Counsel argued that he could not adequately prepare for a conditional examination in the time provided by the court, which would deprive defendant of his right of cross-examination. The court granted the order for a conditional examination, which was scheduled for 10 days after the hearing.
Standard of Review
In People v. Bunyard (2009) 45 Cal.4th 836, 851 [89 Cal.Rptr.3d 264, 200 P.3d 879], the Supreme Court concluded that the trial court's decision to release a material witness on his or her own recognizance should be reviewed for abuse of discretion: "[T]he decision to keep a material witness in custody involves balancing that right [of confrontation] against the substantial due process right of the witness, who has not been charged with a crime, to not be unreasonably incarcerated.... [T]he trial court is in a better position than an appellate court to ascertain whether and to what extent a witness is a flight risk, and the appropriate measures to reduce that risk. This determination involves in part an observation of the witness's credibility and demeanor that the trial court is uniquely in a position to make. Therefore, although we conduct independent review in the sense that we independently apply an `objective, constitutionally based legal test' to certain facts [citation], we also give due deference to the trial court's determination of a witness's flight risk, and will second-guess that determination only when it is clear from the record that it was objectively unreasonable."
Further, in In re Francisco M. (2001) 86 Cal.App.4th 1061, 1079 [103 Cal.Rptr.2d 794], the appellate court held that the trial court has discretion to determine whether to require a witness to post security under Penal Code section 1332 to secure his or her attendance at trial. Because the trial court must consider the same factors when any detention is reviewed two days later, and then every 10 days thereafter (Pen. Code, § 1332, subds. (c), (d); In re Francisco M., supra, at p. 1079), the abuse of discretion standard should also apply to the trial court's "consider[ation of] any relevant changes in circumstances in determining whether to continue the detention, including whether the witness credibly has changed his attitude toward appearing at trial, or toward accepting a lesser, feasible alternative to custody" (In re Francisco M., supra, at p. 1079).
"The unique posture of the material witness counsels special concern that the procedures leading to the determination whether he should be detained are fair. Certainly the witness's right under article I, section 10 [of the California Constitution], not to be `unreasonably detained,' requires procedural safeguards allowing the interests of the witness to be heard in conjunction with the interests of the state. Further, the question whether and how long to detain a witness consistent with this right cannot be determined according to mechanical rules. As with the scope of other constitutional provisions, the decision must be based on all the relevant circumstances of the particular case." (In re Francisco M., supra, 86 Cal.App.4th at pp. 1075-1076.) The unjustified deprivation of a material witness's liberty is a violation of the due process clauses of the federal and state Constitutions. (In re D. W., supra, 123 Cal.App.4th at p. 498.)
Defendant contends the list of factors set forth in In re Francisco M. is not the proper test. Rather, defendant suggests that in People v. Bunyard, supra, 45 Cal.4th at pages 851 and 854, the court focused only on the length of the witness's detention and whether the witness had a strong incentive to flee. When considered within the specific context of this case, we do not agree that focusing on those two factors would require reversal. First, while it is true that at the time of the conditional examination, the minor had only been subject to commitment for 17 days, we do not agree that this is a de minimis time, in light of the minor's young age and need for psychological treatment. Further, if we were to look at the time the trial actually started, the minor would have been subject to commitment for more than 10 months. Second, the entire point of the conditional examination was to allow the minor to "flee the jurisdiction," in the sense that she would be returning to her home in Arizona to obtain necessary therapy and treatment.
Defendant cites People v. Roldan (2012) 205 Cal.App.4th 969, 981 [141 Cal.Rptr.3d 88], for the proposition that the minor's rights would not have been violated by a 60-day commitment pursuant to Penal Code section 1332. We believe that case is distinguishable. After one of the victims of a shooting testified at the defendant's preliminary hearing, the victim was released to the federal authorities and deported to Mexico. (People v. Roldan, supra, at p. 976.) The trial court permitted the preliminary hearing testimony to be read
Defendant argues that the court erred in granting the conditional examination because the minor was not "about to leave the state," as provided by Penal Code section 1336, subdivision (a). Because the court entered the order granting the conditional examination while the minor was committed to the juvenile hall pursuant to Penal Code section 1332, defendant argues the conditional examination order was invalid. Defendant's argument would prevent a court from ever releasing a witness in favor of that witness's testimony by means of a conditional examination, no matter how long the commitment lasted.
We reject defendant's argument that the prosecution sought a conditional examination of the minor for the purpose of obtaining her testimony before
THE TRIAL COURT DID NOT ERR IN ADMITTING THE CONDITIONAL EXAMINATION.
Defendant also argues that the trial court erred by admitting the minor's testimony from the conditional examination at trial. At a hearing at the start of trial, the court (1) denied defendant's motion under Evidence Code section 730 for the appointment of a psychiatrist or psychologist to review the minor's medical records; (2) found that the minor was unavailable to testify, pursuant to Evidence Code section 240, subdivision (a)(3); and (3) granted the prosecution's motion to allow into evidence the minor's conditional examination testimony.
Standard of Review
The trial court's order on a motion to allow a conditional examination to be admitted at trial is reviewed for abuse of discretion. (People v. Jurado (2006) 38 Cal.4th 72, 114 [41 Cal.Rptr.3d 319, 131 P.3d 400]; People v. Cadogan (2009) 173 Cal.App.4th 1502, 1512-1513 [93 Cal.Rptr.3d 881].)
Refusal to Appoint Expert Pursuant to Evidence Code Section 730
"When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required ... by any party to the action, the court ... on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify
Defendant sought the appointment of an expert psychiatrist or psychologist to assist in the review of the records provided by the minor's therapist. The therapist was neither a psychologist nor a psychiatrist. The therapist's written report and testimony explained why the therapist felt it would not be in the minor's best interests to travel to California to testify at defendant's trial. Defendant offered no evidence that the assistance of an expert witness was necessary to review and interpret the opinions of the minor's therapist. Further, the minor's unavailability was not an issue relating to defendant's guilt. The trial court did not abuse its discretion in denying defendant's request under Evidence Code section 730.
The Trial Court Did Not Err in Admitting the Conditional Examination at Trial.
Defendant claims he was prejudiced by the admission of the conditional examination for two reasons: (1) defendant's counsel did not have enough time to prepare for the examination, and (2) materials obtained after the conditional examination was taken could have been used to cross-examine or impeach the minor.
Defendant acknowledges that his right of confrontation is not absolute. (Chambers v. Mississippi (1973) 410 U.S. 284, 295 [35 L.Ed.2d 297, 93 S.Ct. 1038]; People v. Valencia (2008) 43 Cal.4th 268, 291 [74 Cal.Rptr.3d 605,
Defendant's counsel objected to the time provided to prepare for the conditional examination. Defendant's counsel had just recently been appointed, and was given 10 days to review between 500 and 600 pages of discovery before the conditional examination. However, before setting the date for the conditional examination, the trial court had confirmed that defendant's counsel had no other commitments. Also, at that point, there was a codefendant who had separate counsel. Defendant does not argue on appeal that his counsel did not have time to review the then-existing discovery, nor does defendant identify any areas of investigation he was not able to pursue or issues on which he could not have questioned the minor because he did not have enough preparation time.
Defendant also argues that he was prejudiced because he could have cross-examined or impeached the minor with material discovered after the conditional examination. In People v. Gonzales (2012) 54 Cal.4th 1234, 1261 [144 Cal.Rptr.3d 757, 281 P.3d 834], the defendant's son was determined to be unavailable to testify at trial because of the trauma he would suffer as a result. The videotaped testimony of the defendant's son from the preliminary hearing was played at trial. (Id. at p. 1247.) The defendant argued his right to cross-examination was violated because his son's therapy records, with which he could have been cross-examined or impeached, were not made available until after the preliminary hearing. (Id. at p. 1262.) The Supreme Court concluded that the defendant nevertheless had a "meaningful opportunity to cross-examine" his son (ibid.), and found no error (id. at pp. 1262-1263; see People v. Andrade (2015) 238 Cal.App.4th 1274, 1295 [190 Cal.Rptr.3d 442] [admission of victim's preliminary hearing testimony was proper, although the defendant's counsel did not have the victim's written statement to the police at the preliminary hearing]).
Defendant identifies three evidentiary items he learned of after the conditional examination, which he could have used to cross-examine or impeach the minor at trial. The first is records from the Arizona juvenile authorities. However, at the hearing on the minor's unavailability, the prosecutor stated these records had been provided to defendant's trial counsel before the conditional examination, a fact defendant does not dispute.
Finally, defendant complains that he did not have access to the minor's medical records, in which the minor told someone she had been held in a basement for three days before being transported to California. It appears from the appellate record that it was unclear whether the minor's comments were in connection with the current incident involving defendant, or a previous incident involving another perpetrator. Thus, the documents would have had little or no evidentiary value, even if defendant's counsel might have questioned the minor about them.
The judgment is affirmed.
O'Leary, P. J., and Ikola, J., concurred.