People v. Duncan CA3

Filed 4/11/25 P. v. Duncan CA3
                                           NOT TO BE PUBLISHED


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 This opinion has not been certified for publication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




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




 THE PEOPLE,

                    Plaintiff and Respondent,                                                  C099572

           v.                                                                    (Super. Ct. No. 22FE017940)

 DERRICK DUNCAN,

                    Defendant and Appellant.




         A jury convicted defendant Derrick Duncan of assault with a deadly weapon
and found true an allegation that he personally inflicted great bodily injury. The trial
court sentenced him to nine years in state prison.
         Defendant now contends his constitutional right to confront prosecution witnesses
was violated by the admission at trial of the absent victim’s preliminary hearing



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testimony, because the People did not show they had used reasonable or due diligence to
secure the victim’s presence at trial. Finding no constitutional violation, we will affirm
the judgment.
                                     BACKGROUND
       The victim testified at the preliminary hearing on February 7, 2023. He said
he was without permanent housing and had been living in downtown Sacramento near
X Street. Codefendant Develle Oneal Thomas was known to him.1 Thomas was the
victim’s drug dealer and lived in a tent on X Street.
       On the day of the assault, the victim met with Thomas and defendant. Thomas
argued with the victim and slapped his face. After the argument, the victim sent a woman
to obtain fentanyl from Thomas. When Thomas learned that the woman had been sent by
the victim, he went with defendant to talk with the victim. During a fight between the
three men, defendant and Thomas hit the victim on the head, rendering him unconscious.
While he was unconscious, the victim was stabbed. The victim told responding officers
that Thomas had stabbed him.
       On cross-examination, the victim admitted he had been hit on his sides, he had not
seen a knife, but when he returned to consciousness he had stab wounds where defendant
and Thomas had hit him.
       At the conclusion of the victim’s preliminary hearing testimony, the trial court
ordered the victim to return to court on April 3, 2023, to testify at trial. The victim did
not appear on April 3, 2023. The trial was continued to May 23, 2023, but again the
victim did not appear. Following a hearing described in the discussion portion of this
opinion, the trial court allowed the prosecution to read the victim’s preliminary hearing
testimony to the jury at trial.



1 The victim knew Thomas as “Baca Stunna” and referred to him that way. We will use
the name Thomas for clarity.

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       The following evidence was also presented at trial. When police officers
responded to the scene, they found the victim bleeding with two stab wounds in his back.
The victim initially said Thomas had stabbed him, then said he did not know who hurt
him, and later said Thomas and defendant assaulted him, although he was not sure if it
was defendant or both men that stabbed him.
       Another witness, S.C., testified that once the victim was on the ground, defendant
punched him and kicked him in the face. Later, defendant met up with S.C. and Thomas.
Defendant said he had to get rid of a knife because he stabbed a guy. Defendant had
blood on his shirt.
       The jury found defendant guilty of assault with a deadly weapon (Pen. Code,
§ 245, subd. (a)(1))2 and found true various enhancement and aggravating circumstance
allegations. The trial court sentenced defendant to nine years in state prison.
       Additional background is set forth in the discussion as relevant to the contention
on appeal.
                                       DISCUSSION
       Defendant contends his constitutional right to confront prosecution witnesses was
violated by the admission at trial of the absent victim’s preliminary hearing testimony,
because the People did not show they had used reasonable or due diligence to secure the
victim’s presence at trial.
                                             A
       On May 24, 2023, the trial court held an evidentiary hearing on the efforts made
by the People to secure the victim’s attendance at trial.
       Criminal Investigator Elizabeth Strauss began by describing her efforts to locate
the victim and subpoena him to appear at the preliminary hearing. She looked in the
Sacramento County Known Persons Finder to see if the victim had any contacts with law


2 Undesignated statutory references are to the Penal Code.


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enforcement. She also checked with the victim’s probation officer and with Vital
Records, along with other county law enforcement databases. Strauss said she was
unable to locate the victim using any of those sources.
       Strauss placed the victim’s name on the Sacramento County Web Known Persons
Finder watch list, which would give her an e-mail alert if local law enforcement had
contact with the victim. Through that method she learned the victim’s whereabouts
shortly before the preliminary hearing.
       When Investigator Strauss met with the victim, she learned he had no physical
address, e-mail address, telephone number, or working telephone. She saw his tent along
the railroad tracks. Investigator Strauss brought the victim to the preliminary hearing,
and then took him back to his tent. There was a subsequent law enforcement “sweep” of
the area where the victim had set up his tent. All the individuals without housing at the
location were moved, and although the victim remained on the Known Persons Finder
watch list, Investigator Strauss did not know what happened to him after the sweep.
       Investigator Strauss continued to search for the victim in an effort to ensure that he
would appear at trial. She learned that some officers had run warrants for the victim and
contacted the officers to see if they knew his whereabouts, but they did not. She noted
that the victim had a felony warrant, which meant he would most likely be arrested if
contacted by law enforcement. Strauss contacted the Sacramento Police Department’s
Impact team to ascertain if they had any contact with the victim, and let them know she
was looking for him. She also contacted the Department of Public Assistance and
learned the victim was not receiving any benefits. The investigator also checked to see if
the victim was in custody in California or Nevada and determined he was not.
       The victim’s probation officer indicated the victim had given his father’s address
as his contact, but the victim had not been in contact with probation. At the time, the
probation office had last spoken with the victim’s father in April, and he had no idea
where the victim might be. Investigator Strauss contacted the victim’s father by

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telephone and text, but he had not seen or heard from the victim. Investigator Strauss
was unable to locate any friends of the victim.
       On cross-examination, Investigator Strauss stated she repeatedly searched various
areas looking for the victim or his tent. She went back to the area that had been involved
in the sweep but also to other areas where people had set up camp.
       On the day of trial, Investigator Strauss spoke with the victim’s probation officer
and an investigator from Medi-Cal. She learned from the Medi-Cal investigator, and also
from the Department of Human Assistance, that they had a mailbox store address for the
victim, but the victim’s last contact with that address had been in 2022.
       The trial court found that the People had met their burden to show that the victim
was unavailable and that they had made reasonable efforts to secure his presence. It
further found that during the victim’s preliminary hearing testimony, the defense had the
interest, motive, and opportunity to cross-examine him.
                                             B
       “A criminal defendant has the right, guaranteed by the confrontation clauses of
both the federal and state Constitutions, to confront the prosecution’s witnesses.”
(People v. Herrera (2010) 49 Cal.4th 613, 620 (Herrera).) But the right is not absolute.
(Chambers v. Mississippi (1973) 410 U.S. 284, 295.) Testimonial statements may be
admissible if the declarant is unavailable, and the defendant has had a prior opportunity
to cross-examine. (Crawford v. Washington (2004) 541 U.S. 36, 59.) “Evidence Code
section 1291 codifies this traditional exception. [Citation.] When the requirements of
Evidence Code section 1291 are met, ‘admitting former testimony in evidence does not
violate a defendant’s right of confrontation under the federal Constitution. [Citations.]’ ”
(People v. Wilson (2005) 36 Cal.4th 309, 340 (Wilson).)
       “Evidence Code section 1291, subdivision (a)(2), provides that former testimony
is not rendered inadmissible as hearsay if the declarant is ‘unavailable as a witness,’ and
‘[t]he party against whom the former testimony is offered was a party to the action or

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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.’ In turn, Evidence Code section 240, subdivision (a)(5), states a declarant is
‘unavailable as a witness’ if the declarant 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.’ ” (Wilson, supra, 36 Cal.4th at p. 341.)
       “[T]he prosecution bears the burden of showing that the witness is unavailable
and, additionally, that it made a ‘good-faith effort’ (Barber v. Page (1968) 390 U.S. 719,
725) or, equivalently, exercised reasonable or due diligence to obtain the witness’s
presence at trial. (People v. Cromer (2001) 24 Cal.4th 889, 892; see People v. Valencia
(2008) 43 Cal.4th 268, 291-292 [‘California law and federal constitutional requirements
are the same in this regard.’].)” (People v. Sanchez (2016) 63 Cal.4th 411, 440
(Sanchez).) The courts have not divined a mechanical definition for reasonable or due
diligence. It “ ‘connotes persevering application, untiring efforts in good earnest, [and]
efforts of a substantial character.’ ” (Cromer, at p. 904.) “[T]o establish unavailability,
the prosecution must show that its efforts to locate and produce a witness for trial were
reasonable under the circumstances presented.” (Herrera, supra, 49 Cal.4th at p. 623.)
       The totality of efforts of the proponent, in this case the prosecution, to achieve the
presence of the witness must be considered by the court. “Prior decisions have taken into
consideration not only the character of the proponent’s affirmative efforts but such
matters as whether [the proponent] reasonably believed prior to trial that the witness
would appear willingly and therefore did not subpoena him when he was available
(People v. Banks (1966) 242 Cal.App.2d 373, 377), whether the search was timely begun,
and whether the witness would have been produced if reasonable diligence had been
exercised [citation].” (People v. Linder (1971) 5 Cal.3d 342, 347.) Other relevant
considerations include “ ‘the importance of the proffered testimony, and whether leads of
the witness’s possible location were competently explored.’ ” (Herrera, supra, 49 Cal.4th

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at p. 622.) The prosecution shows due diligence where its efforts are timely, reasonably
extensive, and carried out over a reasonable period. (People v. Bunyard (2009)
45 Cal.4th 836, 856.) In contrast, diligence is lacking where the prosecution’s efforts to
locate the witness are “perfunctory or obviously negligent.” (Id. at p. 855.)
        We will defer to the trial court’s determination of the historical facts if supported
by substantial evidence, but we independently review the trial court’s ultimate finding of
reasonable or due diligence. (Sanchez, supra, 63 Cal.4th at p. 440.)
                                               C
        Defendant points to a number of things the People should have done to try and
find the victim. But just because additional efforts could have been made does not defeat
the trial court’s determination of reasonable or due diligence. (People v. Diaz (2002)
95 Cal.App.4th 695, 706.) The law requires reasonable efforts to locate the witness, not
perfection. (Ibid.)
        For example, defendant argues the People should have started searching for the
victim before April 2023. However, following the preliminary hearing, the People asked
the trial court to order the victim back to court on April 3, 2023. The victim responded
affirmatively to that order and there is no evidence at that time of any hesitancy by the
victim to obey that order. He had cooperated with Investigator Strauss in appearing for
the preliminary hearing. We decline to fault the investigator’s efforts prior to April 3,
2023.
        As for the time period between April 3 and the trial date, the victim had no
physical address, no telephone number, no known friends, one family member who did
not know his whereabouts, and a broken telephone. Nevertheless, Investigator Strauss
checked law enforcement databases and put defendant’s name on the Known Persons
Finder watch list. The watch list had previously worked in locating him for the
February 7, 2023 preliminary hearing.



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       Investigator Strauss also checked hospitals and ascertained the victim was not
deceased or in custody. She contacted the Sacramento Police Department Impact Team
that had performed the sweep, and also contacted Public Assistance, the victim’s
probation officer, and the victim’s father. Law enforcement and Public Assistance had
no information, and his father and the probation officer had not seen the victim for
months. The victim had a felony warrant for his arrest but had not been detained.
       In addition, the investigator went into the field five or more times between early
April and early May. She knew what he looked like and what his tent looked like. She
located a mailbox store address for him but it had not been used since 2022.
       Defendant argues the People failed to learn where the victim had been relocated
after the sweep. But there is no evidence public officials placed the victim at a different
location or that they knew where he went. The evidence is that the officers directed the
individuals without housing to move and they did so.
       Defendant also takes issue with the failure of Investigator Strauss to question other
individuals without housing, or local proprietors, about the victim’s location. But there
was no evidence of possible local proprietors who might have been helpful to the search,
and as for other individuals without housing, Investigator Strauss testified they often did
not have positive associations with law enforcement and she did not believe questioning
them would be helpful.
       Defendant further argues the investigator did not look in heavy drug use areas,
check hospitals often, or stake out the victim’s mailbox store address. But again, the
possibility of additional efforts does not defeat the trial court’s determination.
       The record demonstrates that the People exercised reasonable and due diligence in
attempting to locate the victim. Because the victim was unavailable, and because the
defense had the prior interest, motive, and opportunity to cross-examine the victim at the
preliminary hearing, admission of the victim’s preliminary hearing testimony at trial did
not violate defendant’s constitutional right of confrontation.

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                                  DISPOSITION
      The judgment is affirmed.



                                              /S/
                                           MAURO, J.



We concur:



    /S/
ROBIE, Acting P. J.



    /S/
FEINBERG, J.




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