People v. Celestine
| Decision Date | 09 October 2003 |
| Docket Number | A097931. |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. MAURICE CELESTINE, Defendant and Appellant. |
Appeal from Alameda County Super. Ct. Nos. 139837 & 140446B.
A jury convicted defendant Maurice Celestine of robbery and attempted robbery. The trial court thereafter found two on-bail enhancements to be true. Defendant contends that his conviction and sentence should be overturned because the trial court: (1) improperly admitted the robbery victim's preliminary hearing testimony despite the prosecution's lack of reasonable diligence in attempting to procure the witness's appearance at trial; and (2) improperly reopened the trial to allow the prosecution a second opportunity to prove the on-bail allegations. We find no merit in defendant's contentions, and affirm the judgment.
On November 20, 2000, defendant was charged in information No. 139837 with entering an inhabited dwelling with the intent to commit theft. (Pen. Code, § 459.)1 The information alleged that at the time he committed the offense, defendant had been released from custody on bail, pending trial on an earlier felony offense. (§ 12022.1.)
On May 4, 2001, defendant was charged in amended information No. 140446B with the second degree robbery of Antone Adger (& sect; 211; count one) and the attempted first degree robbery of Michael Dong (§§ 211, 212.5, subd. (b) & 664; count two). The information alleged as to each count that at the time of the offense defendant had been released from custody on bail, pending trial on an earlier, unspecified felony offense. (§ 12022.1.) In conjunction with count one, the information alleged that defendant personally used a handgun during commission of the offense.
After jury trial commenced, the trial court granted the prosecution's motion to consolidate information No. 139837 with information No. 140446B. Before the jury was sworn, Antone Adger was deemed unavailable to testify at trial and his preliminary hearing testimony was allowed to be used instead. Defendant thereafter waived his right to a jury trial on the on-bail allegations.
The jury found defendant guilty of the attempted first degree robbery of Michael Dong and second degree robbery of Antone Adger. The jury found him not guilty of residential burglary and found the allegation of firearm use in connection with the Adger robbery not true.
Following a subsequent court trial, the court found true the on-bail enhancements as to the Adger robbery and the Dong attempted robbery. The only evidence of defendant's on-bail status offered at the court trial was documentation that defendant had been on bail for the residential burglary count alleged in information No. 139837 at the time of the offenses alleged in information No. 140446B.
At the sentencing hearing, the trial court proposed to sentence defendant to seven years, eight months, including two two-year consecutive terms added for the on-bail enhancements. Defense counsel asked the court to stay imposition of the bail enhancements because defendant had, in fact, been acquitted of the only crime for which it was proven at the court trial that he had been on bail at the time of the Adger and Dong offenses.
After allowing further briefing, the trial court reopened the court trial on the on-bail allegation, and took additional evidence showing that defendant had been released on bail in another proceeding, docket No. 138890, at the time of the offenses alleged in information No. 140446B. The trial court found the on-bail enhancements true based on the evidence from docket No. 138890. It sentenced defendant to a total term of five years and eight months, including a single, two-year on-bail enhancement pursuant to section 12022.1. This timely appeal followed.
Defendant contends the prosecution failed to demonstrate due diligence in procuring Antone Adger as a witness for trial and the court therefore erred in permitting Adger's preliminary hearing testimony to be read to the jury.
At the preliminary hearing on information No. 140446B, Adger testified in substance as follows: Adger was sitting in his car when he was approached by seven or eight men who surrounded the car and claimed Adger owed one of their friends money. The group included Willie Breedlove and defendant, both of whom were known to Adger. Defendant pulled open the passenger door, got in the car, and produced a handgun. Defendant stuck it in Adger's rib cage and said, "Don't move; if you move, I'm going to shoot you." At the same time, Breedlove opened the driver's door and began hitting Adger on the side of the face and head. Defendant put the gun to Adger's head. Breedlove tore Adger's sweatpants off of him, took $170 from his pocket, and took 60 or 70 CD's, the ignition keys, and some jewelry from Adger. Defendant took a cell phone and chain.2
Adger was incarcerated at the California Correctional Center in Susanville and was to be transported to Alameda County to appear as a witness at trial. A week before he was to testify, Adger escaped from custody. A team of law enforcement personnel, headed by a California Department of Corrections (CDC) special agent, was assigned to find Adger. After commencement of the trial, the trial court held a hearing to determine whether the prosecution had exercised due diligence in attempting to procure Adger's appearance. Inspector Jack Huth from the Alameda County District Attorney's office and Agent Leo Burgos of the CDC testified regarding their efforts to locate Adger.
Burgos testified that four agents from the CDC, three Oakland police officers, two U.S. Marshals, and two state parole agents participated in the CDC team working to find Adger. They interviewed several of Adger's acquaintances and family members. They interviewed a person with whom Adger had spoken on the telephone the night before his escape and learned that Adger had arranged for an unidentified woman to pick him up in Susanville on the night of his escape. By searching through Adger's possessions and prison records, agents eventually identified the woman and set up surveillance on her residence.
On the day after his escape, officers searched a Fremont apartment listed as his mother's residence. Officers learned that Adger's mother did not live at that address but that his ex-fiancée, a Ms. Taylor, did live there. Officers conducted surveillance at Taylor's residence, and established contact with her. After Adger began calling Taylor, officers were able to communicate with him by passing messages through her. Taylor denied any knowledge of his whereabouts, but she was able to confirm that he approached her and spoke to her at a gas station in Oakland about a week after his escape.
The day before the hearing, Adger told officers that he intended to turn himself in. On the date of the hearing, agents were also about to begin surveillance of an Oakland address found for Adger's mother in his prison records. Huth testified that he contacted local hospitals, monitored Adger's rap sheet to determine if he had been taken into custody in Alameda County, and checked with the coroner's office to see if Adger had been reported dead.
Defendant claims these efforts to find Adger fell short of the level of diligence required of the prosecution under People v. Cromer (2001) 24 Cal.4th 889 (Cromer). In Cromer, the prosecution was on notice of the witness's absence fully six months before trial. (Id. at p. 903.) After learning that the witness might have moved to her mother's residence, the prosecution took no action for two days even though the case had already been called for trial. (Id. at pp. 903—904.) The prosecution investigator finally went to the mother's home after two days and learned that the mother would be out until the following day. (Id. at p. 904.) He failed to return the next day and made no attempt to contact the mother by telephone or at work. (Ibid. ) Apart from consulting computerized databases and the county jail and hospital, the prosecution made no other effort to locate the witness. (Ibid.) The Supreme Court found these efforts insufficient, especially the failure of the prosecution to adequately follow up on the promising lead that the witness had moved in with her mother. (Ibid.)
Defendant claims that the prosecution did not exercise reasonable diligence in this case because it failed to trace Adger's telephone calls with persons known to be in contact with him, failed to conduct timely and sustained surveillance at all locations he might visit, and failed to contact Adger's mother or conduct surveillance at the Oakland address found for her in Adger's prison records. However, the fact that additional efforts might have been made does not establish a lack of reasonable diligence. (People v. Cummings (1993) 4 Cal.4th 1233, 1297-1298.) Reasonable diligence does not require doing everything possible to procure a witness's attendance. (People v. Lopez (1998) 64 Cal.App.4th 1122, 1128.)
Here, as the trial court observed, a "small battalion" of law enforcement personnel had been involved in trying to locate Adger. The search began immediately after Adger's escape. Documentary records were combed for useful information, several persons with potential knowledge of Adger's whereabouts were contacted, surveillance was conducted at two residences of persons known to have had recent contact with Adger, and a line of communication was established with him. Although it is always possible with hindsight to point out stones left unturned, it is hard to fault the prosecution for a lack of diligence on this record. The search team proactively sought promising leads and pursued the leads it found as vigorously as its resources permitted. The fact that Adger was not merely a witness, but an escapee, affords an assurance not usually present that locating him...
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