People v. Cromer

• Citation: 103 Cal.Rptr.2d 23,15 P.3d 243,24 Cal.4th 889
• Decision Date: 22 January 2001
• Docket Number: No. S076444.,S076444.
• Court: United States State Supreme Court (California)
• Parties: The PEOPLE, Plaintiff and Respondent, v. Freddie Lee CROMER, Defendant and Appellant.

103 Cal.Rptr.2d 23

24 Cal.4th 889

15 P.3d 243

The PEOPLE, Plaintiff and Respondent, v. Freddie Lee CROMER, Defendant and Appellant.

No. S076444.

Supreme Court of California.

January 22, 2001.

William D. Farber, under appointment by the Supreme Court, San Rafael, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Steven D. Matthews and Jennevee H. de Guzman, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, J.

The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution's witnesses. (U.S. Const., 6th Amend.; Cal. Const, art. I, § 15.) That right is not absolute, however. An exception exists when a witness is unavailable and, at a previous court proceeding against the same defendant, has given testimony that was subject to cross-examination. Under federal constitutional law, such testimony is admissible if the prosecution shows it made "a good-faith effort" to obtain the presence of the witness at trial. (Barber v. Page (1968) 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255; accord, Ohio v. Roberts (1980) 448 U.S. 56, 74, 100 S.Ct. 2531, 2543, 65 L.Ed.2d 597.) California allows introduction of the witness's prior recorded testimony if the prosecution has used "reasonable diligence" (often referred to as due diligence) in its unsuccessful efforts to locate the missing witness. (Evid.Code, § 240, subd. (a)(5); all further statutory references are to the Evidence Code unless otherwise indicated.)

The issue here is this: What standard of review must an appellate court apply when evaluating a trial court's due diligence determination? This court's past decisions have given conflicting signals on the proper resolution of this issue, and these conflicting signals have caused or contributed to a conflict in the decisions of the Courts of Appeal. Having granted review to resolve that conflict, we now conclude that the proper standard is independent, de novo, review rather than the more deferential abuse of discretion test. Because the Court of Appeal correctly applied independent review in this case, we affirm its judgment.

I

A jury convicted defendant Freddie Lee Cromer of three counts of second degree robbery with personal use of a handgun, and the trial court sentenced him to 23 years in prison. Only the third count is of concern in this appeal. The evidence on that count showed the following.

On the evening of May 25, 1997, Courtney Culpepper was walking to her home when defendant hit her on the head with a gun while his companion took her purse. The two men ran away.

Culpepper identified defendant in a photo lineup and testified at defendant's preliminary hearing. When she failed to appear for the trial, the prosecution sought to introduce Culpepper's preliminary hearing testimony under the former-testimony exception to the hearsay rule. (§ 1291.) After a hearing, the trial court determined that the prosecution had used reasonable diligence in its unsuccessful attempt to secure Culpepper's attendance at trial, and the court allowed the prosecution to read Culpepper's preliminary hearing testimony to the jury. This prior testimony was the only evidence presented in support of the third count. On appeal, defendant challenged the admission of Culpepper's preliminary hearing testimony on the ground that the prosecution had not used reasonable diligence to locate her. The Court of Appeal agreed and reversed the conviction on the third count after an independent review of the trial court's reasonable diligence determination.

The People, through the Attorney General, petitioned for review on the sole issue of the appropriate standard for review of a trial court's due diligence determination.

II

The standards of review for questions of pure fact and pure law are well developed and settled. Trial courts and juries are better situated to resolve questions of fact, while appellate courts are more competent¹ to resolve questions of law. Traditionally, therefore, an appellate court reviews findings of fact under a deferential standard (substantial evidence under California law, clearly erroneous under federal law), but it reviews determinations of law under a nondeferential standard, which is independent or de novo review. (See People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)

Selecting the proper standard of appellate review becomes more difficult when the trial court determination under review resolves a mixed question of law and fact. Mixed questions are those in which the "`historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the [relevant] statutory [or constitutional] standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.'" (Ornelas v. United States (1996) 517 U.S. 690, 696-697, 116 S.Ct. 1657, 134 L.Ed.2d 911, quoting Pullman-Standard v. Swint (1982) 456 U.S. 273, 289, fn. 19, 102 S.Ct. 1781, 72 L.Ed.2d 66; see also Townsend v. Sain (1963) 372 U.S. 293, 309, fn. 6, 83 S.Ct. 745, 9 L.Ed.2d 770 ["mixed questions of fact and law ... require the application of a legal standard to the historical-fact determinations"].) The parties here agree, as do we, that the due diligence inquiry presents such a mixed question.

In its 1995-1996 term, the United States Supreme Court considered the appropriate standard for review of mixed question determinations in two cases in which the mixed question went to the heart of a federal constitutional right: Thompson v. Keohane (1995) 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (Thompson) (involving the Fifth Amendment right against self-incrimination), and Ornelas v. United States, supra, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (Ornelas) (involving the Fourth Amendment right against unreasonable searches and seizures). The high court concluded in both cases that appellate courts should use independent, de novo review, for the mixed question determinations that implicated these constitutional rights.

At issue in Thompson was whether the defendant was in custody during an interrogation for purposes of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 and the Fifth Amendment to the federal Constitution. In the words of the high court: "Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is set and the players' lines and actions are reconstructed, the court must apply an objective test to resolve `the ultimate inquiry'.... [This] second inquiry ... calls for application of the controlling legal standard to the historical facts. This ultimate determination, we hold, presents a `mixed question of law and fact' qualifying for independent review." (Thompson, supra, 516 U.S. at pp. 112-113,116 S.Ct. 457, fn. omitted.)

The high court in Thompson distinguished the mixed question before it from two other mixed questions to which it had applied a deferential standard of review: juror bias and competency to stand trial. The court explained: "[T]he trial court's superior capacity to resolve credibility issues is not dispositive of the `in custody' inquiry. Credibility determinations ... may sometimes contribute to the establishment of the historical facts and thus to identification of the `totality of the circumstances.' But the crucial question entails an evaluation made after determination of those circumstances: if encountered by a `reasonable person,' would the identified circumstances add up to custody as defined in Miranda? [Citations.] [¶] Unlike the voir dire of a juror [citation], or the determination of a defendant's competency [citation], which `take[s] place in open court on a full record,' [citation], the trial court does not have a first-person vantage on whether a defendant was `in custody' for Miranda purposes. [Citation.] Furthermore, in fathoming the state of mind of a potential juror or a defendant in order to answer the questions, `Is she free of bias?,' `Is he competent to stand trial?,' the trial court makes an individual-specific decision, one unlikely to have precedential value. In contrast, `in custody' determinations do guide future decisions." (Thompson, supra, 516 U.S. at pp. 113-114, 116 S.Ct. 457, fns. omitted.)

The Thompson court concluded its analysis with this observation: "Classifying `in custody' as a determination qualifying for independent review should serve legitimate law enforcement interests as effectively as it serves to ensure protection of the right against self-incrimination. As our decisions bear out, the law declaration aspect of independent review potentially may guide police, unify precedent, and stabilize the law ." (Thompson, supra, 516 U.S. at p. 115, 116 S.Ct. 457.)

In the same term, the high court decided Ornelas, in which it resolved a conflict among the federal circuit courts over the applicable standard of review of findings of reasonable suspicion and probable cause under the Fourth Amendment to the federal Constitution. After determination of the events leading up to the stop or search, the relevant legal inquiry there was "whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause." (Ornelas, supra, 517 U.S. at p. 696, 116 S.Ct. 1657.) Writing for the majority, consisting of eight of the nine justices, Chief Justice Rehnquist began by observing: "We have never, when reviewing a probable-cause or reasonable-suspicion determination ourselves, expressly deferred to the trial court's determination." (Id. at p. 697, 116...