People v. Wise

• Citation: 30 Cal.Rptr.2d 413,25 Cal.App.4th 339
• Decision Date: 27 May 1994
• Docket Number: No. A060423,A060423
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Merrick A. WISE, Defendant and Appellant.

Page 413

30 Cal.Rptr.2d 413

25 Cal.App.4th 339

PEOPLE of the State of California, Plaintiff and Respondent, v. Merrick A. WISE, Defendant and Appellant.

No. A060423.

Court of Appeal, First District, Division 1, California.

May 27, 1994.

As Modified on Denial of Rehearing June 22, 1994.

Review Denied Aug. 11, 1994.

[25 Cal.App.4th 341] Roger A. Stoll, Staff Atty., First Dist. Appellate Project, San Francisco, under appointment by the Court of Appeal, for appellant/defendant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A DOSSEE, Associate Justice.

Bass, Sr. Asst. Atty. Gen., Ronald S. Matthias, Supervising Deputy Atty. Gen., Martin S. Kaye, Deputy Atty. Gen., San Francisco, for respondent/plaintiff.

Defendant was convicted in a court trial of first degree burglary. He raises two issues on appeal: (1) whether the prosecution exercised due diligence to obtain the presence of its chief witness at trial; (2) whether defendant's entry through a locked gate onto an outdoor stairway constitutes burglary.

FACTS

The Offense

On September 8, 1992, between 2 a.m. and 3 a.m., Richard Leagan looked out his window and saw appellant cutting a hole in the gate at the front of his apartment building. The building is a three-story, three-unit, Victorian-style building. A stairway leads from the sidewalk to a small porch from which the three apartment doors open. The stairway and porch are enclosed on three sides and roofed. The opening at the bottom of the stairway is secured by a wrought iron gate covered in iron mesh. The gate rests on the third step and extends to the roof. There are apparently doorbell buzzers on the gate for the three apartments. The gate is kept locked.

After observing defendant cutting through the iron mesh on the gate, Leagan called the police. When he returned to the window a few seconds later, Leagan saw defendant inside the gate, standing on the stairway. There were two bicycles on the stairway chained to the railings. Leagan saw defendant trying to break the lock on one of the bicycles. He seemed to be using the ear stem of an eyeglass frame. Defendant then tried the lock on the second bicycle, but he was equally unsuccessful. Defendant then walked out the gate and crossed the street. At no time did he move onto the porch or toward the apartment doors.

The police arrived and began to question a man who generally fit the description Leagan had given the dispatcher. Leagan saw that they had the wrong man, so he ran outside and pointed out defendant, who was walking away from the scene.

Defendant was arrested and admitted cutting the hole in the gate. He claimed that a man named "Elroy" had paid him $10 to cut through the gate. An eyeglass stem was found just inside the gate and a pair of wire cutters were found in the bushes across the street.

Efforts to Locate the Witness

Richard Leagan testified at length at the preliminary hearing held on October 8, 1992. On October 23, 1992, the prosecution prepared a subpoena for Leagan, and service was attempted on November 2, 3 and 11 at 285 Church Street, the crime site. The subpoena service agent concluded Leagan did not reside at the address. On November 18, a second subpoena was issued, and on November 23, service was attempted at 879 Haight Street. Again the subpoena service agent reported Leagan did not reside at this address.

On December 2, Michael Koppel, an investigator from the district attorney's office was assigned to look for Leagan. He went to Leagan's "last known address," 573 Scott Street, an apartment building, but Leagan's name did not appear on the computer listing for the building. Inspector Koppel was unable to get into the Scott Street building to determine if there was a building manager. On December 3, the investigator went to the Church Street and Haight Street addresses, but no one answered. At all three places, Inspector Koppel left his business card, but Leagan never called. Inspector Koppel did not speak to any occupants of any of the buildings.

Inspector Koppel ran a computer check for Leagan but found no entry. Inspector Koppel contacted the U.S. postal inspector and was told there was no forwarding address from any of the three addresses for Leagan. On December 8, the day before trial, Inspector Koppel checked for Leagan at the county jail, the coroner's office and San Francisco General Hospital, but could not find him.

At the hearing on the availability of Leagan, defense counsel asserted that Leagan was

on probation. The district attorney responded that he had checked Leagan's criminal record and it revealed that Leagan had been placed on court (unsupervised) probation in May 1992. The trial court noted, therefore, that the probation department would have no record of his whereabouts.

DISCUSSION

I. Due Diligence

Over defendant's objection, the testimony of Richard Leagan given at the preliminary hearing was used at trial, as the witness could not be located. Defendant reiterates on appeal his argument below that the prosecution failed to show due diligence in its efforts to locate Leagan.

Evidence Code section 1291 permits the use of former testimony only if the witness is unavailable. Evidence Code section 240 defines "unavailable" to mean the declarant is absent from the hearing "and the proponent of his or her statement has exercised reasonable diligence but has [failed] to procure his or her attendance by the court's process."

Whether due diligence was demonstrated is a factual question dependent on the circumstances in each case. (People v. Cummings (1993) 4 Cal.4th 1233, 1296, 18 Cal.Rptr.2d 796, 850 P.2d 1, cert. den. --- U.S. ----, 114 S.Ct. 1576, 128 L.Ed.2d 219.) The long-established rule has been that the trial court's ruling will not be disturbed absent an abuse of discretion. (People v. Jackson (1980) 28 Cal.3d 264, 312, 168 Cal.Rptr. 603, 618 P.2d 149; People v. Enriquez (1977) 19 Cal.3d 221, 235, 137 Cal.Rptr. 171, 561 P.2d 261; People v. Palacios (1968) 261 Cal.App.2d 566, 573, 68 Cal.Rptr. 137 disapproved on other grounds in People v. Navarro (1972) 7 Cal.3d 248, 271, fn. 20, 102 Cal.Rptr. 137, 497 P.2d 481.) More recently, however, the Supreme Court has suggested, without deciding, that the appellate court should independently review the record. (People v. Cummings, supra, 4 Cal.4th at p. 1296, 18 Cal.Rptr.2d 796, 850 P.2d 1; People v. Price (1991) 1 Cal.4th 324, 424, 3 Cal.Rptr.2d 106, 821 P.2d 610, cert. den. 506 U.S. 851, 113 S.Ct. 152, 121 L.Ed.2d 102; People v. Hovey (1988) 44 Cal.3d 543, 563-564, 244 Cal.Rptr.121,749P.2d776.) In the present case, under either the "abuse of discretion" standard or the "independent review" test we conclude reasonable diligence was shown.

Defendant contends the prosecution's efforts were inadequate in two respects: First, the prosecution failed to keep track of Leagan after the preliminary hearing; and, second, the prosecution made only feeble efforts to find Leagan's correct address.

On the first point, defendant relies on the Supreme Court's statement that when a witness's testimony is vital to the prosecution's case, "the People must take reasonable precautions to prevent the witness from disappearing." (People v. Hovey, supra, 44 Cal.3d at p. 564, 244 Cal.Rptr. 121, 749 P.2d 776, citing People v. Louis (1986) 42 Cal.3d 969, 991, 232 Cal.Rptr. 110, 728 P.2d 180.)

Yet, People v. Louis, supra, 42 Cal.3d 969, 232 Cal.Rptr. 110, 728 P.2d 180, the case upon which defendant relies, involved a witness who was known to be a flight risk. The witness was facing a felony theft charge and was awaiting sentence in another case. He was released from jail on his own recognizance to spend the weekend before sentencing with a friend and disappeared. The court held no due diligence was shown, as the People did not obtain the name or address of the friend and thus, did not keep the witness under surveillance. (Id., at p. 992, 232 Cal.Rptr. 110, 728 P.2d 180.)

In the present case, in contrast, the witness was a citizen-victim. He was not facing criminal charges and the record does not indicate any reason for the prosecution to believe he would disappear. Indeed, in People v. Hovey, supra, the Supreme Court distinguished Louis, noting that "we could not properly impose upon the People an obligation to keep 'periodic tabs' on every material witness in a criminal case, for the administrative burdens of doing so would be prohibitive. Moreover, it is unclear what effective and reasonable controls the People could impose upon a witness who plans to ... simply 'disappear,' long before a trial date is set." (44 Cal.3d at p. 564, 244 Cal.Rptr. 121, 749 P.2d 776.)

As to the second point, the prosecution's efforts to locate Leagan were reasonably diligent. The People attempted three times to serve Leagan at his Church Street address. They also tried a Haight Street address and the Scott Street address, believed to be Leagan's last known address. Inspector Koppel contacted the post office, the local jail, hospital and coroner.

Defendant's contention that the People should have done more--e.g., contacting DMV or Social Security--is irrelevant to our analysis. "That additional efforts might have been made or other lines of inquiry pursued does not affect [our] conclusion.... It is enough that the People used reasonable efforts to locate the witness." (People v. Cummings, supra, 4 Cal.4th at p. 1298, 18 Cal.Rptr.2d 796, 850 P.2d 1; see also People v. Guiterrez (1991) 232 Cal.App.3d 1624, 1641, 284 Cal.Rptr. 230.)

II. Entry into Building

Penal Code section 459 defines burglary as follows: "Every person who enters any house, room, apartment, ... or other building ... with intent to commit grand or petit larceny or any felony is guilty of burglary." The question we must decide is whether defendant entered the building when he broke through the gate.

It is well settled that an entry occurs for purposes of the burglary statute if any part...