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Filed 8/16/21 P. v. Finocchio CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH MICHAEL FINOCCHIO,

Defendant and Appellant.

A160469

(Solano County

Super. Ct. No. FCR348373)

Defendant Joseph Michael Finocchio appeals a judgment convicting 

him of attempted murder with several gun use enhancements. He contends 

the trial court erred in admitting into evidence the victim’s preliminary 

hearing testimony and statements made by the victim to the police shortly 

after the shooting. We find no prejudicial error in the admission of this 

evidence at trial. The Attorney General notes, however, and defendant does 

not dispute, that the trial court failed to properly sentence defendant on one 

of the gun use enhancements. Accordingly, we will remand for resentencing 

on the enhancement and affirm the judgment in all other respects.
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Background

Defendant was charged with one count of premeditated attempted 

murder. (Pen. Code,1 §§ 187, subd. (a), 664, subd. (a).) The information 

alleged that he personally used a firearm and personally and intentionally 

discharged a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b) & (c)) and 

that he had a prior strike conviction (§§ 667, subds. (b)–(i), 1170.12) and a 

prior serious felony conviction (§ 667, subd. (a)(1)). 

At trial, testimony was presented that defendant knew the victim

through defendant’s ex-girlfriend, Nancy,

2 and that defendant was angry 

with the victim because he believed the victim was dating Nancy.

Nancy testified that she and defendant broke up about a week before 

the shooting. On the day of the shooting, she and the victim went to the 

house she had shared with defendant to collect her belongings. As she was 

pulling out of the driveway, she saw defendant exit a neighbor’s house. The 

victim told her to drive away. As she left the scene, she saw the victim

walking towards his truck; she did not see any signs of an altercation 

between him and defendant. She waited for the victim four or five blocks 

away from the house, but when he did not arrive she drove back towards the 

house. As she was doing so, the victim came driving towards her. He stopped 

his truck, climbed into her truck and said, “Take me to the hospital.” At the 

hospital, the victim was treated for a gunshot wound to his chest.

The victim was unavailable to testify at trial. Over defendant’s 

objection, a transcript of his preliminary hearing testimony was admitted 

into evidence. At the preliminary hearing, the victim acknowledged his 

1 All statutory references are to the Penal Code unless otherwise noted.

2 For the purpose of confidentiality, we refer to defendant’s ex-girlfriend 

by her first name only.
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friendship with Nancy but then answered “I don’t remember” to virtually 

every question posed by the prosecutor. When asked if he was intentionally 

saying he did not remember things that he actually remembered, he replied 

“No. I really don’t remember.” Defense counsel did not ask the victim any 

questions at the preliminary hearing.

Over defendant’s objection, two police officers testified to statements 

the victim made to them while at the hospital The victim told Officer Laura 

Bellamy that as he sat in the passenger seat of his truck, he saw someone 

walk to the front of the vehicle. The person fired a gun and he heard a 

gunshot. He moved to the driver’s seat and reversed the vehicle. He heard 

three more gunshots and drove away. He believed the last shot struck him in 

the chest. He did not “see who [the shooter] was” but he described the shooter 

as “a shorter[] white male, wearing a darker colored beanie.” He had not seen 

defendant while at the residence and did not know if defendant was the one 

who shot him. He told the officer that about a week before the shooting when 

he and Nancy had previously tried to retrieve her belongings, he and 

defendant had gotten into a fight. He claimed, however, that “after the 

scuffle, there’s no beef.” Despite these initial statements, towards the end of 

the interview he acknowledged that “he was 90 percent sure [defendant] did 

it.” He told the officer that he could identify defendant when defendant stood 

on the grass as he drove forward but explained he was not forthcoming 

because “he didn’t want to be labeled as a rat.” 

After telling the officer he was 90 percent sure defendant was the 

shooter, the victim explained that defendant was there when he and Nancy

arrived at the house to retrieve her belongings. Because defendant “was 

yelling,” the victim told Nancy to leave while he gathered the rest of her 

clothing. As he drove away, he saw defendant on the corner. He swerved as 
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defendant fired three shots. He was hit by the last shot. When he saw 

Nancy’s truck approaching, he honked his horn to get her attention, told her 

he had been shot, and asked her to take him to the hospital.

Police Detective Lisa Sampson spoke with the victim at the hospital 

after his interview with Officer Bellamy. The victim identified defendant by 

his photograph as the shooter. He clarified that at the time he told Nancy to 

leave he had not seen defendant. Rather, he heard two men arguing and 

assumed that one of them was defendant. As he got into his truck, someone 

shot in his direction and yelled something like, “I thought I told you not to 

come back around here.” As he tried to drive away, the shooter, who was 

standing in the grass at the corner, fired three shots, striking him in the 

chest with the last shot. 

A .22 caliber handgun subsequently was found hidden in defendant’s

house. The gun used bullets consistent with the casings recovered near the 

scene of the shooting.

The jury found defendant guilty of attempted murder and found the 

firearm allegations true, but found not true the allegation that defendant 

committed the crime willfully, deliberately, and with premeditation. The trial 

court found that defendant had suffered a prior strike conviction and a prior 

serious felony conviction.

Defendant was sentenced to an aggregate term of 29 years in prison:

the midterm of seven years for the offense, doubled to 14 years because of his 

prior strike, plus 10 years for using a firearm pursuant to section 12022.53,

subdivision (b) and an additional five years pursuant to section 667, 

subdivision (a). The court stayed the section 12022.5 enhancement pursuant 

to section 654 and dismissed the section 12022.53, subdivision (c)

enhancement pursuant to section 1385.
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Defendant timely filed a notice of appeal.

Discussion

1. The victim’s preliminary hearing testimony was properly admitted

pursuant to Evidence Code section 1291.

“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.) 

However, there is “ ‘ “an exception to the confrontation requirement where a 

witness is unavailable and has given testimony at previous judicial 

proceedings against the same defendant [and] was subject to crossexamination.” ’ ” (Id. at p. 621.) California codifies this exception in Evidence 

Code section 1291, subdivision (a), which provides that “former testimony,” 

such as preliminary hearing testimony, does not constitute inadmissible 

hearsay “if the declarant is unavailable as a witness,” 3 and “[t]he party 

against whom the former testimony is offered was a party to the action or 

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” (id., subd. (a)(2)).

Defendant challenges the admissibility of the victim’s preliminary 

hearing testimony under section 1291, subdivision (a)(2) on two grounds. He 

argues that the victim’s “refusal to testify” deprived him of an adequate 

opportunity for cross-examination. Alternatively, he argues that given the 

victim’s testimony, his interest in impeaching or challenging the victim at the 

3 Under Evidence Code section 240, subdivision (a)(5), a witness is 

unavailable when he or she 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.” Defendant 

does not challenge the trial court’s finding that the victim was unavailable at 

trial.
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preliminary hearing was not the same as his interest in challenging that 

testimony at trial. We disagree.

Defendant was given the opportunity to cross-examine the victim at the 

preliminary hearing but declined to do so. Counsel’s decision not to crossexamine the victim because of the victim’s purported lack of memory does not 

mean that defendant was denied the opportunity for cross-examination. By 

failing to undertake any cross-examination of the victim, defendant failed to 

establish a record for his claim. When the victim was called to testify at the 

preliminary hearing, one officer had already testified to his identification of 

defendant as the shooter. Had counsel directly confronted the victim with his

statements to the police on cross-examination and had he remained 

completely silent or unresponsive, it might be argued that his silence or 

unresponsiveness effectively denied defendant his constitutional right of 

confrontation.4 We cannot presume, however, that the victim would have 

remained silent or unresponsive to questions defense counsel never asked.

(See State v. Nyhammer (2009) 197 N.J. 383, 414 [963 A.2d 316, 334] [“That 

counsel decided to forgo critical cross-examination because of [the witness’s] 

unresponsiveness to many questions on direct does not mean that defendant 

was denied the opportunity for cross-examination.”]; People v. GarciaCordova, 2011 IL App (2d) 070550-B [963 N.E.2d 355, 370] [“Where a 

defendant does not attempt to cross-examine a witness on her out-of-court 

4 In his reply brief, defendant identifies the type of questions he might 

have asked the victim at the preliminary hearing. “The important questions 

had to do with [the victim’s] statements to the police which he said he did not 

remember. How well could he see the shooter? How far away was the 

shooter? Had he consumed drugs or alcohol that evening? Did drugs or 

alcohol affect his ability to observe? What was the basis of his identification 

of [defendant]?”
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statements, he cannot complain that the witness was unavailable for crossexamination.”].)

For this reason, defendant’s reliance on People v. Giron-Chamul (2016) 

245 Cal.App.4th 932 is misplaced. In that case, the court held that the 

victim’s refusal to answer questions on cross-examination denied defendant 

his constitutional right to confrontation. (Id. at p. 961.) The court 

emphasized, however, that the issue before it involved the minor’s “refusal to 

answer . . . important questions” on cross-examination, not her real or feigned 

failure to remember. (Id. at p. 965 [noting that “a witness’s failure to 

remember, whether real or feigned, generally does not deny the defendant an 

opportunity for effective cross-examination”].) The court expressly observed 

that “[t]his is not a case where the defendant had an opportunity for crossexamination but chose to forgo it as a matter of strategy.” (Id. at p. 964, citing 

State v. Nyhammer, supra, 197 N.J. at p. 414 [963 A.2d at p. 334].)

Defendant’s suggestion that he had no motive to cross-examine the 

victim at the preliminary hearing is not persuasive. As noted above, by the 

time the victim testified at the preliminary hearing, Officer Bellamy had

already testified to the victim’s prior statement and identification of 

defendant as the shooter. Thus, the motivation for cross-examining the victim 

at the preliminary hearing—to call into question the reliability of his prior 

identification—was no different than the motivation for doing so at trial.

Accordingly, there was no error in the admission at trial of the victim’s

preliminary hearing testimony.

2. The victim’s statements to the police were admissible under Evidence 

Code section 1294.

Evidence Code section 1294 permits the statements of an unavailable 

witness to be introduced at trial as prior inconsistent statements of the 

witness if the statements were previously introduced at the preliminary 
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hearing.

5 Evidence Code section 1294 was “designed to overcome the 

admissibility problems associated with out-of-court statements which are 

inconsistent with an unavailable witness’s former testimony by requiring 

that the recorded statement be introduced at the prior hearing where the 

witness actually testified. It is well settled that the inherent unreliability 

typically associated with such out-of-court statements may be deemed 

nonexistent when the defendant has had an opportunity to question the 

declarant about the statements.” (People v. Martinez (2003) 113 Cal.App.4th 

400, 409.)

Here, Evidence Code section 1294 applies because (1) the victim was an 

unavailable witness at trial; (2) his testimony at the preliminary hearing was 

admitted at trial pursuant to Evidence Code section 1291; (3) the statements 

that he made to the police officers were inconsistent with his testimony at the 

preliminary hearing that he could not remember the shooting6; and (4) 

defendant was given an opportunity to cross-examine the victim about his

5 Evidence Code section 1294, subdivision (a) reads: “The following 

evidence of prior inconsistent statements of a witness properly admitted in a 

conditional examination, preliminary hearing, or trial of the same criminal 

matter pursuant to Section 1235 is not made inadmissible by the hearsay 

rule if the witness is unavailable and former testimony of the witness is 

admitted pursuant to Section 1291: [¶] (1) A video or audio recorded 

statement introduced at a conditional examination, preliminary hearing, or 

prior proceeding concerning the same criminal matter. [¶] (2) A transcript, 

containing the statements, of the conditional examination, preliminary 

hearing, or prior proceeding concerning the same criminal matter.”

6 Defendant does not challenge the trial court’s finding that the victim’s

statements to the officers were admissible as prior inconsistent statements 

because the victim’s lack of memory could be found to be feigned and his 

testimony was deliberately evasive. (See People v. Johnson (1992) 3 Cal.4th 

1183, 1219–1220 [as long as there is a reasonable basis for concluding 

witness's lack of memory is evasive and untruthful, admission of prior 

statements is proper].)
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statements at the preliminary hearing. Defendant’s arguments to the 

contrary are not persuasive. 

In his opening brief, defendant argues that Evidence Code section 1294

is not applicable because the victim’s statements to the police officers were 

introduced at the preliminary hearing through the officers’ testimony and not 

by introduction of a recording of the statements. Section 1294, however, does 

not require that the prior inconsistent statements be recorded and admitted 

in that form at the preliminary hearing. Section 1294, subdivision (a)(2) 

expressly contemplates that the statements may be introduced through a 

witness’s testimony. 

People v. Martinez, supra, 113 Cal.App.4th at page 409 is not to the 

contrary. In that case, the court held that a recording of prior inconsistent 

statements made to the police by an unavailable trial witness was not 

admissible because the recording had not been introduced at the preliminary 

hearing. The court explained, “to be admissible at trial under Evidence Code 

section 1294, the recording of [the witness’s] statement first should have been 

introduced into evidence at the preliminary hearing. [Citation.] It was not. 

Instead, [the witness] was asked to review specific excerpts of a transcript of 

his interview with the police to see if it refreshed his recollection, and the 

prosecutor read from portions of the transcript to impeach [the witness]. [The 

detective] who questioned [the witness] also testified at the preliminary 

hearing that [the witness] had made the statements he denied making. But 

neither the transcript nor a recording of the interview was introduced as 

evidence at the preliminary hearing. Thus, while the transcript of [the 

witness’s] preliminary hearing testimony was properly admitted at trial due 

to his unavailability [citation], the court erred in allowing the jury to hear the 

actual recording of his statement to the police.” (Ibid.)
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The Attorney General acknowledges that under section 1294, 

subdivision (a)(2), the proper procedure would have been to introduce at trial

the transcript of the officers’ preliminary hearing testimony reflecting the 

prior inconsistent statements. The Attorney General correctly argues, 

however, that any error in that regard has been forfeited because defendant 

“failed to object on this ground below. Had he done so, the prosecutor would 

have presented [the victim’s] prior inconsistent statements through the 

officers’ preliminary hearing testimony. [Defendant’s] failure to object 

forfeited any reliance on this error as a basis for reversal because it deprived 

the prosecution of an ‘opportunity to cure the defect.’ (People v. Coleman

(1988) 46 Cal.3d 749, 777.)”

Accordingly, there was no reversible error regarding the admission of 

the officers’ testimony regarding the victim’s statements.

3. The matter shall be remanded for resentencing on the section 12022.5 

enhancement.

Section 12022.5, subdivision (a) punishes “any person who personally 

uses a firearm in the commission of a felony or attempted felony” with “an 

additional and consecutive term of imprisonment in the state prison for 3, 4, 

or 10 years, unless use of a firearm is an element of that offense.” Section 

12022.53, subdivision (b) punishes “any person who, in the commission of [an 

attempted murder], personally uses a firearm” with “an additional and 

consecutive term of imprisonment in the state prison for 10 years.” Section 

12022.53, subdivision (f) provides, however, that “[o]nly one additional term 

of imprisonment under this section shall be imposed per person for each 

crime” and that any enhancement involving a firearm specified in section

12022.5 “shall not be imposed on a person in addition to an enhancement 

imposed pursuant to this section.” In People v. Gonzalez (2008) 43 Cal.4th 

1118, 1130, the court explained that, “after a trial court imposes punishment 
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for the section 12022.53 firearm enhancement with the longest term of 

imprisonment, the remaining section 12022.53 firearm enhancements and 

any section 12022.5 firearm enhancements that were found true for the same 

crime must be imposed and then stayed.” As the Attorney General asserts, 

the court made clear that a stay in such circumstances was governed by 

section 12022.53, subdivision (f), not Penal Code section 654, “ ‘which applies 

only to offenses punishable in different ways, not to prohibited enhancements 

committed in the commission of an unstayed offense.’ ” (Quoting Gonzalez, 

supra, at p. 1123, fn. 5.) 

Here, the court imposed a 10-year term on the section 12022.53, 

subdivision (b) enhancement. The court stayed the section 12022.5 

enhancement under section 654 rather than selecting a term and staying 

execution under section 12022.53, subdivision (f). Defendant does not dispute 

the Attorney General’s argument that the matter should be remanded so that 

the court can select a term under section 12022.5 and then stay execution 

under section 12022.53, subdivision (f). (See People v. Bradley (1998) 64 

Cal.App.4th 386, 391 [“The failure to impose or strike an enhancement is a 

legally unauthorized sentence subject to correction for the first time on 

appeal.”].) Accordingly, we shall remand for resentencing on the section 

12022.5 enhancement. 

Disposition

The matter is remanded for resentencing on the section 12022.5 

enhancement. The judgment is otherwise affirmed.

POLLAK, P. J.

WE CONCUR:

STREETER, J.

BROWN, J.