Filed 12/ 9/ 16 (unmodif i ed opn. attached)

CERTIFIED FOR PUBLIC ATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

CHUNCEY TARAE GARCIA,

Defendant and Appellant. G050268

(Super. Ct. No. 13WF0628)

ORDER MODIFYING OPINION

AND DENYING PETITION FOR REHEARING; NO CHANGE IN

JUDGMENT

It is ordered that the opinion filed herein on October 31, 2016, be modified

as follows:

1. On page 6, f ootnote 6 is deleted and replaced with the following new

footnote 6:

6 The Attorney General argues that the case

must be remanded to allow the court to properly impose a sentence on the pimping count and then stay

execution of the sentence. Defendant doe s not object to the Attorney General’s request . We will remand the

case to the trial court to correct defendant ’ s sentence by imposing a sentence on the pimping count, and then staying execution of that sentence.

2. On page 19, the d isposition paragraph is del e ted and replaced with the

following new d isposition paragraph :

The judgment is affirmed. The matter is remanded to the

trial court to correct defendant ’ s sentence by imposing a2 sentence on the pimping count (count 2) , and then staying

execution of that sentence.

These modifications do not e ffect a change in the judgment. The petition

for rehearing is DENIED.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

IKOLA, J.Filed 10/31/ 16 ; pub. order 11/15/16 (see end of opn.) ( unmodified version)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

CHUNCEY TARAE GARCIA,

Defendant and Appellant. G050268

(Super. Ct. No. 13WF0628)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County,

Michael J. Cassidy, Judge. Affirmed.

Tonja R. Torres, under appointment by th e Court of Appeal, for Defendant

and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler , Chief Assistant

Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Alana

Butler and Meredith S. White, Deputy Attorneys Gene ral, for Plaintiff and Respondent.

* * *2 I NTRODUCTION

Defendant Chuncey Tarae Garcia was convicted of human trafficking and

pimping a minor. Defendant’s 14

- year

- old victim (the minor) did not testify at

defendant’s trial. Instead, the videotape of the minor’s conditional examination was

played for the jury. Defendant argues that his constitutional rights to confrontation

,

cross

- examination , and due process were violated. We disagree, and affirm the

judgment.

The trial court did not err in releasing the minor from commitment as a

material witness, under Penal Code section 1332, a fter permitting her conditional

examination to be taken. Further, the court did not err in determining the minor was

unavailable at trial, and in denying defendant’s request for the appointment of an expert

witness to review the minor’s records and the re commendation of the minor’s therapist.

S TATEMENT OF F ACTS AND P ROCEDURAL H ISTORY

In February 2013, the minor was 14 years old, and living in Scottsdale,

Arizona. She ran away from home , and obtained a job at a strip club by claiming she was

19 years old.

At the club, the minor met Cierra Robinson. Robinson told the minor she

could make more money working as a prostitute than she could a s a stripper . The minor

told Robinson she did not want to engage in prostitution.

A couple of days later, Robinson intr oduced the minor to defendant, who m

Robinson called Slim or King Slim. Defendant told the minor she was “stunning” and

“ beautiful, ” and he had a great opportunity for her that would involve talking to guys on

the phone . Defendant drove the minor and Robinson to a hotel.

Defendant was initially nice and sweet to the minor. Defendant gave her

alcohol and marijuana , and told her he had a money

- making opportunity for her.3

Defendant told the minor she was going to work for him as a prostitute. Defendant told

her she was not allowed to leave and could not tell anyone else. The minor was scared,

and afraid defendant would hit her. She did not try to leave because she “ was terrified. ”

Defendant gave the minor a notebook with the prices for various sex ac ts

and what to say when answering the phone. 1 Defendant told her to smile and wave at

people on the street , and that when they pulled over, she would be paid to have sex with

them. Defendant also instructed her not to look at or speak to other African

- Am erican

men, 2 and not to call defendant anything other than Daddy or Pimpin. Defendant told the

minor that if she violated the rules, she would be “ in trouble ” and defendant would hit

her.

While still in Arizona, defendant provided the minor with a cell ph one, 3 and

caused her phone number and picture to be posted on W eb sites. 4 She received calls in

response to the online advertisements, but avoided the offers to engage in sex for money

by telling defendant that the callers were African

- American men or pim ps. She was

afraid of defendant, and had seen him hit Robinson

. The minor never tried to use her cell

phone to call the police, and e ven when defendant left her alone with Baby, another girl

working for defendant as a prostitute, the minor did not try to leave or to ask someone for

help.

Two or three days after the minor met defendant, they drove to California

with Robinson and Baby. The minor did not want to work as a prostitute, but she was

afraid and felt as if she had no choice. She consumed alcohol and smoked marijuana

purchased by defendant.

1 Pages from the notebook were admitted at trial as exhibit No. 2.

2 Defendant is African

- American.

3 A photograph of the cell phone was admitted at trial as exhibit No. 3.

4 The W eb site postings were admitted at trial as exhibit No. 4.4 The minor worked as a prostitute while in Orange County. She walked the

streets within boundaries set by defendant so he would know where she was. She was

required to regularly check in with defendant, and to text defendant when she had a

customer and when she was done

. The minor sometimes took her customers to a hotel

room paid for by defendant , and sometimes had her “dates” in a car

.

The minor gave all the money she earned by working as a prostitute to

defe ndant. Each of the girls was expected to earn $200 per day; if she did not, she would

not be allowed to eat dinner.

On two occasions, the minor had sex with defendant. Although she did not

want to do so, she was too scared to tell him no or stop it from happening.

A bou t 2:00 a.m. on March 1, 2013, Garden Grove P olice O fficer Michael

Viscomi stopped the car that defendant was driving. The minor was in the back seat

behind the driver ’ s seat. Viscomi noticed that the minor appeared very young, although

she initially lied about her name and age. After an other officer moved the minor away

from defendant , Robinson, and Baby, the minor gave the officer her mother ’ s name and

phone number.

The minor was arrested. She began to cry in the back seat of the patrol car,

and told Viscomi she lied to him because defendant had told her that h e would hit her in

the face if she “ crack [ ed ]

. ” From the police station, t he minor was transported to the

O rangewood Children and Family Center , from which she ran away on at leas t two

occasions.

Defendant told the police he went by the name “ Slim. ” When stopped by

Viscomi, defendant had $353 in cash; none of the girls had any money. In the hotel room

that defendant was renting, the police found a laptop computer with a user acco unt for

“ King Slim, the Boss. ” The computer also had a file containing 19 photo graph s of the

minor in sexually suggestive poses. In its browsing history, t he computer had the online

ad vertisement s featuring the minor.5 Viscomi questioned defendant after he had been stopped. Defendant said

he was in California to take care of his traffic tickets , to visit his children in Los Angeles,

and to return to caring for his grandmother. Defendant told Viscomi he had met the

minor through Robinson, who was working with her at a strip club. Defendant also

stated t he minor had told him she was 19 years old, and he thought she must be because

she could not otherwise have worked in a strip club. Defendant was suspicious because

the minor spoke and acted younger , but she continued to tell him she was 19 years old

.

Defendant admitted paying for the h otel rooms, and paying for the minor ’ s

cell phone. Defendant denied knowing anyone was engaged in prostitution, or getting

money from the minor. Defendant denied forcing the minor to do anything she did not

want to do, and denied that she gave him any money over the last few days

.

On April 30, 2013, a petition for commitment of the minor

, pursuant to

Penal Code section 1332

, was file d under seal. The requested order was signed and filed

under seal on the same day. The minor was held in custody at juvenile hall. On May 2,

the prosecutor filed a motion for conditional examination of a material witness, which

was granted. The conditio nal examination was conducted on May 17. At the conclusion

of the conditional examination, the section 1332 hold was lifted, and the minor was

ordered to return to court on June 20, which was the date then scheduled for trial.

At the request of defendant, the trial was continued multiple times, and a

jury was ultimately sworn in on March 3, 2014. The minor did not appear to testify at

trial. The trial court found the minor was unavailable as a witness, and a videotape of her

testimony from the conditional examination was played for the jury.

At trial, the prosecution offered the testimony of an expert witness

regarding pimping and human trafficking. The expert’s testimony was consistent with

the story the minor had told.

Defendant was convicted of human trafficking of a minor (Pen. Code,

§ 236.1, subd. (c) (1) ), and pimping a minor under 16 years of age ( id. , § 266h,6

subd. (b)(2)). The jury found true that the human trafficking was accomplished by means

of force or fear. ( Id. , § 236.1, subd. (c)(2).) 5 Defendant admitted the truth of allegations

of two prison prior s under Penal Code section 667.5, subdivision (b).

The trial court sentenced defendant to 17 years to life: 15 years to life for

the human trafficking offense

, and one year for each prison prior. The court s tayed

sentenc ing on the pimping count, pursuant to Penal Code section 654. 6

D ISCUSSION

I.

T HE T RIAL C OURT D ID N

OT E RR IN R ELEASING T

HE M INOR F ROM C OMMITMENT

AS A M ATERIAL W

ITNESS

.

Defendant argues that his rights to confrontation, cross

- examination, and

due process were violated because the trial court ordered a conditional examination of t he

minor , rather than continuing to detain her pursuant to Penal Code section 1332 until the

t ime of trial.

A.

Procedural Background

Shortly after defendant ’ s preliminary hearing, the trial court granted the

prosecution ’ s petition f

o r an order committing t he minor pursuant to Penal Code

5 The jury was unable to reach a verdict on a third count of forcible rape. The trial court declared a mistrial, and then granted the prosecution’s motion to dismiss

that count.

6 The Attorney General argues that the case must be remanded to allow the court to properly impose a sentence on the pimping count and then stay execution of the

sentence. The Attorney General did not file a cross

- appeal, and therefore cannot now claim error in connection with defendant’s appeal. (Code Civ. Proc., § 906; Estate of

Powell (2000) 83 Cal.App.4th 1434, 1439; Building Industry Assn. v. City of Oceanside (1994) 27 Cal.App.4th 744, 758, fn. 9.) T his determination is without prejudice to a proper request to the trial court for a correction of the sentence after the remittitur issues.7

section 1332. 7 The court found t he minor to be a material witness, who would not return

to testify at trial unless an undertaking was provided , and that it was impossible for t he

minor to provide such an undertaking.

The prosecution moved for an order for a conditional examination of t he

minor

. “ When a material witness for the defendant, or for the people, is about to leave

the state

, . . . the defendant or the people may apply for an order that the witness be

examined conditionally. ” (Pen. Code, § 1336, subd. (a).) Counsel for t he minor had

advised the trial court of the desire to have t he minor “ released as quickly as possible. ”

Defendant ’ s counsel asked that the court continue to hold t he minor pursuant to Penal

Code section 1332, rather than conduct a conditional examination. Counsel argued that

he could not adequately prepare for a conditional examination in the time provided by the

court, which would deprive defendant of his right of cross

- examination. The court

g ranted the order for a conditional examination, which was scheduled for 10 days after

the hearing

.

7 In relevant part, Penal Code section 1332 provides: “ (a)

. . . [W] hen the court is satisfied, by proof on oath, that there is good cause to believe that any material witness for the prosecution or defense, whether the witness is an adult or a minor, will not appear and testify unless security is required, at any proceeding in connection with any criminal prosecution

. . . , the court may order the witness to enter into a written undertaking to the effect that he or she will appear and testify at the time and place ordered by the court or that he or she will forfeit an amount the court deems proper. [¶] (b) If the wi tness required to enter into an undertaking to appear and testify, either with or without sureties, refuses compliance with the order for that purpose, th e court may commit the witness,

. . . if a minor, to the custody of the probation officer or other

app ropriate agency, until the witness complies or is legally discharged. [¶] (c) W hen a person is committed pursuant to this section, he or she is entitled to an automatic review of the order requiring a written undertaking and the order committing the perso n, by a judge or magistrate having jurisdiction over the offense other than the one who issued the

order. This review shall be held not later than two days from the time of the original

order of commitment. [¶] (d) If it is determined that the witness must remain in custody, the witness is entitled to a review of that order after 10 days. ” (Pen. Code, § 1332,

subds. (a)

- (d).)8 B.

Standard of Review

Neither party addresses the standard of review we should apply in this case.

We have found no published case setting forth the stand ard of review for an order

releasing a material witness from commitment pursuant to Penal Code section 1332. We

believe, based on analogous issues in other cases
, that the order should be reviewed for

abuse of discretion.

In People v. Bunyard (2009) 45 Cal.4th 836, 851, the Supreme C ourt

concluded that the trial court ’ s decision to release a material witness on his or her own

recognizance sh ould be reviewed for abuse of discretion: “ [T] he decision to keep a

material witness in custody involve s balancing that right [of confrontation] against the

substantial due process right of the witness, who has not been charged with a crime, to

no t be unreasonably incarcerated.

. . . [T] he trial court is in a better position than an

appellate court to ascer tain whether and to what extent a witness is a flight risk, and the

appropriate measures to reduce that risk. This determination involves in par t an

observation of the witness ’ s credibility and demeanor that the trial court is uniquely in a

position to ma ke. Therefore, although we conduct independent review in the sense that

we independently apply an ‘ objective, constitutionally based legal t est ’ to certain facts

[citation]

, we also give d ue deference to the trial court ’ s determination of a witness ’ s

flig ht risk, and will second

- guess that determination only when it is clear from the record

that it was objectively unreasonable. ”

Further

, i n In re Francisco M. (2001) 86 Cal.App.4th 1061, 1079, the

appellate court held that the trial court has discretion to determine whether to require a

witness to post security under Penal Code section 1332 to secure his or her attendance at

trial. Because t he trial court must consider the same factors when any detention is

reviewed two days later, and then every 10 days thereafter ( Pen. Code, § 1332, subds. (c),9

(d); In re Francisco M.

, supra , at p. 1079)

, the abuse of discretion standard should also

apply to the trial court ’ s “ consider[ation of] any relevant changes in circumstances in

determining whether to continue the detention, including whether the witness credibly

has changed his attitude toward appearing at trial, or toward accepting a lesser, feasible

alternative to custody ” ( In re Fr ancisco M.

, supra , at p. 1079)

.

C.

Analysis

We begin our analysis by reviewing the basic constitutional principles at

issue. “ The confrontation clauses of both the federal and state Constitutions guarantee a

criminal defendant the right to confront the prosecution ’ s witnesses. [Citations.] 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 testimon y 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. ” ( People v. Cromer (2001) 24 Cal.4th 889, 892; see Crawford v.

Washington (2004) 541 U.S. 36, 53

- 54.)

Evidence Code section 1291, subdivision (a) creates an exception to the

confrontation right for prior recorded testimony: “ Evidence of former testimony is not

made inadmissible by the hearsay rule if the declarant is unavailable as a witness and:

[¶]

. . . [¶] (2) The 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 declara nt with an interest and motive similar to that which he has at

the hearing. ” (Evid. Code, § 1291, subd. (a)(2).) A witness is unavailable if he or she is

“ [a]bsent from the hearing and the court is unable to compel his or her attendance by its

process. ” (Evid. Code, § 240, subd. (a)(4).)10 The decision to detain a material witness involves weighing important

competing rights. “ Article I, section 10 of the California Constitution guarantees

‘ [w]itnesses may not be unreasonably detained. ’ This constitutional protection is

balanced against ‘“ [t]he duty [of all citizens] to di sclose knowledge of [a] crime

. . . . ” ’

[Citation.] This duty is considered to be ‘“ so vital that one known to be an innocent may

be detained, in the absence of bail, as a material witness. [Citations.] ” ’ [Citation.] [¶]

To enforce this duty, [Penal Code] section 1332 allows for the incarceration of a person

determined to be a material witness to secure his or her presence at trial. ” ( In re D. W

.
(2004) 123 Cal.App.4th 491, 497

- 498.)

“ The unique posture of the material witness counsels special concern that

the procedures leading to the determination whether he should be detained are fair.

Certainly the witness ’ s right under article I, section 10 [of the Cali fornia Constitution]

,

not to be ‘ unreasonably detained, ’ requires procedural safeguards allowing the interests

of the witness to be heard in conjunction with the interests of the state. Further, the

question whether and how long to detain a witness consis tent with this right cannot be

determined according to mechanical rules. As with the scope of other constitutional

provisions, the decision must be based on all the relevant circumstances of the particular

case. ” ( In re Francisco M.

, supra , 86 Cal.App. 4t h at pp. 1075

- 1076

. ) The unjustified

deprivation of a material witness ’ s liberty is a violation of the due process clauses of the

federal and state Constitutions. ( In re D. W.

, supra , 123 Cal.App.4th at p. 498.)

In In re Francisco M.

, supra , 86 Cal.App.4th at page 1076, the appellate

court identified a nonexclusive list of factors for the trial court to consider in deciding

whether to detain a material witness pursuant to Penal Code section 1332, to protect “ the

in terests of the various parties

— the prosecution, the defendant in the underlying criminal

case, and the witness. ” Tho se factors are as follows : “ (1) The nature of the charges in

the underlying criminal prosecution. The more serious the charges, the weightier the

state ’ s interest in en suring the witness ’ s attendance. [¶] (2) The nature of the witness ’ s11

proposed testimony.

. . . To the extent possible, the court should consider the importance

of the individual witness to the prosecution case. [Citation.] [¶] (3) The length of the

prop osed detention. It is true that a ‘ [d]etention is not unreasonable .

. . merely because it

may be prolonged. ’ [Citation.] However, the longer the expected detention, the greater

the showing required by the state to justify it.

. . . [¶] (4) Evidence rel evant to whether the

witness will or will not appear and testify. Such considerations may include

employment, residence, and other community ties. It may also include the witness ’ s prior

statements and conduct.

. . . [¶] (5) The age and maturity of the w itness. Detention of a

minor witness requires greater scrutiny than that of an adult.

. . . [¶] (6) The harm to the

witness and his family flowing from incarceration.

. . . There are perhaps countless ways

incarceration may affect the witness. The purpos e of detention is not to punish for a prior

unwillingness to cooperate, though certainly the extent of unwillingness is an appropriate

factor to consider, but to ensure that the witness will be present at trial. Punishment of

the witness not being a facto r, the prejudice to the witness and his family must be

considered. [¶] (7) The witness ’ s financial resources. Should security be required, the

amount must be reasonable, calculated to secure the witness ’ s appearance at trial.

. . . [¶]

(8) The circumstances of any continuance of the underlying prosecution that will prolong

the incarceration.

. . . As indicated by Ex Parte Dressler [(1885)] 67 Cal. 257, prolonging

a detention by a continuance of the trial without adequate cause might in itself vi olate

article I, section 10 of the California Constitution. [¶] (9) Whether steps short of

incarceration are feasible and adequate to protect the interests of the prosecution, the

witness, and the defendant in the underlying prosecution.

. . . [T] he court may consider

whether circumstances exist in which a conditional examination may be held under

[Penal Code] section 1335 et seq. It may well be that, because of currently existing rules,

resorting to a conditional examination will prove problematic. Ther e must first be an

adequate showing justifying a conditional examination under [Penal Code] sections 1335

and 1336. Also, in many instances, a detained material witness can be expected in his12

testimony to recant earlier statements allegedly given to law e nforcement. If a

conditional examination is conducted, only the witness would testify. With respect to use

of the conditional examination at trial, the witness would be a hearsay declarant. If the

witness, upon being confronted with the prior inconsiste nt statements at the conditional

examination, adopted and reaffirmed them, the jury at the trial could consider the

statements for their truth. [Citation.] However, if the witness denied the prior

statements, any such statements later introduced at trial could be considered only as

relevant to impeach the witness as a hearsay declarant. [Citation.] The statements could

not be used to prove the truth of the matter asserted in the statements. [Citations.] Since

the inconsistent statements could not be co nsidered to prove the guilt or innocence of the

accused, use of a conditional examination may be inadequate to serve the interests of

justice. The problem might be resolved if the Legislature were to amend the Evidence

Code to permit a detained witness ’ s prior inconsistent statements to be considered for

their truth at trial, assuming the witness was properly confronted with them at the

conditional examination under Evidence Code section 770, subdivision (a). ” ( In re

Francisco M.

, supra , at pp. 1076

- 1079, fns. omitted.) The trial court must consider, at

the two

- day review hearing, and then at a hearing every 10 days thereafter, whether,

because of “ any relevant change in circumstances, ” the detention should be continued,

ended, or revised. ( Id. at p. 1079.)

In this case, the trial court fully considered all relevant factors in deciding

to commit t he minor , and then to release her from Penal Code section 1332 commitment

and order a conditional examination. The court did not abuse its discretion, and we

therefore affirm the order releasing t he minor from commitment.

Defendant contends the list of factors set forth in In re Francisco M. is not

the proper test. Rather, defendant suggests that in People v. Bunyard

, supra , 45 Cal.4th

at pages 851 and 854, the court focused only on the length of the witness’s detention and

whether the witness had a strong incentive to flee. When considered within the specific13

context of this case, we do not agree that focusing on those two factors woul d require

reversal. First, while it is true that at the time of the conditional examination

, the minor

had only been subject to commitment for 17 days, we do not agree that this is a

de minimis time, in light of the minor’s young age and need for psycholo gical treatment.

Further, if we were to look at the time the trial actually started, the minor would have

been subject to commitment for more than 10 months. Second, the entire point of the

conditional examination was to allow the minor to “flee the juri sdiction ,” in the sense that

she would be returning to her home in Arizona to obtain necessary therapy and treatment.

Defendant cites People v. Roldan (2012) 205 Cal.App.4th 969, 981, for the

proposition that t he minor ’ s rights would not have been violated by a 60

- day commitment

pursuant to Penal Code section 1332. We believe that case is distinguishable. After one

of the victims of a shooting testified at the defendant ’ s preliminary hearing, t he victim

was released to the federal authorities and deported to Mexico. ( People v. Roldan

, supra ,

at p. 976.) The trial court permitted the preliminary hearing testimony to be read to the

jury, based on the court’s finding that the victim was unavailable. ( Id. at pp. 977

- 978.)

This court reversed the guilty ver dict because the prosecution had failed its duty to “‘“ use

reasonable means to prevent a present witness from becoming absent

. ” [Citation.] If the

prosecution fails in this latter duty, it does not satisfy the requirement of due diligence.

[Citation.] ’ [Citations.] ” ( Id. at p. 980.) Significantly , one of the specific ways this court

found would have satisfied the duty to protect the defendant ’ s right to confrontation was

to videotape the victim ’ s preliminary hearing testimony; here, the conditional

ex amination was videotaped under the same statutory guidelines as were mentioned in

the People v. Roldan case . ( Id. at pp. 980

- 981; see Pen. Code

, §§ 1335

- 1345.)

Defendant argues that he was prejudiced by the trial court ’ s refusal

, o n the

day of the conditi onal examination, to reconsider his objection s . When the trial court

granted the order for a conditional examination, Judge Gregg L. Prickett stated : “ The

c ourt ’ s going to overrule the objections without prejudice. You may make those14

objections more spe cifically before this c ourt on that Friday. It will be the first matter I

call that Friday morning. I will be holding a courtroom, but I am not going to require

another person to get up to speed on the unique specifics of what ’ s going on here. ” On

the day of the conditional examination, however, Judge William R. Froeberg refused to

consider defendant ’ s renewed objections to the examination. The power of one judge to

vacate an order made by another judge is strictly limited, so as to “ ensure th e orderly

administration of justice. ” ( In re Alberto (2002) 102 Cal.App.4th 421, 427.) The two

grounds authorizing one judge to reconsider the order of another judge

— where the first

judge is unavailable, and where the first order was made through inadver tence, mistake,

or fraud ( id. at p. 430)

— have not been proven here. Moreover, defendant fails to show

that anything had changed between the time that Judge Prickett ordered the conditional

examination, and the time the examination commenced before Judge F roeberg.

Defendant argues that the court erred in granting the conditional

examination because t he minor was not “ about to leave the state, ” as provided by Penal

Code section 1336 , subdivision (a) . Because the court entered the order granting the

condit ional examination while t he minor was committed to the juvenile hall pursuant to

Penal Code section 1332, defendant argues the conditional examination order was

invalid. Defendant ’ s argument would prevent a court from ever releasing a witness in

favor of that witness ’ s testimony by means of a conditional examination, no matter how

long the commitment lasted.

We reject defendant ’ s argument that the prosecution sought a conditional

examination of t he minor for the purpose of obtaining her testimony before th e defense

had adequate time to prepare, or in violation of Penal Code section 1341, which

authorizes the trial court to deny a request for conditional examination if it is sought “ to

avoid the examination of the witness at the trial. ” Defendant offers no evidence

supporting this argument. To the contrary, there is ample evidence that the prosecution

sought the conditional examination so that t he minor , a 14 year old who had been the15

victim of a sex crime, could be returned to her home to receive necessary therapy, rather

than housed in juvenile hall where necessary services were unavailable.

II.

T HE T RIAL C OURT D ID N

OT E RR IN A DMITTING

T HE C ONDITIONAL E

XAMINATION

. Defendant also argues that the trial court erred by admitting t he minor ’ s

testimony from the conditional examination at trial. At a hearing at the start of trial, the

court (1) denied defendant ’ s motion under Evidence Code section 730 for the

appointment of a psychiatrist or psychologist to review t he minor ’ s medical records;

(2) found that t he minor was unavailable to testify, pu rsuant to Evidence Code

section 240, subdivision (a)(3); and (3) granted the prosecution ’ s motion to allow into

evidence t he minor ’ s conditional examination testimony. 8

A.

Standard of Review

The trial court ’ s order on a motion to allow a conditional examination to be

admitted at trial is review ed for abuse of discretion. ( People v. Jurado (2006) 38 Cal.4th

72, 114; People v. Cadogan (2009) 173 Cal.App.4th 1502, 1512

- 1513.)

B

. Refusal to Appoint Expert Pursuant to Evidence Code S ection 730

“ When it appears to the court, at any time before or during the trial of an

action, that expert evidence is or may be required

. . . by any party to the action, the court

. . . on motion of any party may appoint one or more experts to investigate, to render a

8 The transcript of the hearing was sealed. This opinion will only summarize the testimony and arguments of counsel.16

report as may be ordered by the court, and to testify as an expert at the trial of the action

relative to the fact or matter as to which the expert evidence is or may be req uired. ”

(Evid. Code, § 730.) We review the trial court ’ s refusal to appoint an expert for

defendant for abuse of discretion. ( People v. Hajek and Vo (2014) 58 Cal.4th 1144,

1255.)

“ Evidence Code section 730 provides for appointment of ancillary services

at public expense for indigent criminal defendants in noncapital cases only for purposes

of defense at trial on the issue of guilt. ” ( People v. Stuckey (2009) 175 Cal.App.4th 898,

908.) “ The ability to prepare a defense to criminal charges is the touchstone of the right

to appointment of defense experts. A trial court must appoint an expert for a defendant

when necessary to address what is ‘ likely to be a significant factor at trial

. ’ [Citation.]

Thus, the test for constitutional entitlement to appointment of defense experts focuses on

whether a defendant requires assistance on an issue relating to guilt. Except for the

penalty phase of capital cases, entitlement to defense experts is a right to prepare a

defense to the criminal charges. ” ( Id. at p. 915.)

Defendant sought the appointment of an expert psychiatrist or psychologist

to assist in the review of the records provided by t he minor ’ s therapist. The therapist was

neither a ps ychologist nor a psychiatrist. The therapist ’ s written report and testimony

explained why the therapist felt it would not be in t he minor ’ s best interests to travel to

California to testify at defendant ’ s trial. Defendant offered no evidence that the

assistance of an expert witness was necessary to review and interpret the opinions of t he

minor ’ s therapist. Further, t he minor ’ s unavailability wa s not an issue relating to

defendant ’ s guilt. The trial court did no t abuse its discretion in denying defendant ’ s

request under Evidence Code section 730.17 C.

The Trial Court D id N

ot Err in Admitting the Conditional Examination at Trial.

Defendant claims he was prejudiced by the admission of the conditional

examination for two reasons: (1) defendant ’ s counsel did not have enough time to

prepare for the examination, and (2) materials obtained after the conditional examination

was taken could have been used to cross

- examine or impeach t he minor

.

Defendant acknowledges that h is right of confrontation is not absolute.

( Chambers v. Mississippi (1973) 410 U.S. 284, 295; People v. Valencia (2008) 43 Cal.4th

268, 291.) If a witness is unavailable at trial, his or her former testimony may be

admissible if the party against whom it is offered was a party to the action in which the

former testimony was given , and he or she was given the opportunity to cross

- exami ne

the witness with an interest and motive similar to that which he or she has at the current

hearing. (Evid. Code, § 1291 , subd. (a)(2); People v. Smith (2003) 30 Cal.4th 581, 611.)

Defendant ’ s counsel objected to the time provided to prepare for the

conditional examination. Defendant ’ s counsel had just recently been appointed, and was

given 10 days to review between 500 an d 600 pages of discovery before the conditional

examination. However, before setting the date for the conditional examination, the trial

court had confirmed that defendant ’ s counsel had no other commitments. Also, at that

point

, there was a codefendant w ho had separate counsel. Defendant does not argue on

appeal that his counsel did not have time to review the then

- existing discovery, nor does

defendant identify any areas of investigation he was not able to pursue or issues on which

he could not have que stioned the minor because he did not have enough preparation time.

Defendant also argues that he was prejudi ced because he could have

cross

- examined or impeached the minor with material discovered after the conditional

examination. In People v. Gonzale s ( 2012) 54 Cal.4th 1234, 1261 , the defendant’s son

was determined to be unavailable to testify at trial because of the trauma he would suffer

as a result. The videotaped te stimony of the defendant’s son from the preliminary18

hearing was played at trial. ( Id. at p. 1247.) The defendant argue d his right to

cross

- examination was violated because his son’s therapy records, with which he could

have been cross

- examined or impeached, were not made available until after the

preliminary hearing. ( Id. at p. 1262.) The Supreme C ourt concluded that the defendant

nevertheless had a “meaningful opportunity to cross

- examine” his son ( ibid. ) , and found

no error ( i d. at pp. 1262

- 1263; see People v. Andrade (2015) 238 Cal.App.4th 1274, 1295

[admission of victim’s prelimin ary hearing testimony was proper, although the

defendant’s counsel did not have the victim’s written statement to the police at the

preliminary hearing] )

.

Defendant identifies three evidentiary items he learned of after the

conditional examination , which he could have used to cross

- examine or impeach the

minor at trial. The first is records from the Arizona juvenile authorities. However, at the

hearing on the minor’s unavailability, t he prosecutor stated these records had been

provided to defendant’s tr ial counsel before the conditional examination, a fact defendant

does not dispute.

The second evidentiary item at issue is the results of DNA testing on

feminine hygiene materials found in the minor’s underwear. These results revealed that

neither the min or nor defendant could be excluded as contributors, and would have no

apparent impact on the minor’s credibility.

Finally, defendant complains that he did not have access to the minor’s

medical records, in which the minor told someone she had been held in a basement for

three days before being transported to California. It appears from the appellate record

that it was unclear whether the minor’s comments were in connection with the current

incident involving defendant, or a previous incident involving anot her perpetrator. Thus,

the documents would have had little or no evidentiary value, even if defendant’s counsel

might have questioned the minor about them.19 D ISPOSITION

The judgment is affirmed.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

IKOLA, J.Filed 11/15/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

CHUNCEY TARAE GARCIA,

Defendant and Appellant. G050268

(Super. Ct. No. 13WF0628)

ORDER GRANTING REQUEST

FOR PUBLICATION

The Orange County District Attorney has requested that our opinion, filed

on October 31, 2016, be certified for publication. It appears that our opinion meets the

standards set forth in California Rules of Court, rule 8.1105(c)(1), (2), (6), (7), and (8).

The request is GRANTED. The opin ion is ordered published in the Official Reports.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

IKOLA, J.