Filed 12/9/16 (unmodified opn. attached)

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 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, footnote 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 does 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 disposition paragraph is deleted and replaced with the 

following new disposition paragraph:

The judgment is affirmed. The matter is remanded to the 

trial court to correct defendant’s sentence by imposing a 
2

sentence on the pimping count (count 2), and then staying 

execution of that sentence.

These modifications do not effect 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 the 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 General, for Plaintiff and Respondent.

* * *
2

INTRODUCTION

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, after 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 recommendation of the minor’s therapist.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

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 as a stripper. The minor 

told Robinson she did not want to engage in prostitution.

A couple of days later, Robinson introduced the minor to defendant, whom

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 acts 

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-American 

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 phone,

3

and 

caused her phone number and picture to be posted on Web 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 pimps. 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 even 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 Web 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 

defendant. 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.

About 2:00 a.m. on March 1, 2013, Garden Grove Police Officer Michael 

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

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

she initially lied about her name and age. After another 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 backseat of the patrol car, 

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

the face if she “crack[ed].” From the police station, the minor was transported to the 

Orangewood Children and Family Center, from which she ran away on at least 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 account for 

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

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

advertisements 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 the 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 hotel 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 filed 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 conditional 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 priors 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 stayed 

sentencing on the pimping count, pursuant to Penal Code section 654.6

DISCUSSION

I.

THE TRIAL COURT DID NOT ERR IN RELEASING THE MINOR FROM COMMITMENT

AS A MATERIAL WITNESS.

Defendant argues that his rights to confrontation, cross-examination, and 

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

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

time of trial.

A.

Procedural Background

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

prosecution’s petition for an order committing the 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.) This 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 the 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 the 

minor to provide such an undertaking.

The prosecution moved for an order for a conditional examination of the 

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 the minor had

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

Defendant’s counsel asked that the court continue to hold the 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 

granted 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 witness required to enter into an undertaking to appear and testify, either with or 

without sureties, refuses compliance with the order for that purpose, the court may 

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

appropriate agency, until the witness complies or is legally discharged. [¶] (c) When 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 person, 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 standard 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 Court

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

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

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

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

not be unreasonably incarcerated. . . . [T]he trial court is in a better position than an

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

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

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

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

we independently apply an ‘objective, constitutionally based legal test’ to certain facts

[citation], we also give due deference to the trial court’s determination of a witness’s

flight risk, and will second-guess that determination only when it is clear from the record

that it was objectively unreasonable.” 

Further, in 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 the 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 Francisco 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 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.” (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 declarant 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 disclose 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 California 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 consistent 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.4th 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 

interests of the various parties—the prosecution, the defendant in the underlying criminal 

case, and the witness.” Those 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 ensuring the witness’s attendance. [¶] (2) The nature of the witness’s 
11

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 

proposed 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 relevant 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 witness. 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 purpose 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 factor, 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 violate 

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. There 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 his 
12

testimony to recant earlier statements allegedly given to law enforcement. 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 inconsistent 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 considered 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 the 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 the 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 specific 
13

context of this case, we do not agree that focusing on those two factors would 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 psychological 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 jurisdiction,” 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 the 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, the 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 verdict 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 

examination 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, on the 

day of the conditional examination, to reconsider his objections. When the trial court 

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

court’s going to overrule the objections without prejudice. You may make those 
14

objections more specifically before this court 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 the 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 inadvertence, 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 Froeberg. 

Defendant argues that the court erred in granting the conditional 

examination because the 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 

conditional examination while the 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 the minor for the purpose of obtaining her testimony before the 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 the minor, a 14 year old who had been the 
15

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.

THE TRIAL COURT DID NOT ERR IN ADMITTING

THE CONDITIONAL EXAMINATION.

Defendant also argues that the trial court erred by admitting the 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 the minor’s medical records; 

(2) found that the minor was unavailable to testify, pursuant to Evidence Code 

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

evidence the 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 reviewed 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 Section 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 required.” 

(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 the minor’s therapist. The therapist was 

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

explained why the therapist felt it would not be in the 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 the 

minor’s therapist. Further, the minor’s unavailability was not an issue relating to 

defendant’s guilt. The trial court did not abuse its discretion in denying defendant’s 

request under Evidence Code section 730.
17

C.

The Trial Court Did Not 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 the minor.

Defendant acknowledges that his 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-examine 

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 and 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 who 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 questioned the minor because he did not have enough preparation time.

Defendant also argues that he was prejudiced because he could have 

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

examination. In People v. Gonzales (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 testimony of the defendant’s son from the preliminary 
18

hearing was played at trial. (Id. at p. 1247.) The defendant argued 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 Court concluded that the defendant 

nevertheless had a “meaningful opportunity to cross-examine” his son (ibid.), and found 

no error (id. at pp. 1262-1263; see People v. Andrade (2015) 238 Cal.App.4th 1274, 1295 

[admission of victim’s preliminary 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, the prosecutor stated these records had been 

provided to defendant’s trial 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 minor 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 another 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

DISPOSITION

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 opinion is ordered published in the Official Reports.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

IKOLA, J.