Where the prosecution made reasonable efforts to obtain the presence of a witness at trial, it was not error to admit the witness’s preliminary hearing testimony.
Appellant was involved in an altercation with two clerks at a convenience store. After being struck repeatedly and being injured by a wooden dowel by one of the clerks, Martinez pulled a knife out of his pocket and stabbed the clerk, fatally wounding him. The jury found him guilty of second degree murder. On appeal, he contended that the trial court erred by admitting the preliminary hearing testimony of the surviving clerk without the prosecution having exercised due diligence in attempting to obtain the presence of the clerk. The prosecution found the clerk in Canada, but the clerk stated he could not testify at trial because he was seeking asylum in Canada, had no passport, and would not be allowed back in Canada if he left. Further, there was a hearing scheduled on his asylum claim on the date of appellant’s trial. The trial court allowed the preliminary hearing testimony, finding that there was no confrontation violation because the testimony had been subject to cross-examination at the preliminary hearing. The appellate court rejected appellant’s argument, finding that the prosecution made reasonable efforts to arrange for the clerk’s appearance at trial.
The trial court also properly instructed the jury on implied malice. The jury was instructed with CALCRIM No. 520 on implied malice, which told them that malice can be implied where there is an intentional act, the “natural consequences” of which are dangerous to human life. Appellant argued that the trial court had a sua sponte duty to instruct the jury on the “uncharged” or “target” offenses upon which the prosecution was relying to establish the result and prove implied malice. The appellate court rejected the argument, finding that the term “natural consequences” in CALCRIM No. 520 does not import into the crime of murder the caselaw relating to the distinct natural and probable consequences doctrine developed in the context of aiding and abetting liability. Appellant’s argument confuses two distinct concepts.