Filed 9/2/26 P. v. Davenport CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B342717
Plaintiff and Respondent, (Los Angeles County Super. Ct. No. 24CJCF00048)
v.
TYRELL DAVENPORT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Larry Fidler, Judge. Affirmed.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
A jury convicted Tyrell Davenport of human trafficking, pimping, and pandering multiple victims, including Aaliyah M. Below, the trial court found that Aaliyah was unavailable to testify at trial and admitted her prior preliminary hearing testimony and recorded statements Aaliyah made to law enforcement officers. On appeal, Davenport contends that the trial court violated his confrontation rights by admitting this evidence. We reject this contention and affirm the judgment.
BACKGROUND
I. Evidence at trial Davenport was charged with crimes involving four victims:
Aaliyah M., Mackenzie S., Grace E., and Gillian B.1 At trial, the prosecutor introduced expert testimony about the subculture of pimping and human trafficking, Aaliyah’s preliminary hearing testimony, and the testimony of law enforcement officers.
A. Expert testimony about the pimping subculture The pimping and pandering subculture is referred to as “the game” and uses terms of art. “Tricks” or “johns” are buyers of sex work; sex workers are “toes,” “hoe[s],” “bitch[es],” “wifey,” “the team,” or a “stable”; and traffickers and pimps are “king[s],” “daddy,” “papa,” and “papy.”2 A “date” is negotiating and completing a commercial sex act. “Smash” refers to sexual intercourse or to inflicting punishment. A “track star” is a high earning sex worker.
1 Davenport seeks reversal of only counts involving Aaliyah.
2 Although an expert differentiated between pimps and traffickers based on whether they use force, we use the terms interchangeably.
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Commercial sex work commonly occurs in the Figueroa corridor, on G Street in San Bernardino, Holt in Pomona, and Beach and Ball Roads in Anaheim. The area where sex workers solicit customers is called the “blade,” the “track,” and “a stroll.”
Sex workers “ ‘choose up’ ” their pimps, agreeing to come under the pimp’s management and supervision, a process also called “ ‘come home.’ ” They also commonly pay a “choose-up fee” to the pimp to come under the pimp’s management.
A pimp sets the rules of the game for sex workers, who are punished for violating rules. Punishments include being made to stay on the track to make more money, sleep and food deprivation, public embarrassment, and public beatings. Sex workers are not free to leave, and attempts to do so can be met with these punishments. A sex worker who breaks the rules is a “ ‘fag’ ” or “ ‘faggot.’ ”
Money and loyalty are the two most important things to pimps. Thus, a “bottom bitch” is the pimp’s most trusted or tenured sex worker and may supervise and train other sex workers.
A pimp controls all aspects of sex workers’ lives, including whether they can go to a store or buy a drink. Pimps supply their sex workers with a specific number of condoms, both for safety reasons and to account for how many customers the worker sees. Sex workers turn over all earnings to their pimp or trafficker, and withholding earnings is “tucking.”
To reinforce the notion that sex workers are commodities, pimps “brand” them by tattooing a symbol on a visible part of their body. Common symbols are “P” for pimp, a crown, and 16, as the 16th letter of the alphabet is P.
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Megapersonals, Listcrawler, and Backpagepro are Internet sites that advertise commercial sex work.
B. Aaliyah (counts 1–3) After the trial court found Aaliyah unavailable to testify in person at trial, her prior testimony at the preliminary hearing was introduced. Law enforcement officers then testified about their encounters with Aaliyah and Davenport.
1. Aaliyah’s preliminary hearing testimony Aaliyah first met Davenport in November 2018, while she was working for a different pimp in Las Vegas. She left her pimp to work for Davenport in California. Aaliyah called Davenport “IBN”—“It’s Better Now”—and “Daddy.” Davenport bought a phone for Aaliyah to arrange dates or to post ads on the Internet. Davenport took Aaliyah’s EBT card.
The first night that Aaliyah worked for Davenport, they discussed what she should charge tricks. That first night, he drove her to Figueroa, and she had around five dates. She charged $60 for a blow job and $80 for sexual intercourse. After each trick or earning a certain amount, she gave the money to Davenport, because that was the “rule,” “you’re always supposed to give the pimp the money. You’re not supposed to carry no money.” Davenport never gave her any money. Instead, he bought her “hoe clothes” and paid for her motel room and to get her hair done.
Aaliyah worked every day for Davenport until December 2018. Davenport set her “trap” goal at $500 per night, but he
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increased it to $700 when Aaliyah became his sole worker.3 During this time, she stayed at the Gardena Motel, paid for by Davenport. Aaliyah mostly worked the blades on Figueroa and in Pomona, Long Beach, Alameda, and Orange County. But she also got work from ads either she or Davenport posted on Megapersonals and Backpagepro. When she received work from Internet ads, she worked her “in-calls” at the motel room or Davenport drove her to “out-calls.” When she worked the blades, Davenport always drove her. On one date, a trick dragged Aaliyah out of his car and beat her.
Davenport hit Aaliyah almost every day because she had an “attitude” or was “out-of-pocket.” On her birthday in December 2018, Davenport hit Aaliyah while they were in his car. He then drove her to the blade to work. After she finished working, they had sex although Aaliyah did not want to. As a birthday gift for Aaliyah, Davenport had her get tattoos of a crown with 16 inside it and IBN on her face. Aaliyah said both that Davenport forced her to get the tattoos and she wanted to be his “bottom bitch.”
Aaliyah identified a photograph of herself with Davenport, who was making “the pimp sign”—similar to the peace sign— with his hands. She also identified a telephone number on an ad featuring her as “IBN[‘s].”
2. Law enforcement officers’ testimony Officers testified about their encounters with Aaliyah. On December 16, 2018, Officer Keleigh Edwards was in the Figueroa corridor, where she saw Aaliyah dressed in lingerie standing on
3 For a week or so, another sex worker, an Asian girl, stayed with Aaliyah at the motel.
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the roadway with other girls. Aaliyah ran when she saw the officer, who found Aaliyah hiding in a truck bed. Aaliyah had three condoms in her bra.
The officer’s body cam recorded the encounter between the officer and Aaliyah, and it was played for the jury. Aaliyah said her pimp, whom she called IBN or Tyrell, had driven her to the location. She had been trying to get away from him, but he branded her, “so … I don’t know.” Aaliyah said she did not want to report him, she just wanted to go home and get out of the game. She was staying at a motel in Gardena, and her pimp would drop her off but not stay with her.
Back at the police station, Aaliyah gave additional recorded statements to Officer Edwards. She said she met IBN, which stood for It’s Better Now, in Las Vegas. His first name was Tyrell. He forced her to have sex with him if she made more than $500, and beat her if she made no money or talked back to him.
Aaliyah was cited for prostitution and taken to a shelter. But three days later, on December 19, 2018, at about 3:00 a.m., officers saw Aaliyah get out of car driven by Davenport, who then parked in a lot two blocks away. The parking lot was a common hang out area for pimps who were monitoring their sex workers. Aaliyah asked an undercover officer what he wanted and quoted him $40 for a blow job. The undercover officer asked if she “does sex,” and Aaliyah grabbed his groin and said it was $80. The undercover officer then signaled to his fellow officers to detain Aaliyah.
After she was detained, Aaliyah gave another recorded statement to the police. She repeated that her pimp’s name was IBN, which stood for It’s Better Now. She said she met Davenport in Las Vegas while she was working for another pimp.
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Davenport said he would treat her better, and he was chill and laid back. She went to Los Angeles with Davenport and started working on Figueroa and in Orange County and Pomona. At first, an Asian girl was also working for Davenport, but she left. When Aaliyah did not meet her $500 quota, Davenport would make her stay out until 5:00 or 6:00 a.m. He set up on-line dates for her as well. Davenport would also beat her. Once, a trick pulled a knife on her, and when Aaliyah called Davenport for help, he didn’t respond. When he finally arrived, Aaliyah was mad, and Davenport slapped and choked her for being “out-ofpocket .” From that day on, he slapped her every day. He would tell her she had three days to shape up or he would beat her.
Aaliyah gave her cellphone number to investigators, and it was the same number on an ad offering Aaliyah’s sex services. An ad with Aaliyah’s photograph stated: “The right pick is me, as you can see . . . I’m everything you could imagine & more so when your [sic] done wasting your time with those boring girls give me a call so I can show you just how I’m different [emojis] No Rush [emoji] I love clean and respectful gentleman.” Another ad said, “ ‘I’m here to please you in ways you’ve never felt before, make you feel like the man that you are. I’m ready to moan to your every stroke and show you a good time. So why wait? Let’s play. $100 special. 15 minutes, $60. 30 minutes, $80.’ ”
Aaliyah’s phone had 500 calls to or from a contact listed as “Daddy.” Daddy’s phone number was the same number on ads featuring Aaliyah. In some texts, Aaliyah also referred to Daddy as IBN and Tyrell. And at the preliminary hearing, Aaliyah testified that the phone number belonged to IBN.
Other data extracted from Aaliyah’s cellphone included message threads with Daddy: for example, Aaliyah saying she
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was on a “date” who was “going to give me 100 to go to his house is that fine with you,” and Daddy replying, “Yeah”; Aaliyah reporting she was on an $80 date, a $50 “date for head,” and a $100 date; Aaliyah saying she had a $100 date and giving Daddy the motel address where she would be; Aaliyah asking, “U gonna chop me?” and Daddy replying not to “come back broke”; Aaliyah apologizing for making only $200 “last night”; Daddy telling her to get dressed to “hit this blade”; and Aaliyah saying “he wanna do 60 now and $120 later,” and Daddy’s reply, “ ‘tell him $100 now and $100 later.’ ”
In other threads, Aaliyah texted that she was not “making shit” and was tired, but Daddy said, “u better get some money” and “That faggot shit u got going on.” Aaliyah said, “either you let me go back to the room or im falling asleep somewhere around here Tyrell.” Aaliyah told him that he “shouldn’t have spent the money I be giving you and learn how to save for shitty days like this.” Daddy replied, “Bitch u better ztop [sic] saying my name,” and that he had been driving back and forth “feeding yo dum [sic] ass.” Aaliyah responded, that he wasn’t feeding her or “doing shit for me that’s my hoe money not yours. I could’ve did what Asian hoe did and stash on you and got on but I didn’t. You acting hella weird now that’s why I stay my distance.”
On December 19, 2018, officers also arrested Davenport, who said his name was “Billy Travion Davenport.” Davenport had $427.55 in his sock and three phones. Law enforcement found Aaliyah’s EBT card, birth certificate, social security card, and a citation for prostitution in her name in Davenport’s car. Davenport denied knowing Aaliyah, denied trafficking her, and denied knowing what terms like “track” and “the blade” mean.
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The prosecution introduced photographs and videos extracted from Davenport’s cellphone. They included videos of Davenport using pimping subculture language; for example, “Ima knock her,” meaning to steal a sex worker from another pimp, and “put a bitch on da blade.” In other videos, Davenport says, “ ‘IBN the Great,’ ” “ ‘IBN the P,’ ” “ ‘It’s Better Now,’ ” and “ ‘I recruit hoes for a living.’ ” Photographs included Davenport making a pimp sign with his hands over Aaliyah’s body; Davenport wearing a shirt with IBN on it and throwing the pimp sign; of Aaliyah that were used for Internet sex ads; and of Aaliyah in lingerie holding up one to five fingers, which is a way of verifying to johns “that’s the right person that they’re going to meet.”
Law enforcement officers recovered hotel registration cards listing Davenport’s license plate number and surveillance footage of Davenport with Aaliyah from the Foxy Motor Inn and Gardena Motel.
C. Mackenzie S. (counts 4–5) Law enforcement officers found an Instagram account called IBN Smash that they linked to Davenport. In a message on the account, the user stated his name was Tyrell Davenport and accurately identified his date of birth.
In March 2021, Mackenzie began working for Davenport.
In text exchanges between Mackenzie and IBN Smash, they discussed her leaving her pimp, and how IBN Smash needed “ ‘a real one that’s gonna B down for me,’ ” because one of his “bitches” “ ‘ain’t no track star’ ” and the other was depressed. IBN Smash said his “ ‘fee’ ” was “ ‘2400,’ ” and it was time to “ ‘level up.’ ”
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After Mackenzie began working for Davenport, she had encounters with law enforcement. On October 13, 2022, an undercover officer in the area of Beach and Ball approached Mackenzie, who told him it was $120 for “ ‘everything.’ ” He replied he wanted only a blow job, and she said that was $80 and got into the officer’s car. Mackenzie asked if she could touch the officer, he said yes, and she grabbed his thigh and told him where to drive. Officers detained Mackenzie but released her and continued to monitor her. She and another woman were driven to Holt Street in Pomona, and Mackenzie continued to solicit passersby. On October 20, 2022, Mackenzie told an undercover officer that a date was $120. An officer cited but released Mackenzie.
Mackenzie got “ ‘prolific’ ” and “ ‘IBN,’ ” which she agreed stood for It’s Better Now, tattooed on her face and hand. Davenport posted a photograph of Mackenzie with the tattoo and commented, “ ‘U know this bitch get branded cuz they understand it.’ ”
Through a fake Instagram account, an officer posing as a sex worker contacted IBN Smash. A female officer spoke to a man, identified as Davenport by an officer familiar with his voice. During the call, the officer used phrases significant to the pimping and pandering subculture, telling Davenport she was waiting for her “reg” (a regular client) to show up, and that she was chilling with her “ex-wifey,” referring to another sex worker. Davenport asked if she played the net, meaning post sex ads online. He also said that he “ ‘heard Beach going back up too,’ ” meaning that it was again becoming a good place to get sex work. The officer asked what his “ ‘program’ ” would be like if she were to “fuck with him”; whether he would get her a new phone; and if
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he would “elevate” her. Davenport said they would talk about it in person.
On January 23, 2022, Davenport texted a phone linked to Mackenzie that she was “ ‘gonna make me fuk u up’ ” and asking “ ‘how much money u got?’ ” When Mackenzie told him a trick beat her, Davenport continued to ask how much money she had. She told him she had $640, and, when he told her to get “ ‘yo ass outside before I fuk u up,’ ”she replied she did not want to be hit more and was in pain. Davenport replied to let him know when “ ‘u got 10 bandz,’ ” referring to $1,000. After Mackenzie said she would not let Davenport hit her again, he threatened to “ ‘break yo face now.’ ”
A detective interviewed Mackenzie in May 2023. She denied being trafficked but admitted to being a sex worker. Mackenzie denied knowing that another sex worker, Grace (referred to as “the girl”), was a minor, and she denied that Davenport knew Grace’s real age. When the detective asked Mackenzie if she was the “bottom,” she replied that she was “the only bitch that was ever there.”
D. Grace E. (counts 6, 7, & 11) Much of the evidence about Grace came from communications between Instagram accounts associated with Davenport and “Roulette,” a name Mackenzie used in an ad. Mackenzie’s phone number was on commercial sex ads for Grace, and she and Mackenzie were in a sex ad together. An ad was posted when Grace was 17 years old.
In text exchanges, Mackenzie and Davenport discussed taking Grace to an “outcall” with Mackenzie, that Davenport had set up a $300 date for the new sex worker, referring to the new
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sex worker as “ ‘a little girl,’ ” and Mackenzie wanting the “ ‘little girl’ ” to go away because she had lied about her age.
E. Gillian B. (counts 8 & 9) Gillian went by Kilo Gram and Kash. Instagram accounts associated with Gillian and IBN Smash had exchanges in which they discussed her coming to work for him, updating him on her “dates,” and telling him, for example, that she was going to “ ‘buss 100 dates the rest of the night.’ ”
The phone number used to verify IBN Smash’s Instagram account was the same phone number on a sex ad featuring Gillian. Photos of Davenport were posted on the account, including of him making the pimp hand sign. When a user asked IBN Smash for identifying information, IBN Smash identified himself as Davenport.
Officers found a video of Davenport and Gillian in which she said, “ ‘Maybe one day you can come fuck with my daddy.’ ”
After Davenport was arrested, Gillian deposited over $1,500 into his inmate account. While in jail, Davenport spoke over the phone to Gillian, who called him “ ‘daddy.’ ” He told her she would be on “auto,” meaning continuing to fulfill her quotas and turn over money. In another call, Davenport told Gillian that she was supposed to be making “ten” $10,000, a week. When she replied it was hard to make that much, he said, “ ‘bust it down to five,’ ” $5,000.
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II. Verdict and sentence A jury convicted Davenport of human trafficking (Pen.
Code,4 § 236.1, subd. (b); counts 1 [Aaliyah] & 4 [Mackenzie]), pimping (§ 266h, subd. (a); counts 2 [Aaliyah] & 8 [Gillian]), pandering by encouraging (§ 266i, subd. (a)(2); counts 3 [Aaliyah], 5 [Mackenzie], & 9 [Gillian]), pandering by encouraging (§ 266i, subd. (b)(1); count 7 [Grace]), human trafficking of a minor for a commercial sex act (§ 236.1, subd. (c)(1); count 6 [Grace]), and pimping a minor 16 years of age or older (§ 266h, subd. (b)(1); count 11 [Grace]). The jury found true allegations that Aaliyah and Grace were particularly vulnerable (counts 1, 6 & 11), and Davenport induced others to commit the crime or occupied a position of leadership or dominance over other participants (counts 6 & 11).
The trial court sentenced Davenport on June 11, 2024. At the hearing, Davenport admitted two prior strikes and that he committed some of the crimes while out on bail. The trial court sentenced Davenport to consecutive 25 years to life terms on counts 1, 4, and 6, to the midterm of four years on count 8, and two years for the out-on-bail enhancement, for a total prison term of 75 years to life plus six years.
DISCUSSION
I. Admission of Aaliyah’s preliminary hearing testimony Over a defense objection, the trial court found that Aaliyah was unavailable to testify at trial and admitted her preliminary hearing testimony, given on May 16, 2019. Davenport now
4 All further undesignated statutory references are to the Penal Code.
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contends that admitting Aaliyah’s preliminary hearing testimony violated his constitutional rights to confront her. As we now explain, we disagree with his contention.
A. Additional background An amended complaint was filed on January 3, 2024. Trial was set for March 29, 2024 but continued. Voir dire began on April 8, 2024, and a jury was impaneled on April 16, 2024. The trial court held two hearings about the admissibility of Aaliyah’s preliminary hearing testimony, the first on April 16, 2024, and the second due diligence hearing on May 14, 2024, during trial.
1. April 16, 2024 hearing The first hearing considered a defense motion in limine to exclude Aaliyah’s prior testimony and the prosecution’s motion to admit it under the forfeiture by wrongdoing doctrine and Evidence Code section 1291. At the hearing, the prosecutor argued that a text exchange between Aaliyah and Davenport violated a criminal protective order because he encouraged Aaliyah to avoid testifying. That is, Aaliyah texted Davenport that she was going to visit her grandparents down south, and he said, “ ‘Get yo ass out of here. Lol.’ ” “Imma tell them I’m trying to go to trial.” Later, in June 2022, Davenport texted Aaliyah that the “ ‘DA can’t do nothing without you.’ ” The prosecutor further represented that she had learned a few weeks ago that Aaliyah was receiving mail at her grandparents’ home in Louisiana. At the prosecutor’s request, Department 100 issued
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an order on April 2, 2024 under section 1334.5 Aaliyah did not comply with the order.
In response, defense counsel disputed that Davenport asked Aaliyah to lie or tried to dissuade her from testifying, and argued that counsel did not have an adequate opportunity to cross-examine Aaliyah at the preliminary hearing.
The trial court declined to find that the forfeiture by wrongdoing doctrine applied, but found that Aaliyah “doesn’t want to be found,” so her prior testimony was admissible because she was unavailable.
2. May 14, 2024 due diligence hearing At this due diligence hearing held during trial, the prosecutor’s text exchanges with Aaliyah were introduced.
On June 27, 2023 (almost a year before trial began), Aaliyah texted the prosecutor that she did not “want to move forward with the case. I’m not a victim and he’s not ‘tampering’ with me, I contact him on my OWN and anything that I do with Tyrell is MY CHOICE. What I told you and the court was not 100% true and whether you or the judge believe me or not, I know, Tyrell know and God know what really was going on and it’s not what you guys are trying to make it. I don’t mind telling my truth now, and I don’t mind facing any consequences that may come with it, but if it means being free from the lies I told them I will do so. I hope you that you will understand along with the court.”
The prosecutor told Aaliyah that the best way to “set the record straight” was to speak for herself in court. The prosecutor
5 Section 1334 et seq. provides for the attendance of witnesses outside the state.
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told her there was a court hearing on July 6, 2023, gave her the address, and asked if she needed transportation. Aaliyah responded that she would show up, but “I want to know what the outcome will be for ME in particular when I say what I need to.” She added that she wanted the truth, because “if me taking this chance to even be present will not change anything I won’t waste my time and will let it go to trial and keep talking to Tyrell and stay on his side, and will just cut contact here.” Aaliyah said she had her own transport, and would talk it over with her husband and family. The prosecutor asked Aaliyah to get back to her by Friday, June 30, 2023 and reminded Aaliyah that the truth was all anyone wanted and Aaliyah was not in trouble. Aaliyah responded with a heart emoji. When the prosecutor did not hear from Aaliyah by July 6, 2023, the prosecutor texted her, asking if she would be in court the next morning. Aaliyah did not reply and did not come to court.
Officer Sorina Thomas testified that she started searching for Aaliyah on December 17, 2023. The prosecutor gave the officer Aaliyah’s previous and last known addresses and a phone number that the prosecutor had recently used to contact Aaliyah. The officer also searched for advertisements, thinking Aaliyah might still be working.
Officer Thomas surveilled Aaliyah’s grandparents’ home twice but never saw Aaliyah. She knocked on the door but there was no response, and she tried to speak to neighbors. The officer also twice surveilled an address in Los Angeles listed on a booking record for Aaliyah but did not see her. The mailbox contained documents not addressed to Aaliyah.
On January 3, 2024, the officer called two phone numbers associated with Aaliyah but they were no longer in use.
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On March 1, 2024, the prosecutor asked the officer to resume searching for Aaliyah. The officer found ads featuring Aaliyah but did not try to contact her using them, believing that doing so might harm Aaliyah. On March 5, 2024, the officer received credible information that Aaliyah was receiving mail at a location in Louisiana. The prosecutor then told the officers that she would start the process of doing a long-arm out-of-state subpoena for Aaliyah.
On April 19, 2024, the court assistant told the prosecutor that Aaliyah was on the phone, saying she wanted to come. When the prosecutor got on the line, she spoke briefly to Aaliyah, who said she was “findable,” but when the prosecutor asked Aaliyah where she was, the call dropped or Aaliyah hung up. The prosecutor tried to call Aaliyah back. The prosecutor then texted Aaliyah, asking her to come to court and to return the prosecutor’s call. The prosecutor asked Aaliyah to be at court for Davenport’s trial on April 22, 2024, gave the time and location, and offered transportation. Aaliyah texted, “I’m not coming to court for you. I’m coming for Tyrell only. I’m changing my number. Please leave me alone. I only wanted the clerk and the judge to know you didn’t, in fact, try to get contact with me or find me because I’ve been in Los Angeles County. Also he doesn’t go back to court until Tuesday, so why would I show up when he isn’t there. I can afford my own transportation, so I will show up when my presence is needed. Thanks. Have a better day.” The prosecutor texted back, asking Aaliyah to confirm she would be in court on April 23, 2024, at 8:30 a.m. Aaliyah responded, “Ha Ha.” When the prosector asked if that meant Aaliyah was not coming, the prosecutor’s text would not go through, leading her to believe that Aaliyah was blocking her number. When the prosecutor
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asked the officer to call Aaliyah, it rang twice and “then it sounded like it was an advertisement.”
On April 21, 2024, the prosecutor gave Officer Thomas a phone number for Aaliyah that the prosecutor had just received a couple of days earlier. The phone was disconnected, and the officer stopped searching for Aaliyah, even though the officer found an ad offering her services in Moreno Valley. Aaliyah was posting ads as recently as the day before the hearing.
The trial court found that the “People did a lot” to search for Aaliyah, although it was possible they could have done other things. The trial court was unpersuaded that the prosecution was not diligent because it did not look for Aaliyah in Moreno Valley, observing that merely because that was one of her spots did not mean she was there. It was clear to the trial court that Aaliyah remained loyal to Davenport, and that if he wanted her there, she would come. The trial court found Aaliyah unavailable and admitted her preliminary hearing testimony.
B. Aaliyah was unavailable to testify at trial The confrontation clauses in our federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution’s witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. 1, § 15.) The confrontation right seeks to ensure a defendant is able to personally examine a witness to test the witness’s recollection and to compel the witness to face the jury so that it may judge the witness’s demeanor and manner in which the testimony was given. (People v. Herrera (2010) 49 Cal.4th 613, 620–621 (Herrera).)
The confrontation right, however, is not absolute. (Herrera, supra, 49 Cal.4th at p. 621.) If a witness unavailable at trial gave testimony at a prior judicial proceeding against the same
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defendant and was subject to cross-examination, that prior testimony is admissible. (Ibid.) Evidence Code section 1291, subdivision (a)(2), codifies this exception. It provides that former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness, and the party against whom the former testimony is offered was a party to the 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 the party has at the hearing. (Evid. Code, § 1291, subd. (a)(2).)
A witness is unavailable if the prosecution “has exercised reasonable diligence but has been unable to procure [the witness’s] attendance by the court’s process.” (Evid. Code, § 240, subd. (a)(5).) Due diligence lacks precise definition but it “ ‘ “ ‘connotes persevering application, untiring efforts in good earnest, [and] efforts of a substantial character.’ ” ’ [Citation.] We evaluate whether the prosecution timely searched for the unavailable witness, whether the prosecution ‘competently explored’ leads on the witness’s location, and the overall import of the unavailable witness’s testimony.” (People v. Wilson (2021) 11 Cal.5th 259, 291 (Wilson).) “A witness who is absent from a trial is not ‘unavailable’ in the constitutional sense unless the prosecution has made a ‘good faith effort’ to obtain the witness’s presence at the trial.” (Herrera, supra, 49 Cal.4th at p. 622.) The law, however, does not require the doing of a futile act. (Ibid.)
We review de novo the trial court’s unavailability determination but defer to its determination of historical facts supported by substantial evidence. (Wilson, supra, 11 Cal.5th at p. 291.)
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Davenport first argues that there is no substantial evidence the prosecution tried to procure Aaliyah’s trial attendance “by the court’s process.” (Evid. Code, § 240, subd. (a)(5).) Not so. The prosecutor sought Aaliyah’s attendance through the long-arm statute, section 1334 et seq. Under that statute, a California judge may issue a certificate to a judge of a court in the county of the state in which a material witness is found. (§ 1334.3; see generally People v. Cogswell (2010) 48 Cal.4th 467, 475.) If various conditions are met, the receiving sister court will issue a subpoena directing the witness to attend and testify in the court where the prosecution is pending. (§ 1334.2; Cogswell, at p. 475.)
The prosecutor represented that Aaliyah was receiving mail at her grandparents’ home in Louisiana, and Aaliyah had told Davenport she was going down south. Based on that information, the prosecutor asked the court to issue an order under section 1334. The record contains a “Certification of Clerk of Requesting County for Attendance of Witness Aaliyah [ ] Pursuant to California Penal Code Section 1334.” The certification is dated April 2, 2024, just six days before voir dire began and about two weeks before the jury was impaneled. Notwithstanding that further verification of the Louisiana court’s receipt of the order is not in the record, the certification is nonetheless evidence that the prosecution used the court process to obtain Aaliyah’s attendance at trial.
Second, Davenport argues that the prosecutor did not exercise reasonable diligence to locate Aaliyah, characterizing the effort to locate her as a merely knocking on two doors. This is inaccurate. The evidence instead shows that the prosecution began a timely search for Aaliyah in July 2023, nine months before trial began. The search resumed in March 2024, a month
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before trial began, and continued into trial, with the prosecutor speaking via phone and text to Aaliyah on April 19, 2024. On April 21, 2024, while trial was ongoing, Officer Thomas called another phone number associated with Aaliyah, but it was disconnected. Thus, the prosecution’s efforts to get Aaliyah to attend trial spanned about nine months, continuing into trial. (Compare People v. Avila (2005) 131 Cal.App.4th 163, 167, 169 [due diligence not found where prosecution first tried to locate witness at start of retrial].)
The evidence further establishes that the prosecution competently explored leads about Aaliyah’s whereabouts. Aaliyah apparently had no fixed address and used different phone numbers.6 Still, Officer Thomas twice surveilled two residences associated with Aaliyah, and the prosecution tried to find Aaliyah at her grandparents’ home in Louisiana. On multiple occasions, Aaliyah’s phones were disconnected or not answered. Therefore, this was not a case involving a witness who had fixed ties to a place or person or a reliable phone number.
Davenport also faults the prosecution for not taking other steps to find Aaliyah, namely, calling numbers in ads featuring Aaliyah that someone continued to post during trial or looking for her in Moreno Valley, referenced in an ad. The prosecution, however, was not required to take these steps. We will not reverse a trial court’s unavailability finding simply because a “ ‘defendant can conceive of some further step or avenue left unexplored by the prosecution. Where the record reveals, . . . that sustained and substantial good faith efforts were undertaken, the defendant’s ability to suggest additional steps
6 Aaliyah had told officers that she became a sex worker because she was unhoused and had nowhere to go.
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(usually, as here, with the benefit of hindsight) does not automatically render the prosecution’s efforts “unreasonable.” [Citations.] The law requires only reasonable efforts, not prescient perfection.’ ” (People v. Diaz (2002) 95 Cal.App.4th 695, 706.) Officer Thomas did not take further steps based on Aaliyah’s recent ads because she felt doing so might endanger Aaliyah’s safety. Also, as the trial court observed, that Aaliyah’s ad said she worked in Moreno Valley was not much of a lead, given Moreno Valley’s size and that there was no evidence Aaliyah was staying in that area. (See People v. Lawson (2020) 52 Cal.App.5th 1121, 1130 [reasonable steps to secure witness’s testimony must be taken unless it’s obvious they would be unavailing]; compare People v. Cromer (2001) 24 Cal.4th 889, 903–904 [due diligence not found when prosecution went to home where witness might be staying but failed to return when told witness’s mother would be there the next day].)
Nor do we agree that the prosecution received a “massive lead” on April 19, 2024 when Aaliyah called the court and said she would come to court and was “findable.” But that is not all Aaliyah said. She also texted the prosecutor that she was changing her number and to leave her alone. When the prosecutor asked Aaliyah to confirm she would come to court, Aaliyah responded, “Ha Ha.” The prosecutor’s follow-up text did not go through, suggesting that Aaliyah blocked the prosecutor’s number. We therefore do not agree that the communications between Aaliyah and the prosecutor show Aaliyah was findable, wanted to be found, or would come to court. (See, e.g., People v. Diaz, supra, 95 Cal.App.4th at p. 706 [“ ‘it is unclear what effective and reasonable controls the People could impose upon a witness who plans to leave the state or simply “disappear” ’ ”].)
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Finally, we consider the overall import of Aaliyah’s testimony when considering whether the prosecution acted with reasonable diligence and in good faith to locate her. (Wilson, supra, 11 Cal.5th at p. 291.) Undoubtably, her testimony was important. And it may be, as Davenport suggests, that Aaliyah had credibility issues that could have cast doubt on the prosecution’s case. Nonetheless, Aaliyah’s testimony was not akin to the unavailable witness’s testimony in People v. Louis (1986) 42 Cal.3d 969, cited by Davenport. In that case, the unavailable witness’s prior testimony was the sole evidence identifying the defendant as the shooter in a murder case. (Id. at p. 989.)
Here, in contrast, Aaliyah was not the sole source of evidence supporting the counts pertaining to her. Law enforcement officers testified that they saw Davenport drop Aaliyah off on the blade and go to a lot where pimps commonly waited. Aaliyah’s personal documents were in Davenport’s car. Photographs and videos on Davenport’s cellphone identified him as a pimp known as IBN. The photographs included ones of Aaliyah that were used for Internet sex ads. Surveillance footage from motels showed Davenport with Aaliyah, and the motels’ registration cards listed his car’s license plate number. Therefore, the prosecution introduced other compelling evidence, including Davenport’s own statements in videos and photographs, to establish that he trafficked Aaliyah.7
7 Because we hold that Aaliyah was unavailable, we need not address Davenport’s alternative argument about the applicability of the forfeiture by wrongdoing doctrine.
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II. Admissibility of Aaliyah’s statements to law enforcement Davenport next contends that the trial court’s admission of Aaliyah’s statements to law enforcement violated Crawford v. Washington (2004) 541 U.S. 36 (Crawford). As we now explain, no violation of Crawford occurred.
As an initial matter, the Attorney General argues that Davenport forfeited this contention by failing to raise it below. That is, the defense argued below that Aaliyah’s statements were hearsay and it had no opportunity to cross-examine her about them, but counsel did not expressly raise the confrontation clause. Even if Davenport did not preserve the constitutional objection, we may consider the issue’s merits because it affect’s Davenport’s substantial rights.8 (§ 1259.)
Turning to the merits, Crawford, supra, 541 U.S. 36, held that the confrontation clause forbids the admission of testimonial hearsay unless the declarant is unavailable to testify and the defendant had an opportunity to cross-examine the declarant. Testimonial statements include ones made during police interrogations. (Id. at p. 68; People v. Cage (2007) 40 Cal.4th 965, 978.) In addition to demonstrating that the witness was unavailable under the standards we discussed above, the prosecution also must establish that the defendant had a previous opportunity to cross-examine the witness, with an interest and motive similar to the defendant’s interests and motives at trial. (Evid. Code, § 1291, subd. (a)(2); Herrera, supra, 49 Cal.4th at p. 621.)
8 Because we address the merits of Davenport’s contention, we do not address his alternative contention that his trial counsel provided ineffective assistance by failing to object on constitutional grounds.
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We have rejected Davenport’s argument that there was insufficient evidence Aaliyah was unavailable.
We also reject that Davenport did not have an opportunity at the preliminary hearing to cross-examine Aaliyah about her statements to law enforcement. Where, as here, defendant had an opportunity to cross-examine a witness at the time of the witness’s prior testimony, that testimony is deemed sufficiently reliable to satisfy the confrontation requirement, even if subsequent circumstances bring into question the accuracy or the completeness of the earlier testimony. (People v. Samayoa (1997) 15 Cal.4th 795, 851–852; People v. Harris (2005) 37 Cal.4th 310, 333 [motives at prior hearing and trial need not be identical, only similar].) Davenport’s motives and interests at the preliminary hearing and at trial were to impugn Aaliyah’s credibility and to demonstrate that the prosecution could not prove its case. Defense counsel thus elicited responses from Aaliyah that could show Davenport did not traffic her, for example, Aaliyah agreed that Davenport did not “physically force[ ]” her to stay with him; she did not try to get away from him; and she wanted the tattoos. Davenport thus had an opportunity to cross-examine Aaliyah.
Davenport, however, further disputes that he had the opportunity to cross-examine Aaliyah specifically about her December 16, 2018 statements, because the recordings were not turned over until trial. However, the information Aaliyah gave in her brief interviews on December 16, 2018, including identifying her pimp as IBN, was repeated in her subsequent, lengthy interview on December 19, 2018. In that interview, Aaliyah identified her pimp as IBN and provided greater details about her background and her relationship with Davenport. Davenport does not identify any statement Aaliyah made on December 16,
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2018 that she did not make on December 19, 2018 and that he did not have an opportunity to cross-examine her about. Davenport therefore had the opportunity to cross-examine Aaliyah about her statements to law enforcement. III. Cumulative error Davenport contends he is entitled to reversal because of cumulative error. “[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.) However, defendants are entitled to fair trials, not perfect ones. (Ibid.) Here, we have found no errors, harmless or otherwise. Therefore, there are no trial errors to cumulate.
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DISPOSITION
The judgment is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ASHWORTH, J.*
We concur:
ADAMS, P. J.
HANASONO, J.
* Retired Judge of the El Dorado Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.