People v. Ambrocio-Garcia CA1/3

Filed 1/18/23 P. v. Ambrocio-Garcia CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, A163906 v. (Solano County HECTOR AMBROCIO-GARCIA, Super. Ct. No. FCR343767) Defendant and Appellant. [REDACTED] The prosecutor charged defendant Hector Ambrocio-Garcia with sexually abusing three young girls. The jury acquitted him of the sexual abuse charges, but it convicted him of misdemeanor battery, assault, and indecent exposure; the trial court imposed jail time and barred him from contacting the victims for 10 years. Defendant appeals, raising numerous claims of error. His principal contention is the admission of a witness’s conditional examination testimony violated the confrontation clause of the federal Constitution because the prosecutor did not make a good-faith, reasonable effort to secure the witness’s presence at trial. We agree, and we find the error prejudicial. We reverse count 1 — the battery conviction as to that witness. In all other respects we affirm. 1 BACKGROUND The prosecutor charged defendant with sexual penetration of Y.L., a child under 10 years old (Pen. Code, § 288.7, subd. (b), counts 1 and 2);1 committing a forcible lewd act upon N.R.-L., a child under 14 years old (§ 288, subd. (b)(1), count 3); committing lewd acts upon R.V.-G., a child under 14 years old (§ 288, subd. (a), counts 4 and 5); and misdemeanor indecent exposure (§ 314, count 6). In 2018, Yesenia G.-L. left Central America and entered the United States illegally. Her six-year-old daughter, R., and her 10-year-old son, L., accompanied her. At an immigration appointment, Yesenia met a woman who lived in defendant’s apartment building. Yesenia needed a place to live, so the neighbor gave her defendant’s contact information. Thereafter, Yesenia rented a room in his two-bedroom apartment. She, her two children, and her brother-in-law lived in one bedroom. Defendant and his two young children lived in the other bedroom. Later, two other families moved into the living room — six-year-old Y. and her father, and seven-year-old N. and her father. At trial, the prosecutor introduced testimony from several children who lived in defendant’s apartment. For example, Y. testified defendant hugged her and touched her genital area once, over her clothes, while N. was present.2 It made Y. feel badly, but she did not tell her father — who was in 1Undesignated statutory references are to this code. We provide an overview of the trial testimony here, and more detail in the discussion of defendant’s specific claims. 2 Y. — who was “out of the country” — did not testify at trial. In lieu of her testimony, the prosecution played her videotaped conditional examination for the jury. Y. identified defendant based on a picture; …

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