People v. Wyatt CA1/3

Filed 12/27/24 P. v. Wyatt CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, v. A167943 OTIS WYATT, (Alameda County Defendant and Appellant. Super. Ct. No. 17CR004380)

In January 2023, a jury convicted Otis Wyatt of second degree murder and found true accompanying firearm enhancements, and the trial court sentenced him to 25 years to life in prison. He appeals and argues, among other things, that the prosecution violated his Sixth Amendment right to confrontation. We agree and reverse. BACKGROUND In July 2018, the prosecution charged Wyatt with murdering Darrell Daniel, Jr., and alleged he personally discharged a firearm causing great bodily injury and death. It alleged Wyatt shot Daniel, Jr. in October 2016 near the intersection of Willow Street and 11th Street in Oakland. ShotSpotter reported the shooting, and police officers found Daniel, Jr. lying in the street. Officers spoke with two witnesses in recorded interviews. The first said he was near the intersection before and after the shooting (D.K.). When

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Daniel, Jr. arrived, Televe Johnson — a friend of Wyatt’s — gave Wyatt a gun to kill Daniel, Jr. After the shooting, Wyatt told D.K. that Daniel, Jr. “had it coming.” The second witness was a felon previously convicted of a crime of moral turpitude (E.R.). Just before E.R.’s interview, officers arrested him for murder. Police told him they’d talk to the prosecutor if he gave them information about Daniel, Jr.’s killing. During the interview, E.R. told police he saw Wyatt kill Daniel, Jr. He also said Daniel, Jr. had been shooting people in the neighborhood and threatened to kill Johnson. But at the preliminary hearing, he testified he lied to avoid punishment. He also said he was schizophrenic, had been hallucinating and hearing voices since he was 9 years old, and he was not medicated the night Daniel, Jr. died. Instead, he drank Hennessy and took heroin and methamphetamine. He also stated he did not want to testify but was compelled to by subpoena. He recanted his statements to police, but the prosecutor impeached him with the recording of his interview. The day before the hearing, he was committed to a mental health facility for trying to harm himself and refusing to take his medication. On September 29, 2022, Wyatt withdrew his time waiver, and the matter was set for trial. In November, the prosecutor moved to admit E.R.’s preliminary hearing testimony — along with the prosecutor’s impeachment of him — due to E.R.’s unavailability. (Evid. Code, §§ 240, 1291, 1294.) The trial court heard the motion on December 1 and 15. At the hearing on December 1, 2022, the prosecutor relayed his efforts to locate E.R. On October 6, 2022, the prosecutor asked inspector Phil Green to find E.R. Green searched three databases and found E.R. had an