People v. Duncan CA3

Filed 4/11/25 P. v. Duncan CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C099572

v. (Super. Ct. No. 22FE017940)

DERRICK DUNCAN,

Defendant and Appellant.

A jury convicted defendant Derrick Duncan of assault with a deadly weapon and found true an allegation that he personally inflicted great bodily injury. The trial court sentenced him to nine years in state prison. Defendant now contends his constitutional right to confront prosecution witnesses was violated by the admission at trial of the absent victim’s preliminary hearing

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testimony, because the People did not show they had used reasonable or due diligence to secure the victim’s presence at trial. Finding no constitutional violation, we will affirm the judgment. BACKGROUND The victim testified at the preliminary hearing on February 7, 2023. He said he was without permanent housing and had been living in downtown Sacramento near X Street. Codefendant Develle Oneal Thomas was known to him.1 Thomas was the victim’s drug dealer and lived in a tent on X Street. On the day of the assault, the victim met with Thomas and defendant. Thomas argued with the victim and slapped his face. After the argument, the victim sent a woman to obtain fentanyl from Thomas. When Thomas learned that the woman had been sent by the victim, he went with defendant to talk with the victim. During a fight between the three men, defendant and Thomas hit the victim on the head, rendering him unconscious. While he was unconscious, the victim was stabbed. The victim told responding officers that Thomas had stabbed him. On cross-examination, the victim admitted he had been hit on his sides, he had not seen a knife, but when he returned to consciousness he had stab wounds where defendant and Thomas had hit him. At the conclusion of the victim’s preliminary hearing testimony, the trial court ordered the victim to return to court on April 3, 2023, to testify at trial. The victim did not appear on April 3, 2023. The trial was continued to May 23, 2023, but again the victim did not appear. Following a hearing described in the discussion portion of this opinion, the trial court allowed the prosecution to read the victim’s preliminary hearing testimony to the jury at trial.