Ct.App. 4/1 D049038 San Diego County Super. Ct. No. SCN201693 Judge: John S. Einhorn.
The opinion of the court was delivered by: Kennard, J.
A witness's preliminary hearing testimony is admissible at trial if the witness is "unavailable" despite the exercise of "reasonable diligence" by the party seeking the witness's attendance. (Evid. Code, § 1291.) At issue is whether, to show "reasonable diligence" in obtaining the presence at trial of a sexual assault victim living outside California, the prosecution in this case had to ask a court to order the victim taken into custody and transported to California to testify at defendant's trial.
On a visit to California, a Colorado woman was sexually attacked. At the preliminary hearing, she testified against defendant Henry Ivan Cogswell, her attacker, but thereafter she refused to return to California to testify at his trial. The prosecution then sought to compel her attendance at trial through a law that has been adopted in all 50 states and is known as the Uniform Act to Secure the Attendance of Witnesses from without the State in Criminal Cases. (Uniform Act; Pen. Code, § 1334 et seq.) Under the Uniform Act, as adopted in California, a party in a criminal case can ask a court in the state where an out-of-state material witness is located to subpoena the witness and also to have the witness taken into custody and brought to the prosecuting state to testify.
At the prosecution's request, a Colorado court issued a subpoena to the sexual assault victim. When she did not appear at defendant's California trial, the California trial court declared her to be unavailable as a witness, and it permitted the prosecution to use the victim's preliminary hearing testimony as evidence at defendant's trial. A jury convicted defendant of various sexual assaults. He appealed.
The Court of Appeal disagreed with the trial court's determination of the Colorado witness's unavailability. In the Court of Appeal's view, the prosecution had not used reasonable diligence in securing her presence at defendant's California trial because it did not avail itself of the Uniform Act's provision allowing for an out-of-state material witness's detention and transportation to the prosecuting state. Unlike the Court of Appeal, we conclude that the prosecution did use reasonable diligence in obtaining the witness's presence.
Defendant was accused of sexually assaulting Lorene B., a Colorado resident, while she was vacationing in California. Lorene returned to California to testify at defendant's preliminary hearing, where she was thoroughly cross-examined by defense counsel. Based on that testimony, defendant was held to answer on the charged sexual offenses.
Because Lorene had previously been cooperative, the prosecution had not subpoenaed her to testify at defendant's California trial. On the date of trial, Lorene told the prosecution she would not testify against defendant. Without Lorene's testimony at trial, the prosecution could proceed against defendant only if it could use, as evidence of defendant's guilt, the testimony that Lorene had previously given at the preliminary hearing.
Because the prosecution could not show that it had used reasonable diligence in securing Lorene's attendance at defendant's trial (Evid. Code, § 240, subd. (a)(5)), and because without such a showing it could not use at trial the testimony that Lorene had given at the preliminary hearing, it asked the trial court to dismiss the case. A new complaint against defendant was then filed. The parties stipulated that defendant could be held to answer on the complaint and that the complaint could be deemed the information. The case was set for trial on December 20, 2005.
On November 2, 2005, the prosecution asked the San Diego Superior Court that, in accordance with the Uniform Act, a request be made to the Denver District Court in Colorado for the issuance of a subpoena to Lorene. The court did so. As required under the Uniform Act, the subpoena request was accompanied by a round-trip airplane ticket from Denver to San Diego, plus a daily allowance for food and hotel expenses.
In mid-December 2005, the San Diego Superior Court vacated the December 20 trial date, and set a new trial date for January 31, 2006. On December 20, in a telephone call to the prosecution in California, Lorene said she would not testify at defendant's trial. Thereafter, the prosecution made no further efforts to contact Lorene, fearing that she would view this as "intimidation," and that if she were told about the new January 31, 2006, trial date before she had been subpoenaed she would try to evade service of the subpoena. Instead, the prosecution again asked the San Diego Superior Court to have the Denver, Colorado court subpoena Lorene to appear as a material witness at defendant's San Diego trial, rescheduled for January 31, 2006. Again, the request was accompanied by a round-trip airplane ticket to San Diego and a daily allowance for food and hotel expenses. The prosecution did not request, as permitted under the Uniform Act, that Lorene be taken into custody and brought to San Diego to testify.
The Denver, Colorado court issued the subpoena, and the Denver District Attorney then confirmed that the subpoena was served on Lorene on January 20, 2006, and that Lorene was given the requisite plane ticket and witness fees.
When on February 1, 2006, the first day of defendant's trial in San Diego, Lorene did not appear, the prosecution asked the trial court that, because Lorene was "unavailable as a witness" (Evid. Code, § 1291, subd. (a)) notwithstanding the prosecution's use of reasonable diligence in attempting to secure her presence (id., § 240, subd. (a)(5)), the prosecution be allowed to use as evidence at defendant's trial Lorene's previously given preliminary hearing testimony. The prosecutor explained: "[Lorene] has stated to me and to my investigator . . . that she has had as much of this matter as she can possibly handle. [¶] She's had contact from the family members of the defendant, from her prior friends. Given the small nature of the deaf community,[*fn1 ] she lives in Colorado to escape what she has lived through here. And she has emotional issues with coming back here to court. She informed me prior to yesterday at the last trial call that she would not be here." Defendant objected, unsuccessfully, that the prosecution had not used reasonable diligence to secure Lorene's attendance as a witness because of its failure to ask a Colorado court to order that, as allowed under the Uniform Act, Lorene be taken into custody and brought to San Diego to testify at defendant's trial.
Based primarily on Lorene's preliminary hearing testimony, the jury convicted defendant as charged. In a bifurcated proceeding, the jury found that defendant had a prior serious felony conviction (Pen. Code, §§ 667, subds. (a), (b)-(i), 668), that he had served a prison term for that conviction and had not remained free from any new offense for 10 years after his release (id., §§ 667.5, subd. (a), 667.6, subd. (a)), and that a previous conviction for forcible rape made him a habitual sex offender (id., § 667.61, subds. (a), (c), (d)). The trial court sentenced defendant to consecutive indeterminate terms of 50 years to life on two ...