PEOPLE v. HERRERA (1981)

Roberto Aguilar Herrera appeals his conviction on two counts of lewd and lascivious acts on a child under age 14 (Pen.Code, § 288, subd. (a)), and two counts of unlawful sexual intercourse with a minor (Pen.Code, § 261.5) on three grounds:  (1) it was error for the trial court to give CALJIC No. 4.71 (instruction that prosecution's proof need not show exact time of crime);  (2) the transcript of the absent, out-of-state, victim's testimony at the preliminary hearing was improperly admitted at trial;  and (3) certain extrajudicial statements made by Herrera should have been excluded at the trial.

We reverse because the prosecution failed to make a showing of due diligence to secure the absent witness' attendance through available judicial process, and do not address the other issues.

Background

Lawana, Herrera's step-grandaughter, accused him of having had sexual intercourse with her on or about April 29, 1979, April 26, 1980 and at other times in between.   In April, 1980 Lawana informed her younger brother of the sexual relations and the following month he informed their mother of this.   On the same day, Lawana wrote a note to her mother describing what had happened.   Her mother called the police and Detective Evans contacted Herrera.   After being given the Miranda warnings, Herrera said “Yes”.

Herrera then proceeded to describe one recent incident, approximately April 26, at a drive-in theater in which Lawana rubbed her vagina on his penis, causing him to ejaculate;  an earlier occasion where she fondled him while on a trip to Los Angeles, also causing him to ejaculate;  and an incident in his bedroom where she came to him and started rubbing him, but he pushed her away.   He steadfastly denied being the agressor in any incident, and did not answer when asked if he had had sexual intercourse with the girl.

Lawana stated Herrera wiped himself after copulation with rags kept under the front seat of his car.   Analysis of the rags showed no semen.

Lawana testified at the preliminary examination and was cross-examined.   Lawana reportedly became very upset at the prospect of having to testify again at the trial and became “uncontrollable,” running away once.   Before trial, Lawana's mother sent her to live with her grandmother in Cleveland, Ohio, and when the district attorney's office made arrangements to fly Lawana back from Ohio for the trial, her mother and grandmother (by telephone) told the district attorney Lawana would not return.   The court below found, pursuant to the provisions of Evidence Code section 240,¹ the district attorney had exercised due diligence and been unable to procure the attendance of the witness by the court's process and permitted her testimony to be introduced through reading the transcript of the preliminary hearing.

Admissibility of Transcript of Victim's Testimony

Herrera claims admitting the transcript of Lawana's preliminary examination testimony violated his right to confront witnesses against him as guaranteed by the United States Constitution and the California Constitution.   Because we hold there was no proper evidentiary foundation for admission of the transcript, we do not address the constitutional issues raised.

California Evidence Code section 1291 permits introduction of the transcript of former testimony in a previous proceeding at trial only if the witness is “unavailable,” as defined in section 240, providing several alternative grounds upon which a trial court may base a finding of unavailability.

The trial court based its ruling on section 240, subdivision (a)(5), which designates a witness as unavailable if he or she is “absent from the hearing and the proponent of his statement has exercised reasonable diligence but has been unable to procure his attendance by the court's process.”   Basing its position on the argument the record showed some likelihood Lawana would suffer emotionally if she testified at the trial, the People incorrectly claim the trial court's ruling was based on section 240, subdivision (a)(3), classifying a witness as unavailable if the witness is “dead or unable to attend or to testify at the hearing because of an existing physical or mental illness or infirmity.”   Any ambiguity as to the trial court's basis for ruling is dispelled by the court's statement at trial:

“By the way, I want to make sure that you understand my finding on the non-appearance of the witness.   That my finding was specific for the record, that you did everything to obtain her availability.

“I didn't make the ruling on the basis that she was mentally incompetent for any reason to testify, because I don't think she is in any different situation than any other witness testifying in a rape or any other case.

“There is no rape case you will try where the victim is happy to come into court, and that is the situation.   I want it clear my finding was limited to the fact that you made every effort to get her back here and she didn't come back.   No problem with that.”  (Emphasis added.)

 On the record before us, the trial judge was fully justified in refusing to find Lawana's mental health would prevent her trial appearance.   The sole issue here is whether the record showed sufficient prosecutorial diligence in attempting to secure the presence of the complaining witness.   We conclude it does not and the contrary trial court finding is an abuse of discretion.

The language of section 240, subdivision (a)(5), provides some guidance as to what is required for the prosecution to establish due diligence.   The prosecution must have “been unable to procure ․ [the witness'] attendance by the court's process.”   Here, the prosecution subpoened Lawana for the original trial date, August 14.   The trial was twice continued, to August 21 and August 26 at the prosecutor's request.   After the first continuance, the prosecutor did not resubpoena Lawana, but stayed in touch with her mother by telephone.²  Concerned with Lawana's emotional stability, on August 24, her mother sent her to Ohio to prevent her having to testify.   That same week the prosecutor made air reservations to have Lawana flown back for trial.   The plans were unavailing, Lawana's grandmother called from Ohio and said the girl did not want to return and, in the grandmother's opinion as a registered nurse, would suffer emotionally if forced to do so.   The prosecutor made no further effort to obtain Lawana's attendance.

The foregoing efforts do not satisfy the prosecution's burden to diligently utilize the court's process to obtain Lawana's presence at trial.   Rather, the record shows the prosecution deferred to the wishes of Lawana, her mother and grandmother that she not testify.   There is no showing the witness might not have been amenable to court process under the Uniform Act to Secure the Attendance of Witnesses from without the State in Criminal Cases (Pen.Code, §§ 1334–1334.6), a procedure also available in Ohio at the time of trial pursuant to Ohio Revised Code sections 2939.25 to 2939.29.   On this record we cannot presume an Ohio court would necessarily find Lawana's attendance at trial would result in undue hardship.  (In re Terry, 4 Cal.3d 911, 931, 95 Cal.Rptr. 31, 484 P.2d 1375.)

Discussing facts surprisingly similar to ours, the Supreme Court in Terry, set aside a conviction resting solely on preliminary hearing testimony of absent minors, age 11 and 13, who had been subpoened in California but removed to Virginia by their father before trial.   The prosecution telephoned the father, a high ranking Naval officer, who refused to return the children for trial because “he would be in conference with the President of the United States,” the children would be in school, and had suffered too much embarrassment to ever attend the trial.  (Id., at p. 929–930, 95 Cal.Rptr. 31, 484 P.2d 1375.)   Noting the Uniform Act was then in force in both California and Virginia, the Supreme Court ruled the prosecution's failure to attempt to obtain the witnesses' presence through the procedures of the Act did not satisfy the good faith requirements of Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255.³

Unavailability, as defined in section 240, subdivision (a)(5) was not meant to be a detour around the constitutional hurdle of a defendant's right to be personally confronted by his accuser.   Rather, it is a series of portable steps which, when procured and placed solidly one upon the other to a sufficient height, allows the obstacle to be topped.   The prosecutor's good faith belief his witness will appear without being subpoenaed, shows only minimal concern with insuring a witness' attendance.  (See discussion in Owens v. Superior Court, 28 Cal.3d 238, 252, fn. 14, 168 Cal.Rptr. 466, 617 P.2d 1098.)   Without a new subpoena or an in-court verbal order to return, there is no legal requirement for a witness to appear, no sanctions are available to encourage attendance, and the prosecutor elects to proceed at his peril.   Here, he elected to rely on the assurance, not of the witness, but of her mother.   This reliance was misplaced.   There is, in fact, no reason to believe the minor, or her mother, would have disregarded a subpoena, they had honored them twice in the past.

Nor does the proximity to trial satisfy any part of the measure of diligence to be shown before depriving the defendant of his constitutional right to confrontation.   There were at least three alternate courses available to the prosecutor.   First, he could have asked the court for a reasonable continuance to test the effectiveness of an out-of-state subpoena.   If Herrera again agreed to waive time, the delay problem would be overcome.

 Secondly, should Herrera demur to a continuance, the court could properly grant one over his objection upon finding the prosecutor had used due diligence in procuring attendance of the missing material witness.⁴  Continuances granted on this basis, “in the interest of a fair trial,” are appropriate unless the convicted defendant shows he was actually prejudiced by the delay to the extent it is likely a different result would have resulted had the trial been held within the statutory period.  (People v. Salcido, 263 Cal.App.2d 1, 4–5, 69 Cal.Rptr. 193.)

 Thirdly, if the prosecutor failed to obtain either a stipulated or court ordered continuance, he could have dismissed, or suffered a court ordered dismissal (Pen.Code, § 1382) and reprosecuted after utilizing the interstate compact.  (Owens v. Superior Court, supra, 28 Cal.3d 238, 249, 168 Cal.Rptr. 466, 617 P.2d 1098;  Pen.Code, § 1387.)

The prosecution was not entitled to introduce the transcript of Lawana's preliminary examination testimony at trial.

The court's ruling precluded Herrera from cross-examining his principal accusor in a trial setting where her demeanor could be observed and the jury could more completely evaluate her credibility.  (People v. Winson, 29 Cal.3d 711, 716–717, 175 Cal.Rptr. 621, 631 P.2d 55.)   Lawana's testimony was the very heart of the prosecution's case.   The erroneous introduction of Lawana's earlier testimony denying Herrera a face-to-face trial confrontation, was clearly prejudicial.  (Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.)

Judgment reversed.

I must respectfully dissent.

I believe the evidence supports the finding by the court that the People exercised reasonable diligence but were unable to procure the attendance of the victim and, therefore, the admission of the victim's testimony at the preliminary hearing was proper.

Evidence Code section 1291, subdivision (a)(2), reads:

“(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and:

“․

“(2) The party against whom the former testimony is offered was a party to the action or 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 he has at the hearing.”

Evidence Code section 240, subdivision (a)(5), describes an unavailable witness as:  “Absent from the hearing and the proponent of his statement has exercised reasonable diligence but has been unable to procure his attendance by the court's process.”   The trial court made its ruling based on the facts it found to be true that the prosecutor had made every effort to get Lawana back for the trial and she did not come back.

In People v. Forgason, 99 Cal.App.3d 356, 160 Cal.Rptr. 263, the court stated at page 362, 160 Cal.Rptr. 263:

“ ‘ “ ‘Whether [reasonable or] due diligence has been shown is a factual question to be determined according to the circumstances of each case.’ ” '   [Citation.]  ‘The term is incapable of a mechanical definition.’  [Citation.]  It is sometimes said that a party's burden is ‘ “to show that it made a good faith effort, with reasonable diligence, to procure the attendance” ’ of the witness.  [Citations.]  More often it is simply held that there must have been a ‘good-faith effort’ to obtain the witness' presence at trial.  [Citations.]  Such an effort will be established only by evidence of a ‘substantial character’ [citation], and it must, in any event, be ‘ “something more than a desultory and indifferent search’ ” [citations].

“․ The requirement of diligence ‘is a stringent one for the prosecution.’   [Citation.]”

Mere absence from the state is not enough to use Evidence Code section 1291 to authorize the admission of previous testimony of witnesses, there must be a showing of unavailability (People v. Woods, 265 Cal.App.2d 712, 715, 71 Cal.Rptr. 583).   I find no authority, however, which requires the pro forma step of attempting to subpoena a party where the evidence shows that would serve no useful purpose and would be an idle act.

In an analysis of the prosecutor's diligence, one should bear in mind the problems involved in getting a subpoena issued and served on a witness residing in another state.   California and Ohio have adopted the “Uniform Act to Secure Attendance of Witnesses Without the State in Criminal Cases” (Pen.Code, § 1334 et seq.), but it is not a simple process.

“If a judge of a court of record in any state, which by its laws has made provision for commanding persons within that state to attend and testify in this state, issues a certificate under the seal of the court that there is a criminal prosecution pending in the court, or that there is a grand jury investigation, that a person within this state is a material witness in such prosecution or grand jury investigation, and that his presence will be required for a specified number of days, then, upon presentation of the certificate to a judge of a court of record in the county in which the person is, a time and place for a hearing shall be fixed by the judge and he shall make an order directing the witness to appear at the hearing.

“․

“If the judge at the hearing, is satisfied of the desirability of the custody and delivery, for which determination the certificate shall be prima facie proof of this desirability, he may, in lieu of issuing subpoena, order that the witness be forthwith taken into custody and delivered to an officer of the requesting state.”  (Pen.Code, § 1334.2.)

A certificate must first be obtained from the California court and forwarded to Ohio where the witness is entitled to notice and a hearing on the issuance of a subpoena.   Since the witness here is a minor, a guardianship or some parental cooperation would be required.   She would be entitled to counsel and counsel would undoubtedly be entitled to time to study the facts and obtain psychiatric or social studies to present to the court in Ohio.

The folly of requiring the prosecutor to initiate such proceedings for an out-of-state subpoena under the facts of this case is apparent.   The last minute switch in the child's and parent's willingness to cooperate and the amount of time available to accomplish service are elements here.

Lawana was in her tenth and eleventh years of age when these crimes found by the jury to have been committed were accomplished.

The prosecutor testified he had subpoenaed Lawana's attendance at the trial which was scheduled for August 14, 1980.   A continuance was granted to August 21.   The prosecutor kept in touch with the child's mother by telephone and was assured the child would be in attendance.   When a courtroom was unavailable on August 21, a second continuance was granted to August 26.   By telephone on Thursday or Friday, the 21st or 22nd, Lawana's mother acknowledged to the prosecutor she and the child would be in his office at 8:30 in the morning of the 26th to prepare for trial.   On Monday, August 25, the day before this scheduled date for trial, the mother called and said she had sent the child to Ohio the day before to stay with her grandmother because of the child's erratic behavior and for fear the child would run away.   The pressure of the trial, peer pressure and anxiety of having to testify was upsetting the child tremendously.   Lawana assured her mother if she was forced to testify again she would run away and her mother believed she would never see Lawana again.   Lawana had received counseling about her fear of testifying.   That same week of August 25, the prosecutor made arrangements to have Lawana flown back and prepaid the airfare.   Up to this time, the prosecutor had no reason to believe the child would not return to testify.   On August 26, the case was again trailed until September 2.   Later in the week, however, the prosecutor received a telephone call from the child's grandmother in Ohio who said Lawana was nearing hysteria over the thought of coming back to testify.   She said the girl absolutely refused to return and under no circumstance could she go back to San Diego.   So far as the record shows, this is the first time the prosecutor was informed of Lawana's refusal to testify.

The prosecutor had from some time after August 25, when the grandmother told him the child would not come to San Diego, until the date of trial, perhaps as much as seven days, to get an out-of-state subpoena issued and transport the child to California.   It must be borne in mind that at this time the case was trailing.   It is not reasonable to expect the prosecutor to comply with the requirements of Penal Code section 1334 et seq., given the time that actually transpired before the case was called.   It would have been difficult with a cooperative witness.   Lawana was not cooperative and was threatening to run away from home.   The experts at the hearing here indicated she had social and psychiatric problems and to have a court in Ohio give notice, appoint a guardian, secure counsel for her, allow time for studies there to be developed or experts flown there to assist counsel, would have taken weeks if not months.   There is no realistic way this could be accomplished in the time frame the People had.

The majority points out an Ohio judge undoubtedly would have issued the subpoena and that may well be true even though the Ohio court must find “it will not cause undue hardship to the witness to be compelled to attend” (Pen.Code, § 1334.2).   However, it is not at all likely that would have been effective even if it could have been accomplished in the time available.   Lawana had repeatedly said she would run away if made to testify again.   In my view, it would be extremely unlikely, moreover, the Ohio court would have ordered the delivery of a reluctant 12-year-old into the hands of a California officer for forced custodial redelivery to California and, under the circumstances here, that would have been the only way her return would have been assured since she had run away before and was threatening to do so again.

In re Terry, 4 Cal.3d 911, 931, 95 Cal.Rptr. 31, 484 P.2d 1375, relied on by the majority, is distinguishable because that case did not involve the same time restrictions as here.   The need for the out-of-state subpoena was known from the outset by reason of the father's total opposition to having the children present.   The prosecutor knew from October to the trial date on the following January 28 he would not have the cooperation from the father, and yet made no effort to serve the children in Virginia.   His efforts to serve the children in California were meaningless and he should have known they would be because he knew they resided in Virginia.   The prosecutor in Terry had time but made no effort to secure an out-of-state service.

I believe there is substantial evidence here supporting the court's finding the prosecutor exercised reasonable diligence to obtain the presence of the child, and his failure was frustrated by the determination of the child not to appear and the eleventh hour support of the family to aid her in avoiding an appearance.   To hold a greater showing is required would be to substitute our judgment for that of the trial court.

In view of the defendant's right to a speedy trial, a waiver of the statutory rights under Penal Code section 1382 would not be expected and indeed would not be appropriate.

The court in Owens v. Superior Court, 28 Cal.3d 238, at page 252, footnote 14, 168 Cal.Rptr. 466, 617 P.2d 1098, said “[t]he district attorney's concerns for his witnesses' schedules and the county's funds [in effecting service] may be otherwise commendable but do not rise to the level of good cause to avoid a dismissal under section 1382.   An accused's trial may not be postponed beyond the statutory period merely to accommodate the convenience of prosecution witnesses.”

In Owens, supra, at pages 251 to 253, 168 Cal.Rptr. 466, 617 P.2d 1098, the court criticized the prosecution's meager attempts to locate witnesses and the fact he never served the witnesses though he apparently knew where they were.   Here, however, the prosecutor did effect service and kept in continued telephonic communication with them, getting assurances of their willingness to appear at trial.   It was the surprise reversal of the witnesses' position on the day before trial which caught the prosecutor off guard here.   The failure to repeat service was not a significant fact, because for some time even after the witnesses' departure from the state, while the case was trailing the prosecutor had assurances the child would return and even bought her ticket.   At this point, however, it was too late.

What should the prosecutor do to protect himself—require the witnesses to show up on the day trial is scheduled though both the People and the defendant know there will be a continuance?   When the court advises counsel a courtroom will not be available and the case will trail, are we to require all witnesses nevertheless to appear in court and orally make their promise to reappear when called?   How far must the prosecutor go in assuring the presence of a witness who professes to be cooperative?   If there has been service of the subpoena and continuances as here present, the court is well able to ascertain as a factual matter whether the witness was sincere, whether prosecutor was justified in relying on her representations, and whether under the circumstances he exercised due diligence.   If anything would cause a cooperative witness to take off, repeated unnecessary appearances in court would (see People v. Forgason, supra, 99 Cal.App.3d 356, 363, 160 Cal.Rptr. 263).   This victim has been injured enough by the crime.   Can we not accommodate her to some degree by allowing her to promise the district attorney rather than the court directly?   Here is the ultimate example of how repeated continuances have prolonged the agony of her experience and heightened anxiety to a point where it resulted in real hysteria.   It is apparent what unnecessary trips to the courthouse would do.   Must our compassion for her burden be subordinated by the threat of dismissal of the charges for the prosecution's failure to keep his witnesses under a continued court order?

The majority suggests the prosecutor could dismiss charges and start anew after trying to effect an out-of-state service.   I suggest that is not a proper resolution.   It is unfair to the defendant, the prosecution and to the witnesses.   In addition, it returns us to the identical position if the new case results in a continuance or goes on a trailing calendar.

Due diligence in securing the attendance of witnesses is a factual question and I believe there is substantial evidence here to uphold the finding of the trial court that the prosecutor exercised reasonable diligence to obtain the witnesses' presence.

I would affirm the judgment.

FOOTNOTES

1.   All references are to the Evidence Code unless otherwise specified.

2.   Interestingly, Herrera attempted to waive time for trial on June 25, 1980 but this was opposed by the prosecutor who insisted on a trial date of August 14, 1980.   On that date, with the victim under subpoena and, according to the representation of the prosecutor, available to testify, the prosecutor asked for a trial continuance and Herrera waived time.   He again waived, August 21, 1980 when, at the prosecutor's request, the trial was again continued.   Lawana was still unavailable on that date.

3.   The prosecution in Terry, as here, introduced evidence of the potential emotional hardship which each child would suffer if forced to attend.   The report of a psychiatrist and a report of two psychologists related to matters which, the Supreme Court commented, did not prevent either from testifying at the preliminary hearing, and did not show the futility of resorting to the Uniform Act.

4.   The dissent apparently ignores Penal Code section 1382, which permits the court to grant a trial continuance beyond the statutory period on a showing of good cause by the prosecutor.   Where good cause exists it will overcome a defendant's right to a speedy trial in the absence of actual prejudice, this personal right not rising to the status of fundamental, favored constitutional guarantees such as right to assistance of counsel (People v. Wilson, 60 Cal.2d 139, 32 Cal.Rptr. 44, 383 P.2d 452), and confrontation (Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923).The due diligence required to be entitled to a continuance to procure a material witness is only that the prosecutor show reasonable attempts to secure timely attendance by legal means.  (Owens v. Superior Court, supra, 28 Cal.3d 238, 251, 32 Cal.Rptr. 44, 383 P.2d 452.)   We contrast this requirement of diligence in order to gain time to secure a witness whose unexpected absence is due to no fault or negligence of the prosecutor, with that required to be shown before a defendant's fundamental right of confrontation may be denied by dispensing with the prosecution's need to produce the witness at all.In the latter situation, the prosecutor's due diligence is measured by his good faith efforts after learning the witness will not appear voluntarily.   Where the witness is belatedly found to be out of state, due diligence requires the prosecutor resort to the Uniform Act even though the discovery is on the eve of trial and the witness refuses the prosecutor's telephonic request to voluntarily return.  (In re Montgomery, 2 Cal.3d 863, 87 Cal.Rptr. 695, 471 P.2d 15.)   Nothing less will satisfy the due diligence showing required to show a witness is not amenable to the court's process, and therefore “unavailable” for the purposes of section 240, subdivision (a)(5).

WORK, Associate Justice.

WIENER, J., concurs.