People v. Volk

• Decision Date: 16 October 1963
• Docket Number: Cr. 3435
• Citation: 221 Cal.App.2d 291,34 Cal.Rptr. 351
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Otto VOLK, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 351

34 Cal.Rptr. 351

221 Cal.App.2d 291

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Otto VOLK, Defendant and Appellant.

Cr. 3435.

District Court of Appeal, Third District, California.

Oct. 16, 1963.

W. Jackson Willoughby, III, Sacramento, under appointment by the Third District Court of Appeal, for appellant.

Stanley Mosk, Atty. Gen., by Doris Maier, Asst. Atty. Gen., and Roger Venturi, Deputy Atty. Gen., Sacramento, for respondent.

SCHOTTKY, Justice.

Robert Volk was found guilty by a jury of the crime of robbery in the first degree. His motion for a new trial was denied and he has appealed from the judgment and from the order denying his motion for a new trial. The order being nonappealable the purported appeal therefrom is hereby dismissed.

Appellant does not attack the sufficiency of the evidence to support the judgment so it is unnecessary to detail the evidence. Appellant does, however, make a vigorous attack on the admission into evidence of the testimony of Joyce Volk, also known by other names, given at the preliminary examination. This testimony was the strongest evidence against appellant, because while the victim of the robbery identified appellant as the man who entered the office and forced him to lie face down on the floor, he was far from sure; and it is difficult to believe that appellant would have been found guilty without the testimony of Joyce.

Appellant contends that the court erred in finding due diligence in an effort to locate a missing witness, Joyce Volk, through contacts through whom she said she could be located.

The respondent in reply contends that the court's finding was based upon facts sufficient to establish the exercise of due diligence to locate the witness.

Section 686 of the Penal Code provides: 'In a criminal action the defendant is entitled:

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'3. * * * [T]o be confronted with the witnesses against him, in the presence of the court, except that where the charge has been preliminarily examined before a committing magistrate and the testimony taken down by question and answer in the presence of the defendant, who has * * * cross-examined or had an opportunity to cross-examine the witness, the deposition of such witness may be read, upon its being satisfactorily shown to the court that be * * * can not with due diligence be found within the state; * * *.'

The term 'due diligence,' as contemplated by the statute, is a relative term which is incapable of a precise or an exact definition. The circumstances of each case must stand as the criteria by which the courts must determine whether the amount of diligence required has been shown. (People v. Johnson, 13 Cal.App. 776, 779, 110 P. 965; People v. Land, 137 Cal.App. 196, 198, 30 P.2d 433.) As stated in People v. Gardner, 192 Cal.App.2d 357, 366-367, 13 Cal.Rptr. 477, 483:

"The question of what constitutes due diligence to secure the presence of a witness which will authorize the reading to the jury of testimony taken at the preliminary hearing of the case is largely within the discretion of the trial court, and depends upon the facts of each particular case. The decision of a trial judge on the question of diligence and of the propriety of receiving or rejecting the evidence will not be disturbed on appeal unless it appears that there was an abuse of discretion. [Citations.] The problem is primarily for the trial court, and its solution will not be disturbed if there is evidence of substantial character to support its conclusion.' [Citations.]'

The record in the case at bench presents a most interesting question as to whether due diligence was exercised to secure the presence of Joyce Volk at the trial. It appears from the record that she was an itinerant, without any permanent employment or address who frequented the local bars and acquired her support as best she could. The search for the witness extended over the time from August 28, 1962, until the time of trial on October 16, 1962. The search was intensified upon the October 6th request of the district attorney to find the witness. A subpoena was issued on October 10th and service was attempted until the time of trial.

The officers, separately and repeatedly, checked the following places: the bars which were known to be frequented by her; all the hotels in the area; the witness' two previous addresses; the city directory; the city and county jails; the Bureau of Criminal Identification and Investigation; the city and the county police identification bureaus; the California Hotel, where the witness had stayed pending the preliminary hearing; and checked with a friend of the witness who thought she was living near 10th Street in Sacramento. They also talked with the bartenders who knew her; inquired at the restaurants she was known to frequent; and sent an all-points bulletin, all to no avail.

The record also shows that Mr. Brownston, counsel for Volk's codefendant, had hired a private detective to investigate the witness; and that defense counsel had personally seen the witness in his office and had her make a sworn statement on September 20, 1962, a day subsequent to the preliminary hearing. He stated that he had intended to subpoena her should the district attorney not call her. Defense counsel had also, unsuccessfully, attempted to locate her after the date of their meeting.

The appellant points out that the record also shows that Joyce Volk had given a statement to the district attorney prior to the preliminary examination in which she stated that she had a friend, Alfred Anderson, who resided at 2115 'G' Street in Sacramento, through whom she could be reached, and also that she could be contacted through the Arch Cafe. They point out that the record does not show that any attempt was made to locate her through these sources, and also that although she testified at the preliminary examination that she resided in North Sacramento, no effort was made to locate her there.

One of the fundamental rights of a defendant in a criminal case is the right to be confronted with the witnesses whose testimony is used against him. Courts should protect this right zealously. Testimony given at a preliminary examination should not be used against him at the trial unless it satisfactorily appears that he has had an opportunity to cross-examine the witness at the preliminary examination, and unless it is satisfactorily shown to the court that the witness cannot with due diligence be found within the state. (Pen.Code, sec. 686.) In the case at bench, the record establishes that the cross-examination of Joyce Volk at the preliminary examination was thorough and complete. The prosecution's direct examination, in which all the facts known to the witness concerning the crime were disclosed, consisted of 13 pages of direct testimony, omitting the objections and rulings made at the preliminary hearing. The cross-examination conducted for the appellant by his own counsel, Mr. Salamy, covers 24 pages, and the cross-examination conducted by Mr. Brownston in behalf of codefendant Lonnevick covers an additional 19 pages.

As hereinbefore stated, the question of whether due diligence was exercised to find the witness is one primarily for the trial court, and the decision of the trial court will not be disturbed unless the record shows an abuse of discretion. We have studied the record carefully and are convinced that there is evidence of a substantial nature to support the conclusion of the trial court that under all the peculiar circumstances of the case at bench due diligence was exercised to produce the witness, Joyce Volk, at the trial.

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