People v. Ware

• Decision Date: 17 March 1978
• Docket Number: Cr. 16043
• Citation: 78 Cal.App.3d 822,144 Cal.Rptr. 354
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Floyd K. WARE, Defendant and Appellant.

Page 354

144 Cal.Rptr. 354

78 Cal.App.3d 822

The PEOPLE of the State of California, Plaintiff and Respondent, v. Floyd K. WARE, Defendant and Appellant.

Cr. 16043.

Court of Appeal, First District, Division 1, California.

March 17, 1978.

Hearing Denied May 11, 1978.

Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Asst. Public Defender, Ezra Hendon, Dennis P. Riordan, Deputy Public Defenders, San Francisco, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Charles M. Buzzell, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

KELLY, ^* Associate Justice.

The appellant is seeking a reversal from a conviction of nine felony charges. Six of the charges arose from the alleged sexual assault and robbery of Angela O. on May 4, 1976. The information (No. 92369) on this incident was filed June 2, 1976. The remaining three felony charges arose from the alleged assault, false imprisonment and burglary on May 8, 1976 of Kathleen S. This information (No. 92450) was filed June 11, 1976. Three prior felony convictions were alleged in the informations. ¹ The charges under the separate informations were consolidated for trial.

With respect to the incident involving Angela O., the summary of her testimony at the preliminary hearing is as follows:

On May 4, 1976, she drove her car into the garage of an apartment in the Pacific Heights area of San Francisco at approximately 1:50 a. m. where she was staying with a friend, Marlene, while visiting in the United States. After parking the car she proceeded to walk to the apartment. At the garage entrance she noticed a man whom she identified as the defendant. He approached her, knocked her to the ground and threatened her with a knife. He said " 'if you scream again I will cut your throat.' " She offered to give him $600 that she had in the apartment.

Before they reached the apartment, however, Marlene, who had heard the screams, had phoned the police. She did not have a chance to talk to them prior to Angela's knock on the door. Although Marlene hung up the phone, the police emergency called her back and she reported the incident. Angela instructed her to slip the money under the door, which she did, and which the assailant then took. Marlene could partially see the defendant through the peephole and testified at trial that the defendant resembled the man at the door. She also testified that Angela had told her that the defendant wore a distinctive jacket.

The defendant then walked Angela three-fourths of a block to Steiner Street. He threatened to cut her throat if she made any noise. On Steiner Street he forcibly took her into a doorway where he committed the sexual assault with which he was charged. After taking some money from her purse, the defendant fled. A physical examination of Angela shortly after the attack revealed that her vaginal area contained sperm.

A preliminary hearing was held in the municipal court on May 18, 1976. At that time defense counsel requested a week's continuance to further investigate the matter in order to cross-examine Angela O. at the preliminary hearing. ² The motion was denied because Angela was within a few days of leaving the jurisdiction to return to her home in Spain and would not be available for trial. This fact was known to both attorneys prior to and at the time of the preliminary. Angela was subjected to both direct and cross-examination. The preliminary transcript runs some 75 pages, evenly divided between direct and cross-examination.

Because she was leaving for Spain within a few days after the scheduled preliminary examination and "will be unable to be present at the time this matter is tried," the court at the preliminary hearing under the authority of People v. Moran (1974) 39 Cal.App.3d 398, 114 Cal.Rptr. 413, ruled that videotaping of her testimony at the preliminary was proper under the circumstances. ³ At trial, the videotape of her testimony at the preliminary hearing was admitted into evidence and played for the jury over the objections of defense counsel. There was no argument or disagreement on the part of any of the parties that Angela was in fact in Spain. In addition, the prosecution witness, Angela's friend Marlene, testified she was in correspondence with Angela in Spain at the time of the trial.

The appellant contends that the admission at the trial of the videotaped testimony of Angela O. at the preliminary hearing was improper because the prosecution did not meet the foundational requirements of Evidence Code sections 1291 and 240. He also contends that the admission of such testimony deprived him of his constitutional right to confront the witnesses against him. Evidence Code section 1291 sets forth, as an exception to the hearsay rule, that "Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness."

A review of the facts shows the following: On May 14, the case was assigned to defendant's attorney. Defendant was first interviewed on the following day. On Monday, May 17, the attorney received the police report and discussed it with the defendant that afternoon. The preliminary hearing was conducted on the following day. At that time the defense attorney requested a delay of one week which was denied because Angela would be unavailable for trial since she was returning to her home in Spain. The trial judge also held that videotaping was proper in the circumstances.

At the trial, which commenced on July 26, defendant's attorney renewed his objection to the introduction of the videotaped testimony on the ground that he had inadequate time to prepare for cross-examination. The attorney also objected to its introduction because the prosecution had not attempted to contact Angela to secure her testimony at the trial. The trial court permitted the jury to hear the videotape and commented that the preliminary hearing amounted to a "conditional examination under the totality of the circumstances."

With respect to the court's comment that the preliminary hearing amounted to a "conditional examination under the totality of the circumstances," Penal Code sections 1335-1345 set forth the specific requirements which must be followed for conditional examination of unavailable witnesses. The prosecution could have sought such a motion in this case. Penal Code section 1338 provides that the defendant's attorney is to receive three days' notice of the date of the conditional examination. The prosecution did not formally comply with that condition. However, the prosecutor stated that he had advised the public defender's office (defense counsel) during the preceding week that he intended to videotape the preliminary hearing because Angela was returning to Spain. ⁴ This court is satisfied that the substance of Penal Code section 1335 et seq. re conditional examination was satisfied and that the court's ruling that the preliminary hearing amounted to a "conditional examination under the totality of the circumstances" is correct.

The appellant further asserts that even if this was a "conditional examination" the introduction of the videotape was error because no finding was made that Angela was unavailable as a witness. Evidence Code section 240 defines an unavailable witness as follows:

"(a) Except as otherwise provided in subdivision (b), 'unavailable as a witness' means that the declarant is:

"(1) Exempted or precluded on the ground of privilege from testifying concerning the matter to which his statement is relevant;

"(2) Disqualified from testifying to the matter;

"(3) Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity;

"(4) Absent from the hearing and the court is unable to compel his attendance by its process; or

"(5) 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.

"(b) A declarant is not unavailable as a witness if the exemption, preclusion, disqualification, death, inability, or absence of the declarant was brought about by the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the declarant from attending or testifying." (The subdivision we have emphasized is specifically applicable to Angela O.) This section is applicable to conditional examinations (Pen.Code, § 1345) and to preliminary hearings (Evid.Code, § 1291.)

The thrust of appellant's position is that the videotaped testimony should not have been admitted because the prosecution did not comply with Evidence Code section 240 in that it failed to exercise "reasonable diligence" in attempting to secure Angela's presence at the trial. The respondent's reply is that due diligence is not a requirement of section 240, subdivision (a)(4). There appears to be no disagreement that Angela was factually and legally unavailable at the time of the trial and beyond the reach of the court's process. It is conceded that no showing was made by the prosecution in the court below to have Angela present at the trial, although the prosecution had her address and telephone number in Spain.

In the language of the appellant's brief the question before the court is one of law, i. e., is a showing of reasonable diligence to produce a witness required in instances where the witness is beyond the reach of the court's process, as set out in Evidence Code section 240, subdivision (a)(4)? On the facts of this case the court is satisfied that the appellant was not denied his right of confrontation by the procedures employed in this case.

The difference in the terminology expressed in Evidence Code section 240, subdivision (a)(4) and subdivision (a)(5) must be noted. Subdivision (a)(4) speaks in terms of the unavailability of a witness as one ...