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Name: People v. Ayala (2024) 101 Cal.App.5th 62
Case #: D082754
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 03/29/2024

The prosecution did not exercise due diligence, and therefore should not have been permitted to admit the former testimony of an absent witness, when the search for the witness was untimely and the witness was essential to the prosecution’s case. Defendants Ayala and Ramirez were charged with murder. They had never met the victim before, but the victim had been threatening Breanna S., who had just begun staying in Ayala’s R.V. Breanna had testified for the People at the preliminary hearing, but had gone missing at least two years before trial. Two weeks before trial, the People began an unsuccessful search for her. Over objection, Breanna’s preliminary hearing testimony was read to the jury. Defendants were convicted and appealed. Held: Reversed. The preliminary hearing testimony of an “unavailable witness” may be admitted at trial without violating a defendant’s confrontation right (codified at Evid. Code, § 1291). A witness is unavailable when the witness is absent from the hearing and the proponent of the testimony exercised reasonable diligence in attempting to procure the witness’s attendance. (Evid. Code, § 240(a)(5).) Factors in showing reasonable diligence include the timeliness of the search, the importance of the witness’s testimony, and whether leads to the witness’s possible location were reasonably explored. If a witness is critical, the search must be started sooner and pursued with more energy than if the witness is less significant. Although the prosecution exercised diligence during the two weeks it searched for Breanna, the search was untimely, and Breanna was key to the prosecution’s case. Therefore, Breanna was not an unavailable witness and the trial court erred by admitting her preliminary hearing testimony.