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Name: People v. Cogswell
Case #: S158898
Court: CA Supreme Court
District CalSup
Opinion Date: 04/01/2010

In a sexual assault case, the prosecution is not required to invoke the custody-and-delivery provision of the interstate Uniform Act to Secure Attendance of Witnesses [Act] to show witness unavailability for the purpose of introducing preliminary hearing testimony at trial. During a visit to California, the victim was sexually assaulted by appellant. She testified at the preliminary hearing but refused to return to testify at trial, despite receiving a subpoena obtained through the Act, and charges were dismissed. At the second trial, she again refused to return, again despite a subpoena, and the court, finding her unavailable, permitted the prosecution to introduce the preliminary hearing testimony. Appellant was convicted of two counts of rape and “strikes,” and sentenced to consecutive terms of 50 years to life. Appellant argued that it was error to permit the testimony because the prosecution, by failing to invoke the custody-and-delivery provision of the Act, had not exercised reasonable diligence in securing the victim for trial. On review, the Supreme Court considered the interplay between the Act, Evidence Code sections 240 and 1219, permitting admission of former testimony of an “unavailable” witness, and Code of Civil Procedure section 1219 prohibiting the imprisonment of a sexual assault victim for contempt for refusing to testify. The Court observed that even if the victim had been taken into custody and returned to California under the authority of the Act, under CCP section 1219, she could not be held in custody if she then refused to testify. Here, the prosecutor, having communicated directly with the victim, would have been able to assess the strength of her determination not to testify and the potential futility of invoking the custody-and-delivery provision of the Act. In determining that she would refuse to testify despite being brought back to California, he effectively exercised reasonable diligence in securing her testimony and when he was unsuccessful, it was not error to permit him to rely on her testimony from the preliminary hearing.