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Name: People v. Cogswell
Case #: D049038
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 10/31/2007
Subsequent History: 2/13/08: rev. granted (S158898)

Reversal was required where the prosecution did not fully utilize the Uniform Act to Secure the Attendance of Witnesses in order to secure the victim’s presence at trial. On appeal from his convictions for multiple forcible sex offenses, appellant contended that the trial court erred in allowing the prior testimony of the victim at trial. He contended that the prosecution did not show due diligence in attempting to secure the victim’s presence at trial and did not fully utilize the Uniform Act to Secure the Attendance of Witnesses (Uniform Act). The appellate court agreed and reversed. The issue here is whether in seeking the attendance at trial of an out-of-state victim of a sexual assault, Code of Civil Procedure section 1219, subdivision (b), forbids a California court from requesting pursuant to the Uniform Act that the victim be taken into immediate custody and delivered to a California state officer to assure the victim’s attendance. The appellate court concluded that it does not limit the power of a California court to utilize the provisions of the Uniform Act. It only restricts the power of a court to use incarceration as a means of securing testimony or punishing a refusal to testify. The prosecution need not take every victim into custody to show reasonable diligence. But here, the prosecution was on notice that the victim would not return to California even if ordered to do so. Reversal was required because the victim was an essential witness in this case and the prosecution did not use every reasonable means to secure her attendance. The trial court did not err when it admitted evidence of prior sex offenses. Appellant also argued that the trial court erred when it admitted the testimony of appellant’s prior girlfriend that he sexually assaulted her. The appellate court rejected that argument, finding that the offenses were admissible under Evidence Code section 1108(a). Appellant had pled guilty to a crime against the witness, and although the offenses occurred five years earlier, appellant had been in prison during the intervening years.