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Name: People v. Dunn
Case #: D058407
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 05/07/2012

The trial court properly denied a motion for mistrial based on the failure of the defense expert to appear for trial because the witness’s absence did not irreparably damage the defendant’s ability to receive a fair trial. A jury convicted appellant of having sexual intercourse with a child (Pen. Code, § 288.7, subd. (a)) and committing a lewd act (§ 288, subd. (a)). Findings were made that appellant engaged in substantial sexual conduct (§ 1203.066, subd. (a)(8)) and inflicted great bodily injury. At the end of the prosecution’s case the defense moved for a mistrial when the defense medical expert failed to appear for trial. The court denied the motion. The Court of Appeal affirmed. A motion for mistrial is appropriately granted “only when a party’s chances of receiving a fair trial have been irreparably damaged.” Relevant factors are whether the defendant exercised due diligence in securing the attendance of the witness, whether the defense tried an alternative method of obtaining the desired evidence, whether it was defendant’s fault the witness failed to appear, and the nature and possible effect of the proposed testimony on the outcome of the trial. Here, the defense did not use alternative means to secure the testimony. Further, the defense was at least partially at fault for the witness’s failure to appear and the prosecution bore no such responsibility. Most importantly, the expert’s testimony would not have altered the outcome of the trial. Defense counsel was not ineffective for failing to subpoena the expert; there was no prejudice because the absence of the expert’s testimony did not affect the outcome of the trial.