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Name: People v. Foy
Case #: A141073
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 03/01/2016

Out-of-state witness was not unavailable for Sixth Amendment purposes because the People did not attempt to secure her presence via the Uniform Act to Secure the Attendance of Witnesses from without the State in Criminal Cases (Pen. Code, § 1334.3, subd. (a)). Foy and his codefendant, Rackley, were charged with multiple counts of robbery and various enhancements. Before trial, Foy moved to exclude the admission of a witness’s prior testimony on Sixth Amendment confrontation grounds. The trial court found the witness unavailable because she lived out of state, denied the motion, and admitted the former testimony. The jury convicted Foy. He appealed. Held: Reversed. A witness’s former testimony is admissible if she is unavailable and was previously subject to cross-examination. Under the confrontation clause, a witness is not unavailable solely because she lives out of state. (See Barber v. Page (1968) 390 U.S. 719.) Furthermore, unavailability in the constitutional sense requires a determination that the prosecution satisfied its obligation of good faith in attempting to obtain the witness’s presence. (Id. at pp. 724-725; People v. Herrera (2010) 49 Cal.4th 613.) The prosecution’s efforts in this case fell short because it failed to use the Uniform Act to compel an out of state witness’s attendance. (See People v. Masters (1982) 134 Cal.App.3d 509, 526-528; People v. Blackwood (1983) 138 Cal.App.3d 939, 946-947.) Reversal was required because the error was prejudicial under Chapman v. California (1967) 386 U.S. 18, 24.

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