Trial court did not abuse its discretion or violate the defendant’s constitutional rights by ordering a conditional examination and release of a material prosecution witness. Garcia was charged with human trafficking accomplished by means of force or fear (Pen. Code, § 236.1, subds. (c)(1), (c)(2)) and pimping a 14-year-old female (Pen. Code, § 266h, subd. (b)(2)). The trial court denied defense requests to continue to detain the minor as a material witness (Pen. Code, § 1332) and ordered her conditional examination (Pen. Code, § 1336). At trial, the court found the minor witness unavailable and admitted a video of her conditional examination. Garcia was convicted. On appeal, he argued his constitutional rights to confrontation, cross-examination, and due process were violated. Held: Affirmed. The state and federal Constitutions guarantee a criminal defendant the right to confront the prosecution’s witnesses. However, there are exceptions. In California, evidence of former testimony is admissible if the declarant is unavailable as a witness and the defendant against whom the testimony is offered was a party to the action in which the testimony was given and had the opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the current hearing (Evid. Code, § 1291, subd. (a)(2)). The California Constitution also provides that a material witness shall not be unreasonably detained. There are a number of factors the trial court must consider in deciding whether to detain a material witness to secure her presence at trial pursuant to Penal Code section 1332 (set forth in In re Francisco M. (2001) 86 Cal.App.4th 1061), all of which were properly weighed by the trial court when it decided to commit the minor and then release her and order a conditional examination. The trial court also did not err in granting the conditional examination so that the minor could return to her home, which was out of state.
The trial court did not abuse its discretion in admitting the conditional examination at defendant’s trial. Garcia also argued that he was prejudiced by the admission of the conditional examination because his attorney did not have enough time to prepare and because materials obtained after the conditional examination could have been used to cross-examine the witness. The Court of Appeal disagreed. Defense counsel was given 10 days to prepare for the conditional examination. Garcia’s attorney did not argue that he had insufficient time to review the then-existing discovery or to pursue adequate investigation to prepare for the examination. Although Garcia referred to certain evidentiary items he learned of after the examination and claimed these could have been used for impeachment, the documents described had little, if any, evidentiary value, even if counsel might have questioned the minor about them.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/G050268M.PDF