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Name: Pulido v. Superior Court (Los Angeles)
Case #: B250802
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 12/10/2013

The statutory procedures for obtaining an order to examine a material witness residing out of state (Pen. Code, § 1349 et seq.) apply in postconviction proceedings. In 2002, Pulido was convicted of violent offenses against victim Cardenas. At trial, Cardenas repeatedly identified Pulido as the shooter and stated he was telling the truth. He acknowledged that he had recanted the day before his testimony, explaining that he had been scared. In a 2008 declaration, Cardenas recanted his identification testimony and explained that the police and others intimidated him into testifying against Pulido. Pulido filed a habeas petition asserting his actual innocence. Prior to an evidentiary hearing, Pulido filed a motion requesting that Cardenas (who then resided in Mexico) be examined as a material witness on a commission under sections 1349 to 1351. The trial court denied the motion and Pulido petitioned for writ of mandate. Held: Petition denied. Sections 1349 to 1362 set forth the procedures for examining an out-of-state witness on an issue of fact arising in a pending criminal action. While the statutes reference “trial” proceedings and there is no authority applying those sections to postconviction proceedings, the Court of Appeal found the statutes apply in such matters where there is an issue of fact and the examination is necessary to the attainment of justice. However, the trial court did not abuse its discretion by ruling that Pulido failed to demonstrate that Cardenas’ examination would assist the trier of fact. The jury heard Cardenas’ conflicting stories and believed his trial testimony that Pulido was the shooter.