Supreme Court of California Justia
Citation 48 Cal. 4th 467, 227 P.3d 409, 106 Cal. Rptr. 3d 850

People v. Cogswell

Filed 4/1/10

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S158898
v.
Ct.App. 4/1 D049038
HENRY IVAN COGSWELL,
San Diego County
Defendant and Appellant.
Super. Ct. No. SCN201693
____________________________________)

A witness‟s preliminary hearing testimony is admissible at trial if the
witness is “unavailable” despite the exercise of “reasonable diligence” by the party
seeking the witness‟s attendance. (Evid. Code, § 1291.) At issue is whether, to
show “reasonable diligence” in obtaining the presence at trial of a sexual assault
victim living outside California, the prosecution in this case had to ask a court to
order the victim taken into custody and transported to California to testify at
defendant‟s trial.
On a visit to California, a Colorado woman was sexually attacked. At the
preliminary hearing, she testified against defendant Henry Ivan Cogswell, her
attacker, but thereafter she refused to return to California to testify at his trial. The
prosecution then sought to compel her attendance at trial through a law that has
been adopted in all 50 states and is known as the Uniform Act to Secure the
Attendance of Witnesses from without the State in Criminal Cases. (Uniform Act;
Pen. Code, § 1334 et seq.) Under the Uniform Act, as adopted in California, a
1

party in a criminal case can ask a court in the state where an out-of-state material
witness is located to subpoena the witness and also to have the witness taken into
custody and brought to the prosecuting state to testify.
At the prosecution‟s request, a Colorado court issued a subpoena to the
sexual assault victim. When she did not appear at defendant‟s California trial, the
California trial court declared her to be unavailable as a witness, and it permitted
the prosecution to use the victim‟s preliminary hearing testimony as evidence at
defendant‟s trial. A jury convicted defendant of various sexual assaults. He
appealed.
The Court of Appeal disagreed with the trial court‟s determination of the
Colorado witness‟s unavailability. In the Court of Appeal‟s view, the prosecution
had not used reasonable diligence in securing her presence at defendant‟s
California trial because it did not avail itself of the Uniform Act‟s provision
allowing for an out-of-state material witness‟s detention and transportation to the
prosecuting state. Unlike the Court of Appeal, we conclude that the prosecution
did use reasonable diligence in obtaining the witness‟s presence.
I
Defendant was accused of sexually assaulting Lorene B., a Colorado
resident, while she was vacationing in California. Lorene returned to California to
testify at defendant‟s preliminary hearing, where she was thoroughly cross-
examined by defense counsel. Based on that testimony, defendant was held to
answer on the charged sexual offenses.
Because Lorene had previously been cooperative, the prosecution had not
subpoenaed her to testify at defendant‟s California trial. On the date of trial,
Lorene told the prosecution she would not testify against defendant. Without
Lorene‟s testimony at trial, the prosecution could proceed against defendant only
2

if it could use, as evidence of defendant‟s guilt, the testimony that Lorene had
previously given at the preliminary hearing.
Because the prosecution could not show that it had used reasonable
diligence in securing Lorene‟s attendance at defendant‟s trial (Evid. Code, § 240,
subd. (a)(5)), and because without such a showing it could not use at trial the
testimony that Lorene had given at the preliminary hearing, it asked the trial court
to dismiss the case. A new complaint against defendant was then filed. The
parties stipulated that defendant could be held to answer on the complaint and that
the complaint could be deemed the information. The case was set for trial on
December 20, 2005.
On November 2, 2005, the prosecution asked the San Diego Superior Court
that, in accordance with the Uniform Act, a request be made to the Denver District
Court in Colorado for the issuance of a subpoena to Lorene. The court did so. As
required under the Uniform Act, the subpoena request was accompanied by a
round-trip airplane ticket from Denver to San Diego, plus a daily allowance for
food and hotel expenses.
In mid-December 2005, the San Diego Superior Court vacated the
December 20 trial date, and set a new trial date for January 31, 2006. On
December 20, in a telephone call to the prosecution in California, Lorene said she
would not testify at defendant‟s trial. Thereafter, the prosecution made no further
efforts to contact Lorene, fearing that she would view this as “intimidation,” and
that if she were told about the new January 31, 2006, trial date before she had been
subpoenaed she would try to evade service of the subpoena. Instead, the
prosecution again asked the San Diego Superior Court to have the Denver,
Colorado court subpoena Lorene to appear as a material witness at defendant‟s
San Diego trial, rescheduled for January 31, 2006. Again, the request was
accompanied by a round-trip airplane ticket to San Diego and a daily allowance
3

for food and hotel expenses. The prosecution did not request, as permitted under
the Uniform Act, that Lorene be taken into custody and brought to San Diego to
testify.
The Denver, Colorado court issued the subpoena, and the Denver
District Attorney then confirmed that the subpoena was served on Lorene on
January 20, 2006, and that Lorene was given the requisite plane ticket and
witness fees.
When on February 1, 2006, the first day of defendant‟s trial in San Diego,
Lorene did not appear, the prosecution asked the trial court that, because Lorene
was “unavailable as a witness” (Evid. Code, § 1291, subd. (a)) notwithstanding the
prosecution‟s use of reasonable diligence in attempting to secure her presence (id.,
§ 240, subd. (a)(5)), the prosecution be allowed to use as evidence at defendant‟s
trial Lorene‟s previously given preliminary hearing testimony. The prosecutor
explained: “[Lorene] has stated to me and to my investigator . . . that she has had
as much of this matter as she can possibly handle. [¶] She‟s had contact from the
family members of the defendant, from her prior friends. Given the small nature
of the deaf community,[1] she lives in Colorado to escape what she has lived
through here. And she has emotional issues with coming back here to court. She
informed me prior to yesterday at the last trial call that she would not be here.”
Defendant objected, unsuccessfully, that the prosecution had not used reasonable
diligence to secure Lorene‟s attendance as a witness because of its failure to ask a
Colorado court to order that, as allowed under the Uniform Act, Lorene be taken
into custody and brought to San Diego to testify at defendant‟s trial.

1
Both defendant and Lorene are deaf.
4

Based primarily on Lorene‟s preliminary hearing testimony, the jury
convicted defendant as charged. In a bifurcated proceeding, the jury found that
defendant had a prior serious felony conviction (Pen. Code, §§ 667, subds. (a), (b)-
(i), 668), that he had served a prison term for that conviction and had not remained
free from any new offense for 10 years after his release (id., §§ 667.5, subd. (a),
667.6, subd. (a)), and that a previous conviction for forcible rape made him a
habitual sex offender (id., § 667.61, subds. (a), (c), (d)). The trial court sentenced
defendant to consecutive indeterminate terms of 50 years to life on two counts of
rape, and it imposed a consecutive term of five years for his prior serious felony
conviction. On the remaining counts, the court imposed concurrent sentences.
On appeal, defendant reiterated the argument he had made in the trial court
that to show reasonable diligence in securing Lorene‟s presence at trial, the
prosecution should have invoked the Uniform Act‟s custody-and-delivery
provision. The Attorney General responded that the prosecution could not resort
to that provision because Code of Civil Procedure section 1219‟s subdivision (b)
(hereafter section 1219(b)) prohibits the confinement of a sexual assault victim
who refuses to testify about the arrest. That provision states: “Notwithstanding
any other law, no court may imprison or otherwise confine or place in custody the
victim of a sexual assault . . . for contempt when the contempt consists of refusing
to testify concerning that sexual assault . . . .” (Ibid.)2
The Court of Appeal reversed defendant‟s convictions, holding that section
1219(b) “does not . . . limit the power of a California court to utilize the custody
and delivery provisions of the Uniform Act.” The purpose of section 1219(b), the

2
As discussed later, the Attorney General no longer argues that this
provision barred the prosecutor from asking that Lorene be taken into custody
under the provisions of the Uniform Act.
5

Court of Appeal stated, is to forbid the confinement of a sexual assault victim
based on “a finding of contempt arising from a refusal to testify.” (Italics added.)
But, the court explained, the “custody and delivery provision of the Uniform Act
is a device to assure the attendance of a witness at trial and not a punishment for
contempt arising from a refusal to testify.” Thus, the Court of Appeal held,
section 1219(b) “did not forbid the use of the act‟s custody and delivery provisions
to secure Lorene‟s attendance at trial.”
The Court of Appeal further stated that because “the prosecution was on
notice that it was highly probable Lorene would not return to California even if
ordered by a court to do so,” the prosecution did not use “every reasonable means
to secure her attendance and, therefore, did not exercise reasonable diligence” in
securing Lorene‟s presence at defendant‟s California trial. Therefore, the Court of
Appeal concluded, the trial court erred in declaring Lorene unavailable as a
witness and in allowing the prosecution to use at defendant‟s trial Lorene‟s
preliminary hearing testimony. This error, the Court of Appeal held, was
prejudicial, because without the use of that testimony at defendant‟s trial there was
no evidence of his guilt.
We granted the Attorney General‟s petition for review.
II
We here consider the interaction among four statutes: the Uniform Act,
which allows a prosecutor or a defendant in a criminal case to request that an out-
of-state witness be subpoenaed and be taken into custody and transported to the
prosecuting state in which trial is pending; Evidence Code sections 240 and 1292,
which permit the use of prior testimony by an unavailable declarant; and Code of
Civil Procedure section 1219(b), which prohibits the confinement of a sexual
assault victim for contempt based on a refusal to testify about the assault. A brief
review of each follows.
6

A. The Uniform Act
The Uniform Act was initially approved by the National Conference of
Commissioners on Uniform State Laws in 1931. The commissioners approved a
revised version of the act in 1936, which California adopted in 1937. There are
slight differences between the version of the Uniform Act adopted in Colorado
(Colo. Rev. Stats., § 16-9-201 et. seq.) — the state where sexual assault victim
Lorene was living at the time of the trial in this case — and the version adopted in
California (Pen. Code, § 1334 et seq.), but none is pertinent here.
Under the Uniform Act, as adopted in California, when a person located in
a sister state that has also adopted the Uniform Act is a “material witness” in a
“prosecution pending in” California, the judge of the court in which the
prosecution is pending “may issue a certificate . . . specifying the number of days
the witness will be required,” which “shall be presented to a judge of a court of
record in the county of such other state in which the witness is found.” (Pen.
Code, § 1334.3, subd. (a); see also Colo. Rev. Stats., § 16-9-203(1).) A witness
who travels by airplane is compensated for the flight, and a small allowance is
provided to cover the witness‟s expenses. (Pen. Code, § 1334.3, subd. (a); see also
Colo. Rev. Stats., § 16-9-203(2).) The witness is paid statutory witness fees, is
reimbursed “for any additional expenses of the witness which the judge . . . shall
find reasonable and necessary” (Pen. Code, § 1334.3; the Colo. law does not
contain this requirement), and may not be arrested or served with legal documents
while present in the state where the witness is testifying (Pen. Code, § 1334.4; see
also Colo. Rev. Stats., § 16-9-202 (2)).
Under the Uniform Act, a sister state court that receives a certificate
described in the preceding paragraph must direct the witness named on the
certificate to appear at a hearing. (Pen. Code, § 1334.2; see also Colo. Rev. Stats.,
§ 16-9-202(1).) If at that hearing the sister state court “determines that the witness
7

is material and necessary, that it will not cause undue hardship to the witness to be
compelled to attend and testify” (Pen. Code, § 1334.2), that “the laws of the state
in which the prosecution is pending” will give the witness protection from arrest
while the witness is present, and that the witness will be paid the fees mentioned in
the previous paragraph, the court “shall issue a subpoena . . . directing the witness
to attend and testify in the court where the prosecution is pending” (ibid.; see also
Colo. Rev. Stats., § 16-9-202(2)).
At issue here is a provision of the Uniform Act that permits a party in a
criminal case to ask the trial court to “recommend[] that the witness be taken into
immediate custody and delivered to an officer of this state to assure his or her
attendance in this state” (Pen. Code, § 1334.3, subd. (a); see also Colo. Rev. Stats.,
§ 16-9-202(3)), and that gives the court in the state where the witness is located
the power to act upon that recommendation. This provision of the Uniform Act
mirrors statutes in California and in most states allowing a trial court to order the
confinement of material witnesses to ensure their presence at trial. (See Pen.
Code, §§ 879, 881, 882; Studnicki, Material Witness Detention: Justice Served or
Denied? (1994) 40 Wayne L.Rev. 1533.)
B. Evidence Code sections 240 and 1291
Hearsay evidence, which is “evidence of a statement that was made other
than by a witness while testifying at the hearing and that is offered to prove the
truth of the matter stated” (Evid. Code, § 1200), is generally inadmissible in
California (id., subd. (a)). But there are several statutory exceptions. Pertinent
here is the one that allows admission at trial of a person‟s former testimony if that
person is “unavailable as a witness” and “[t]he party against whom the former
testimony is offered was a party to the action or proceeding in which the testimony
was given and had the right and opportunity to cross-examine the declarant with
8

an interest and motive similar to that which he has” at trial. (Id., § 1291, subd.
(a).) A witness is considered to be unavailable if “the proponent of his or her
statement has exercised reasonable diligence but has been unable to procure his or
her attendance by the court‟s process.” (Id., § 240, subd. (a)(5), italics added.)
C. Code of Civil Procedure section 1219
Code of Civil Procedure section 1219, originally enacted in 1872, provides
that when a person has been found in contempt of court for refusal to perform an
act that the person is capable of performing, the court may order the person jailed
until that act is performed. (In re Mark A. (2007) 156 Cal.App.4th 1124, 1143.)
Section 1219(b), added to section 1219 in 1984, stated at the time of defendant‟s
trial in this case: “Notwithstanding any other law, no court may imprison or
otherwise confine or place in custody the victim of a sexual assault for contempt
when the contempt consists of refusing to testify concerning that sexual assault.”
(Stats. 1993, ch. 219, § 69.7, p. 1587.) (After defendant‟s trial, the Legislature in
2008 amended section 1219(b) to include victims of domestic violence.)
III
In this court, the Attorney General has abandoned the argument he made in
the Court of Appeal that section 1219(b) prohibited the prosecution from invoking
the Uniform Act‟s custody-and-delivery provision. He now accepts the Court of
Appeal‟s holding that section 1219(b), which prohibits the jailing of sexual assault
victims for contempt of court based on their refusal to testify, does not preclude
the prosecution from using the Uniform Act‟s custody-and-delivery provision.
The Attorney General now argues that even though the prosecution in this case
could have invoked that provision of the Uniform Act, it was not required to do so
in order to show in this case the sexual assault victim‟s unavailability as a witness
at defendant‟s trial. We agree, as discussed below.
9

In requiring that prior testimony be admissible at trial only when the person
who previously testified has later become unavailable to testify, the Legislature
sought to ensure that “only when necessary” is prior testimony to be substituted
for live testimony, which is generally “the preferred form of evidence.” (People
v. Reed (1996) 13 Cal.4th 217, 225.) Live testimony compels a witness “to stand
face to face with the jury” so it “may look at him and judge by his demeanor upon
the stand and the manner in which he gives his testimony whether he is worthy of
belief.” (Mattox v. United States (1895) 156 U.S. 237, 242-243.) But that
assessment by the jury “ „is severely hampered‟ ” when the “ „witness is absent
and when his prior testimony is read into evidence. [Citation.] Only if the
necessity . . . is clearly demonstrated may the defendant‟s right of confrontation be
overcome . . . .‟ ” (People v. Louis (1986) 42 Cal.3d 969, 983.) Such necessity is
shown, for instance, if a witness is unavailable to testify at trial notwithstanding a
party‟s use of “reasonable diligence” in attempting to secure the presence of the
witness. (Evid. Code, § 240, subd. (a)(5).)
Reasonable diligence, often called “due diligence” in case law, “ „connotes
persevering application, untiring efforts in good earnest, efforts of a substantial
character.‟ ” (People v. Cromer (2001) 24 Cal.4th 889, 904.) Here, the Court of
Appeal faulted the prosecution for not doing enough to obtain Colorado resident
Lorene‟s presence as a material witness at defendant‟s trial. What the prosecution
should have done, the Court of Appeal said, was to invoke the Uniform Act‟s
provision that would have permitted the prosecution to ask a Colorado court to
have Lorene taken into custody and transported to California as a witness for the
prosecution.
As there is no published California case involving the Uniform Act‟s
provision on custody and delivery of a material witness, the parties here rely on
decisions from other states that have considered the issue. Three of these cases —
10

Gray v. Commonwealth (Va.Ct.App. 1993) 431 S.E.2d 86, People v. Thorin
(Mich.Ct.App. 1983) 336 N.W.2d 913, and People v. Arguello (Colo.Ct.App.
1987) 737 P.2d 436) — generally support the Attorney General‟s view that to
establish an out-of-state witness‟s unavailability at trial, a party is not required to
invoke the Uniform Act‟s custody-and-delivery provision. A fourth case — State
v. Archie (Ariz.Ct.App. 1992) 831 P.2d 414 — generally supports defendant‟s
contrary view. In all four, however, the facts are quite different from the case
before us. None of them resolves the issue before us here: Did the prosecution
have to invoke the Uniform Act‟s custody-and-delivery provision before it could
establish its use of due diligence in securing sexual assault victim Lorene‟s
presence at defendant‟s trial? Our answer is “no,” as explained below.
To have a material witness who has committed no crime taken into custody,
for the sole purpose of ensuring the witness‟s appearance at a trial, is a measure so
drastic that it should be used sparingly. (See, e.g., State v. Reid (Ariz. 1976) 559
P.2d 136, 145 [“Confinement of a witness, even for a few days, not charged with a
crime, is a harsh and oppressive measure which we believe is justified only in the
most extreme circumstances.”].) Confinement would be particularly problematic
when, as in this case, the witness is a sexual assault victim.
Although any crime victim may be traumatized by the experience, sexual
assault victims are particularly likely to be traumatized because of the nature of
the offense. To relive and to recount in a public courtroom the often personally
embarrassing intimate details of a sexual assault far overshadows the usual
discomforts of giving testimony as a witness. And the defense may, through
rigorous cross-examination, try to portray the victim as a willing participant. (See
generally, Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the
Courtroom (1977) 77 Colum. L.Rev. 1.) Also, seeing the attacker again — this
time in the courtroom — is for many sexual assault victims a visual reminder of
11

the harrowing experienced suffered, adding to their distress and discomfort on the
witness stand. (See Ellison, The Adversarial Process and the Vulnerable Witness
(2001) pp. 16-17.) It comes as no surprise, therefore, that often a victim of sexual
assault is hesitant to report the crime. Even fewer such crimes would be reported
if sexual assault victims could be jailed for refusing to testify against the assailant.
Recognizing these concerns, the California Legislature in 1984 amended
Code of Civil Procedure section 1219 to add subdivision (b). (Sen. Bill No. 1678
(1983-1984 Reg. Sess.) § 2.) That provision, as mentioned earlier, prohibits a trial
court from jailing for contempt a sexual assault victim who refuses to testify
against the attacker. As the author of that legislation explained to his fellow
senators: “The purpose of [section 1219(b)] is not only to protect victims of
sexual assault from further victimization resulting from imprisonment or threats of
imprisonment by our judicial system, but also to begin to create a supportive
environment in which more victims might come forward to report and prosecute
[perpetrators of] sexual assault.” (Sen. Floor Statement by Sen. Dan
McCorquodale on Sen. Bill No. 1678, May 1, 1984.) Enactment of section
1219(b) reflects the Legislature‟s view that sexual assault victims generally should
not be jailed for refusing to testify against the assailant.
In this case, the prosecution acted reasonably when it chose not to request
— even though permitted under the Uniform Act‟s custody-and-delivery provision
— to have sexual assault victim Lorene taken into custody and transported from
Colorado to California to testify at defendant‟s trial. As mentioned earlier,
Lorene‟s refusal to testify at defendant‟s first scheduled trial led to a dismissal of
the case against defendant. Thereafter, the prosecution refiled the charges against
defendant. Lorene again told the prosecution she would not testify against
defendant, and she ignored a subpoena ordering her to appear at defendant‟s trial.
It is highly unlikely that had Lorene been taken into custody, she would have
12

become a cooperative witness. Moreover, if she had been transported against her
will to California and then refused to testify, the trial court could not have held her
in contempt and jailed her until she agreed to testify, because that remedy
(ordinarily available when a witness refuses to testify) is not available when the
witness who refuses to testify is a sexual assault victim. (§ 1219(b).) Having
spoken directly to Lorene, the prosecutor was in the best position to assess the
strength of her determination not to testify at defendant‟s trial. Based on that
assessment, the prosecutor could reasonably conclude that invoking the Uniform
Act‟s custody-and-delivery provision would not have altered Lorene‟s decision
not to testify again about the sexual assault, and thus it would have been a waste of
time and resources.
In holding that the prosecution in this sexual assault case did not use
reasonable diligence in securing Lorene‟s presence at defendant‟s California trial,
the Court of Appeal pointed to the prosecution‟s failure to invoke the Uniform
Act‟s custody-and-delivery provision. In the court‟s words: “Lorene was an
essential witness in this case, her appearance was crucial. The prosecution did not,
under the circumstances of this case, use every reasonable means to secure her
attendance and, therefore, did not exercise reasonable diligence.” But
confinement of a sexual assault victim to ensure her presence at the assailant‟s
trial would, for reasons we discussed earlier, not be a reasonable means of
securing the witness‟s presence.
Pertinent here is our decision in People v. Smith (2003) 30 Cal.4th 581. In
that case, the trial court ruled that a sexual assault victim‟s refusal to testify at the
defendant‟s trial made her unavailable as a witness. We rejected the defendant‟s
argument that to get the victim to testify the trial court should have threatened to
fine her. We said: “Trial courts „do not have to take extreme actions before
making a finding of unavailability.‟ ” (Id. at p. 624.) In this sexual assault case,
13

the prosecution‟s resort to the Uniform Act‟s custody-and-delivery provision to
ensure victim Lorene‟s presence at defendant‟s trial would have been an action far
more extreme than the fine at issue in Smith. Thus, the Court of Appeal here erred
in reversing the trial court‟s ruling that Lorene was unavailable as a witness
notwithstanding the prosecution‟s use of reasonable means to secure her presence
at defendant‟s trial, and that therefore the prosecution could use at that trial the
testimony that Lorene had previously given at defendant‟s preliminary hearing.
DISPOSITION
We reverse the judgment of the Court of Appeal. We remand the matter to
that court for consideration of defendant‟s remaining claims, which the Court of
Appeal did not address.
KENNARD, J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
14


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Cogswell __________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 156 Cal.App.4th 698
Rehearing Granted

__________________________________________________________________________________

Opinion No. S158898
Date Filed: April 1, 2010
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: John S. Einhorn

__________________________________________________________________________________

Attorneys for Appellant:
Patricia A. Scott, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Donald E.
De Nicola, Deputy State Solicitor General, Gary W. Schons, Assistant Attorney General, Steve Oetting,
Rhonda Cartwright-Ladendorf, Kristen Kinnaird Chenelia and Melissa Mandel, Deputy Attorneys General,
for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):
Patricia A. Scott
Post Office Box 12876
Prescott, AZ 86304
(928) 445-8380

Melissa Mandel
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2211

Petition for review after the Court of Appeal reversed a judgment of conviction of criminal offenses. This case presents the following issue: Must a prosecutor request that an out-of-state sexual assault victim, who does not wish to return to California and testify, be taken into custody under the Uniform Act to Secure Attendance of Witnesses from without the State in Criminal Cases (Pen. Code, section 1334 et seq.) in order to demonstrate the due diligence required to satisfy the finding of unavailability under Evidence Code section 240 that would permit the victim's preliminary hearing testimony to be admitted into evidence at trial?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Thu, 04/01/201048 Cal. 4th 467, 227 P.3d 409, 106 Cal. Rptr. 3d 850S158898Review - Criminal Appealsubmitted/opinion due

Parties
1The People (Plaintiff and Respondent)
Represented by Melissa A. Mandel
Office of the Attorney General
P.O. Box 85266
110 West "A" Street, Suite 1100
San Diego, CA

2The People (Plaintiff and Respondent)
Represented by Kristen Kinnaird Chenelia
Office of the Attorney General
P.O. Box 85266
110 West "A" Street, Suite 1100
San Diego, CA

3Cogswell, Henry Ivan (Defendant and Appellant)
California State Prison
P.O. Box 5242
Corcoran, CA 93212

Represented by Patricia A. Scott
Attorney at Law
P.O. Box 12876
Prescott, AZ


Opinion Authors
OpinionJustice Joyce L. Kennard

Dockets
Dec 6 2007Petition for review filed
  The People, respondent by Kristen Kinnaird Chenellia, Deputy Attorney General
Dec 10 2007Received Court of Appeal record
  two doghouses ( volume 1 & 2 )
Jan 25 2008Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including March 5, 2008, or the date upon which review is either granted or denied.
Feb 13 2008Petition for review granted (criminal case)
  Votes: George, C.J., Kennard, Baxter, Wedegar, Chin, Moreno, and Corrigan, JJ.
Mar 10 2008Request for extension of time filed
  The People - requesting extension till April 14, 2008 to file opening brief on the merits. by Kristen Kinnaird Chenelia, Deputy Attorney General
Mar 18 2008Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including April 14, 2008.
Mar 18 2008Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Patricia A. Scott is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
Apr 14 2008Opening brief on the merits filed
  The People, respondent by Kristen Kinnaird Chenelia, deputy attorney general
Apr 14 2008Request for judicial notice filed (granted case)
  The People, respondents by Kristen Kinnaird Chenelia, Deputy Attorney General
May 7 2008Change of contact information filed for:
  Patricia A. Scott, counsel for appellant
May 12 2008Request for extension of time filed
  Appellant, Henry Ivan Cogswell requests a 30-day extension to and including June 13, 2008 to file appellant's answer brief on the merits. Granted - order being prepared
May 15 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's answer brief on the merits is hereby extended to and including June 13, 2008.
Jun 16 2008Answer brief on the merits filed
  Henry Ivan Cogswell, appellant by Patricia A. Scott, counsel crc.8.25(b)
Jun 25 2008Compensation awarded counsel
  Atty Scott
Jul 3 2008Reply brief filed (case fully briefed)
  The People, respondent by Kristen Kinnaird Chenella, Deputy Attorney General
Sep 10 2009Filed:
  Supplemental Letter Brief from appellant, by Patricia A. Scott, counsel.
Jan 6 2010Case ordered on calendar
  to be argued Wednesday, January 27, 2010, at 9:00 a.m., in San Francisco
Jan 21 2010Filed:
  Declaration of Attorney General in support of filing supplemental brief .
Jan 21 2010Supplemental brief filed
Plaintiff and Respondent: The PeopleAttorney: Melissa A. Mandel   filed with permission
Jan 22 2010Request for judicial notice granted
  Respondent's request for judicial notice, filed on April 14, 2008, is granted.
Jan 27 2010Cause argued and submitted
 
Mar 30 2010Notice of forthcoming opinion posted
  To be filed on Thursday, April 1, 2010.

Briefs
Apr 14 2008Opening brief on the merits filed
 
Jun 16 2008Answer brief on the merits filed
 
Jul 3 2008Reply brief filed (case fully briefed)
 
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May 21, 2010
Annotated by kmcfarla

KENNARD, J. writes for a unanimous court.

Facts and Procedural Posture:
On a visit to California, a Colorado woman, Lorene B., was sexually attacked by Henry Ivan Cogswell. Both Lorene and defendant are deaf, and are part of a close-knit community of deaf friends. At a preliminary hearing, Lorene testified against defendant, but she declined to testify at his trial.

Relying on the Uniform Act to Secure the Attendance of Witnesses from without the State in Criminal Cases (Uniform Act; Pen. Code, § 1334 et seq. ), the prosecution tried to compel Lorene’s presence at trail. The Act enables a party in a criminal case to ask that an out-of-state witness be subpoenaed by her own state court, and that she be taken into custody and brought to the prosecuting state to testify. This latter provision of the statute is referred to as the “custody-and-delivery” provision. Although the prosecution did request that the Colorado court subpoena Lorene, they did not request, as permitted under the Act, that Lorene be taken into custody and brought to San Diego.

Although the Colorado court issued the subpoena, on the first day of defendant’s trial, Lorene did not appear. So the prosecution asked the trial court if they could use her previous testimony, given at the preliminary hearing, because Lorene was “unavailable as a witness,” (as defined by Evid. Code, § 1292, subd. (a)), notwithstanding their use of reasonable diligence in attempting to secure her presence. The prosecutor said to the court: “[Lorene] has stated to me and to my investigator . . . that she has had as much of this matter as she can possibly handle.”

The defense objected that the prosecution had not demonstrated “reasonable diligence” to secure Lorene’s attendance, as it failed to employ the custody-and-delivery provision of the Uniform Act. The California trial court, however, agreed with the prosecution, and declared Lorene to be “unavailable as a witness;” thus, the use of her preliminary hearing testimony was permitted. And based largely on this admitted testimony, the jury convicted defendant of various sexual assaults. He then appealed.

The Court of Appeal disagreed with the trial court’s determination that the Colorado witness was unavailable. They believed, like the defense, that the prosecution had not used reasonable diligence in securing Lorene’s presence because it did not avail itself of the Uniform Act’s custody-and-delivery provision, and that the trial court erred in allowing the use of Lorene’s preliminary hearing testimony. This error, the Court of Appeal held, was prejudicial, because without the use of that testimony there was no evidence of defendant’s guilt.

Issue:
In order to show “reasonable diligence” in obtaining a witness’s presence at trial, did the prosecution have to ask that the witness (an out-of-state sexual assault victim) be taken into custody and transported to California to testify at defendant’s trial?

Holding:
No. The prosecution showed “reasonable diligence” in their efforts to obtain witness’s presence at trial, without invoking the custody-and-delivery provision, and, therefore, witness’s previous testimony was admissible. The Court of Appeal’s decision is reversed and the case is remanded.

Rules of Law:
The court identifies three pertinent statutes:
1. The Uniform Act to Secure the Attendance of Witnesses from without the State in Criminal Cases (Uniform Act; Pen. Code, § 1334 et seq.);
2. Evidence Code sections 240 and 1292, which permit the use of prior testimony by an unavailable declarant;
3. Code of Civil Procedure section 1219(b), which prohibits the confinement of a sexual assault victim for contempt based on a refusal to testify about the assault.

Reasoning:
The court begins by acknowledging the importance of live testimony. Indeed, it is permissible to substitute other forms of testimony, such as previous testimony, only when it is absolutely necessary to do so. And “necessity,” the court holds, encompasses the present circumstance: if a witness is unavailable to testify, notwithstanding the reasonable diligence of a party to secure her presence, her former testimony may be used instead. The court defines “reasonable diligence” as an “untiring effort in good earnest.”

The court disagrees with the Court of Appeal, that the prosecution did not manifest “untiring efforts” simply because they did not invoke the custody-and-delivery provision. Indeed, taking a material witness into custody—a witness who has committed no crime—for the sole purpose of ensuring the witness’s appearance at trial, is “a measure so drastic that it should be used sparingly.” And confinement of a witness is especially problematic when the witness is a victim of sexual assault. Sexual assault victims are particularly prone to trauma, due to the nature of the offense against them and public testimony is particularly painful, especially in the adversarial environment of the courtroom, as is seeing the attacker. Victims of sexual assault have strong incentives for not reporting the crimes they suffer; if they were held in custody for refusing to testify against their perpetrators, even fewer crimes would be reported. These truths are evidenced by the legislative intent behind section 1219(b) of the Code of Civil Procedure, which prohibits the confinement of a sexual assault victim for contempt based on a refusal to testify about the assault. It is not true, however, that section 1219(b) precluded the prosecution from invoking the provision, as the Attorney General originally argued on appeal. The court points out, too, that Lorene may not have been a cooperative witness, even if she had been delivered to the California courtroom. The prosecution was in the best position to make an assessment about the efficacy of invoking the provision—and their assessment was reasonable.

In light of all relevant circumstances, the Court of Appeal was wrong when they faulted the prosecution for not using “every reasonable means” to secure Lorene’s attendance, because compelling Lorene to testify was not necessarily a reasonable means. Even though it could have invoked the custody-and-delivery provision of the Uniform Act, it was not required to do so in order to show that the sexual assault victim was unavailable to be a witness at defendant’s trial. Invoking this provision would have been an extreme measure, and “trial courts do not have to take extreme actions before making a finding of unavailability,” in order to justify the use of a sexual assault victim’s former testimony.

The judgment of the Court of Appeal is reversed; defendant’s other claims are remanded for further consideration.

Annotation by Katharine Blake McFarland

Tags: reasonable diligence, Pen. Code § 1334, sexual assault, admissible testimony, sexual assault victim, witness custody, out-of-state witness