People v. Trunnell

California Court of Appeal Aug 24, 1971 No. Crim. 19622Published

Before: Fleming

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Holding. The court held that the trial court did not abuse its discretion in admitting a witness's preliminary hearing testimony because the prosecution demonstrated a good-faith effort to secure her presence and the limitation on cross-examination was not prejudicial error.

Issues

Whether the trial court erred in finding a witness unavailable for trial under Evidence Code section 240.
Whether the prosecution exercised reasonable diligence and good-faith efforts to secure the witness's presence.
Whether the trial court committed prejudicial error by limiting the defendant's cross-examination of the witness.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Lyvia was unavailable within the meaning of section 240 because she was in Israel at the time of trial and beyond the reach of the trial court’s process.”

“We find no abuse of discretion in the trial court’s finding that a good-faith effort was made in this case.”

Opinion

FLEMING, J.

Isaac Trunnell appeals his conviction by the trial court of rape (former Pen. Code, § 261, subd. 3) and robbery (Pen. Code, § 211).

The Rape and Robbery

The trial court received in evidence the testimony which Lyvia K. had given at the preliminary hearing. She testified that on the evening of 22 April 1970 she was accosted by Trunnell and another man in a school parking lot in Los Angeles. Trunnell pushed Lyvia into her car, and he and his companion got in with her. Both men threatened Lyvia, savagely beat her, and tore off her clothes. Trunnell forced her to have sexual intercourse with him. He also took her purse, money, watch, and wedding ring. As Trunnell continued to beat. Lyvia his companion drove the car and its occupants out of the parking lot. But Lyvia continued to struggle, and both men then left the car and ran away.

Los Angeles Police Officer Norris testified that on the evening of 22 April 1970 he found Lyvia near her car, nude, hysterical, beaten, bruised, and bleeding. The interior of her car was splashed with blood and her clothing was scattered about. A wallet containing Trunnell’s identification was found on the floor of the rear seat of Lyvia’s car. Lyvia’s broken nose required surgery.

At 11:30 that evening, Officers Minor and Walter confronted Trunnell as he came up to an address found in the wallet left in Lyvia’s car. Trunnell hit one of the officers, kicked another, and tried to escape. After Trunnell’s arrest Officer Minor saw blood and hair on Trunnell’s clothes, hands, and legs.

[570]

Availability of Witness

The trial court admitted into evidence Lyvia’s testimony at the preliminary hearing because it found that Lyvia, an alien, had returned to Israel and was unavailable to testify at the trial.

Police Sergeant Beck testified that he learned at the preliminary hearing on 15 May 1970 that Lyvia and her husband were planning to leave the country. Sergeant Beck was unable to get the trial advanced to a time before she left. Although Lyvia’s husband wanted to return to the United States, Lyvia refused to do so and went to live at her mother’s home in Tel Aviv, Israel. Her plans to return to Los Angeles remained uncertain. Lyvia’s cousin received a letter from Lyvia in Israel postmarked 25 September 1970, the first day of trial.

People v. Trunnell

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FLEMING, J.

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