People v. Contreras

Opinion

THOMPSON, J.

This is an appeal from a judgment of conviction based upon a jury verdict finding defendant guilty of second degree robbery and of assault, and from an order revoking probation by reason of the conviction. Defendant contends that the 1974 amendment to the California Constitution incorporating a confrontation clause in section 15 of article I restricts the scope of Evidence Code section 1291, subdivision (a)(2), in criminal proceedings. Hence, argues defendant, decisional law prior to the 1974 amendment, which permits preliminary hearing testimony to be received at trial upon a showing of unavailability of the witness despite due diligence to obtain his presence at trial, is no longer applicable, and preliminary hearing testimony is never admissible against the defendant at a subsequent trial. Defendant contends also: (1) receipt in evidence of preliminary hearing testimony at trial violates the confrontation clause of the Sixth Amendment to the United States Constitution; (2) Evidence Code section 1291, subdivision (a)(2), is not satisfied in the case at bench because there was not the right at the preliminary hearing to cross-examine the witness with a motive and interest similar to that present at trial; and (3) the trial court erroneously permitted hearsay in evidence when determining the preliminary fact of due diligence to seek the attendance of a witness absent at trial whose testimony at defendant’s preliminary hearing was admitted against him.

We conclude that the 1974 amendment to the California Constitution is declaratory of a prior California constitutional right previously incorporated in the due process guarantee of former section 13 of article I and a statutory right stated in Penal Code section 686, subdivision 3 so that decisional law antedating the 1974 amendment is applicable in the case at bench. We conclude, further, that in light of that decisional law, defendant’s other contentions lack support.

Defendant, John Olson, and Debbie Fragosa were charged with robbery and assault by reason of their having “mugged- and rolled” Luis Salgado. Salgado identified the three at their preliminary hearing. He

[819]

was extensively cross-examined on the issue of identity and the details of the crime by counsel for Olson and by an attorney jointly representing Fragosa and defendant. Defendant and Fragosa were tried separately from Olson. By the time of trial, Salgado, an illegal alien, had disappeared. Extensive efforts were undertaken to find him in Mexico and thereafter to secure his presence at trial. Despite apparently boarding a bus to travel to the Mexico-United States border near Tijuana where his entrance to the United States had been arranged, Salgado never appeared.