People v. Daboul

California Court of Appeal Jun 7, 1965 No. Crim. 10360Published

Before: Kingsley

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Holding. The court held that the use of preliminary examination transcripts for absent witnesses does not violate the right of confrontation when the defendant had the opportunity for cross-examination, and that the admission of exculpatory statements obtained in violation of Dorado is not reversible error absent prejudice.

Issues

Whether the use of preliminary examination transcripts for witnesses absent from the state violates the constitutional right of confrontation.
Whether the failure to object to evidence at trial precludes appellate review of the legality of an arrest and search.
Whether the admission of exculpatory statements obtained in violation of People v. Dorado requires reversal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face-to-face, and of subjecting him to the ordeal of cross-examination.”

“Not having objected at the trial, the point cannot now be raised.”

KINGSLEY, J.

Defendant was charged with five counts of burglary, with three prior felony convictions. He pled not guilty and denied the priors. One alleged prior was stricken on motion of the prosecution. After a jury trial, he was found guilty on all counts, the jury finding the burglaries to be in the second degree; the jury also found the two remaining priors to be true. Probation was denied and he was sentenced to state prison, the sentences to be concurrent. He has appealed.

It is not questioned that the corpus delicti was proved as to all five alleged burglaries, nor that the evidence supports the adverse finding on the alleged prior felony convictions. Defendant’s defense was a denial of complicity.

As to one alleged burglary, the People relied, for proof of the corpus delicti, on the testimony of the victims, given at the preliminary examination. One of these witnesses had also given testimony identifying defendant as the burglar. Defendant promptly objected to the reading of the preliminary examination transcript. Both witnesses had testified, at the preliminary examination, that they were about to leave the state to take up permanent residence in the East. At the trial, the People offered testimony, on

voir dire,

out of the presence of the jury, showing efforts made to have the wit

[803]

nesses return for trial and to support the claim that they were out of the state at the time of trial.

Defendant does not contend that the proof of absence from the state was insufficient. He does contend that where, as here, identification was in issue and evidence on that point was to be offered by reading the transcript from the preliminary examination, the People were obligated, in spite of the clear language of section 686 of the Penal Code, both to demand security for these witnesses’ appearance (Pen. Code, §§ 878 and 879) and to invoke the procedure outlined in sections 1334 and following of the Penal Code, which sections provide a method for the compulsory attendance in the courts of this state of witnesses who are outside the state.

People v. Daboul

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KINGSLEY, J.

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