admission of preliminary hearing in California

2020The fact that defense counsel in retrospect would have preferred to direct additional questions to M.M. regarding a heat of passion defense does not dictate a different outcome. “ ‘[A]s long as a defendant was provided the opportunity for cross- examination, the admission of preliminary hearing testimony under Evidence Code section 1291 does not offend the confrontation clause of the federal Constitution simply because the defendant did not conduct a particular form of cross-examination that in hindsight might have been more effective.’ ” (People v. Carter (2005) 36 Cal.4th 1114, 1173-1174 . “

2016(People v. Carter (2005) 36 Cal.4th 1114, 1173 .) “‘[A]s long as a defendant was provided the opportunity for cross-examination, the admission of preliminary hearing testimony under Evidence Code section 1291 does not offend the confrontation clause of the federal Constitution simply because the defendant did not conduct a particular form of cross-examination that in hindsight might have been more effective.’” (Id. at pp. 1173-1174; see People v. Zapien (1993) 4 Cal.4th 929, 976 .) Therefore, even if as defendant argues his counsel did not seek to challenge Monica’s credibility at the prelimin

2023Here, Angela testified at defendant’s previous trial and trial counsel “ ‘had the right and opportunity to cross-examine [her] with an interest and motive similar to that which he ha[d] at the hearing.’ ” (People v. Wilson (2005) 36 Cal.4th 309 , 340‒341; see People v. Carter (2005) 36 Cal.4th 1114 , 1173‒1174 [holding “the admission of preliminary hearing testimony under Evidence Code section 1291 does not offend the confrontation clause of the federal Constitution”].) 15 As we discuss in detail below, trial counsel argued for Angela’s conviction to be admitted for impeachment purposes becaus

2022(Id. at p. 1171.) 53 On appeal, Carter argued the trial court should have excluded Blevins’s testimony for lack of meaningful cross-examination because his counsel made no effort to focus on Blevins as a third-party suspect in Kim’s murder despite knowing at the time that Blevins and Kim had argued bitterly just before her death. ( Carter, supra, 36 Cal.4th at pp. 1171-1172.) Our Supreme Court rejected defendant’s argument, concluding that, because Carter’s motive and interest in cross-examining Blevins at the preliminary hearing was “closely similar, if not identical to, [Carter’s] objectives

2007People v. Carter (2005) 36 Cal.4th 1114 [ 32 Cal.Rptr.3d 759 , 117 P.3d 476 ] stated at pages 1173-1174, "`as long as a defendant was provided the opportunity for cross-examination, the admission of preliminary hearing testimony under Evidence Code section 1291 does not offend the confrontation clause of the federal Constitution simply because the defendant did not conduct a particular form of cross-examination that in hindsight might have been more effective.' ( People v. Samayoa [(1997)] 15 Cal.4th 795 , 851 [ 64 Cal.Rptr.2d 400 , 938 P.2d 2 ], italics omitted; see also People v. Zapien (199

2007People v. Carter (2005) 36 Cal.4th 1114 , 32 Cal.Rptr.3d 759 , 117 P.3d 476 stated at pages 1173-1174, "`as long as a defendant was provided the opportunity for cross-examination, the admission of preliminary hearing testimony under Evidence Code section 1291 does not offend the confrontation clause of the federal constitution simply because the defendant did not conduct a particular form of cross-examination that in hindsight might have been more effective:' ( People v. Samayoa [(1997)] 15 Cal.4th 795, 851 [, 64 Cal. Rptr.2d 400 , 938 P.2d 2 ] ..., italics omitted; see also People v. Zapien (

2007People v. Carter (2005) 36 Cal.4th 1114 [ 32 Cal.Rptr.3d 759 , 117 P.3d 476 ] stated at pages 1173-1174, "`as long as a defendant was provided the opportunity for cross-examination, the admission of preliminary hearing testimony under Evidence Code section 1291 does not offend the confrontation clause of the federal Constitution simply because the defendant did not conduct a particular form of cross-examination that in hindsight might have been more effective.' ( People v. Samayoa [(1997)] 15 Cal.4th 795 , 851 [ 64 Cal.Rptr.2d 400 , 938 P.2d 2 ], italics omitted; see also People v. Zapien (199

2007People v. Carter (2005) 36 Cal.4th 1114 [ 32 Cal.Rptr.3d 759 , 117 P.3d 476 ] stated at pages 1173-1174, "`as long as a defendant was provided the opportunity for cross-examination, the admission of preliminary hearing testimony under Evidence Code section 1291 does not offend the confrontation clause of the federal Constitution simply because the defendant did not conduct a particular form of cross-examination that in hindsight might have been more effective.' ( People v. Samayoa [(1997)] 15 Cal.4th 795 , 851 [ 64 Cal.Rptr.2d 400 , 938 P.2d 2 ], italics omitted; see also People v. Zapien (199

2015That the written statement was not available at the time of the preliminary hearing did not prevent defense counsel from otherwise confronting Jane Doe IV about her accusations against appellant. “[A] prior opportunity to cross-examine a witness who has become unavailable is considered an adequate substitute for present cross-examination at trial.” (People v. Jones (1998) 66 Cal.App.4th 760, 766 [ 78 Cal.Rptr.2d 265 ].) Thus, “ ‘ “[a]s long as a defendant was provided the opportunity for cross-examination, the admission of preliminary hearing testimony under Evidence Code section 1291 does not

2015That the written statement was not available at the time of the preliminary hearing did not prevent defense counsel from otherwise confronting Jane Doe IV about her accusations against appellant. “[A] prior opportunity to cross-examine a witness who has become unavailable is considered an adequate substitute for present cross-examination at trial.” (People v. Jones (1998) 66 Cal.App.4th 760, 766 [ 78 Cal.Rptr.2d 265 ].) Thus, “ ‘ “[a]s long as a defendant was provided the opportunity for cross-examination, the admission of preliminary hearing testimony under Evidence Code section 1291 does not

1998Louis did not resolve the issue, but concluded that under its facts the admission of preliminary hearing testimony was proper under either standard. ( Id., at p. 989, 232 Cal.Rptr. 110 , 728 P.2d 180 .) In People v. Hovey (1988) 44 Cal.3d 543, 563 , 244 Cal.Rptr. 121 , 749 P.2d 776 , our Supreme Court acknowledged that Louis "suggested (but did not decide) that an appellate court should independently review the record on the due diligence issue." Like Louis, Hovey did not decide the issue, but concluded that under either the abuse of discretion test or the independent review test, "the trial c

1998Louis did not resolve the issue, but concluded that under its facts the admission of preliminary hearing testimony was proper under either standard. ( Id., at p. 989, 232 Cal.Rptr. 110 , 728 P.2d 180 .) In People v. Hovey (1988) 44 Cal.3d 543, 563 , 244 Cal.Rptr. 121 , 749 P.2d 776 , our Supreme Court acknowledged that Louis "suggested (but did not decide) that an appellate court should independently review the record on the due diligence issue." Like Louis, Hovey did not decide the issue, but concluded that under either the abuse of discretion test or the independent review test, "the trial c

1998Louis did not resolve the issue, but concluded that under its facts the admission of preliminary hearing testimony was proper under either standard. ( Id., at p. 989, 232 Cal.Rptr. 110 , 728 P.2d 180 .) In People v. Hovey (1988) 44 Cal.3d 543, 563 , 244 Cal.Rptr. 121 , 749 P.2d 776 , our Supreme Court acknowledged that Louis "suggested (but did not decide) that an appellate court should independently review the record on the due diligence issue." Like Louis, Hovey did not decide the issue, but concluded that under either the abuse of discretion test or the independent review test, "the trial c

1998Louis did not resolve the issue, but concluded that under its facts the admission of preliminary hearing testimony was proper under either standard. ( Id., at p. 989, 232 Cal.Rptr. 110 , 728 P.2d 180 .) In People v. Hovey (1988) 44 Cal.3d 543, 563 , 244 Cal.Rptr. 121 , 749 P.2d 776 , our Supreme Court acknowledged that Louis "suggested (but did not decide) that an appellate court should independently review the record on the due diligence issue." Like Louis, Hovey did not decide the issue, but concluded that under either the abuse of discretion test or the independent review test, "the trial c

2020The fact that defense counsel in retrospect would have preferred to direct additional questions to M.M. regarding a heat of passion defense does not dictate a different outcome. “ ‘[A]s long as a defendant was provided the opportunity for cross- examination, the admission of preliminary hearing testimony under Evidence Code section 1291 does not offend the confrontation clause of the federal Constitution simply because the defendant did not conduct a particular form of cross-examination that in hindsight might have been more effective.’ ” (People v. Carter (2005) 36 Cal.4th 1114, 1173-1174 . “

2015That the written statement was not available at the time of the preliminary hearing did not prevent defense counsel from otherwise confronting Jane Doe IV about her accusations against appellant. “[A] prior opportunity to cross-examine a witness who has become unavailable is considered an adequate substitute for present cross-examination at trial.” (People v. Jones (1998) 66 Cal.App.4th 760, 766 [ 78 Cal.Rptr.2d 265 ].) Thus, “ ‘ “[a]s long as a defendant was provided the opportunity for cross-examination, the admission of preliminary hearing testimony under Evidence Code section 1291 does not

2015That the written statement was not available at the time of the preliminary hearing did not prevent defense counsel from otherwise confronting Jane Doe IV about her accusations against appellant. “[A] prior opportunity to cross-examine a witness who has become unavailable is considered an adequate substitute for present cross-examination at trial.” (People v. Jones (1998) 66 Cal.App.4th 760, 766 [ 78 Cal.Rptr.2d 265 ].) Thus, “ ‘ “[a]s long as a defendant was provided the opportunity for cross-examination, the admission of preliminary hearing testimony under Evidence Code section 1291 does not

2014As long as defendant was given the opportunity for effective cross-examination, the statutory requirements were satisfied; the admissibility of this evidence did not depend on whether defendant availed himself fully of that opportunity. [Citations.]” (Ibid.; see People v. Carter (2005) 36 Cal.4th 1114, 1172-1173 [rejecting claim that the defendant’s confrontation rights were violated “because defense counsel’s brief cross-examination constituted incompetent representation”; “ ‘as long as a defendant was provided the opportunity for cross-examination, the admission of preliminary hearing testim

1997(See People v. Zapien, supra, 4 Cal.4th at p. 975.) Defendant further contends the presumption of reliability that normally is accorded preliminary hearing testimony (California v. Green (1970) 399 U.S. 149, 161-162 [ 90 S.Ct. 1930, 1936-1937 , 26 L.Ed.2d 489 ]) should not apply in the present case, because Raymond’s testimony was demonstrated to be in fact unreliable in light of the penalty phase testimony of David Anderson relating that he and the third burglar also had raped the victim.

1997(See People v. Zapien, supra, 4 Cal.4th at p. 975.) Defendant further contends the presumption of reliability that normally is accorded preliminary hearing testimony (California v. Green (1970) 399 U.S. 149, 161-162 [ 90 S.Ct. 1930, 1936-1937 , 26 L.Ed.2d 489 ]) should not apply in the present case, because Raymond’s testimony was demonstrated to be in fact unreliable in light of the penalty phase testimony of David Anderson relating that he and the third burglar also had raped the victim.

1991The Supreme Court later opined, however, that when a court determines the witness is unavailable, “there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demands of the confrontation clause.” (Barber v. Page, supra, 390 U.S. at p. 725 [ 20 L.Ed.2d at p. 260 ].) Later, in Ohio v. Roberts (1980) 448 U.S. 56 [ 65 L.Ed.2d 597 , 100 S.Ct. 2531 ], the high court found the confrontation clause was not violated by the admission of preliminary hearing testimony, when the unavailable witness was actually cross-examined b

1991The Supreme Court later opined, however, that when a court determines the witness is unavailable, “there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demands of the confrontation clause.” (Barber v. Page, supra, 390 U.S. at p. 725 [ 20 L.Ed.2d at p. 260 ].) Later, in Ohio v. Roberts (1980) 448 U.S. 56 [ 65 L.Ed.2d 597 , 100 S.Ct. 2531 ], the high court found the confrontation clause was not violated by the admission of preliminary hearing testimony, when the unavailable witness was actually cross-examined b

1985(See People v. Sul (1981) 122 Cal.App.3d 355, 369 [ 175 Cal.Rptr. 893 ]; People v. Maxwell (1979) 94 Cal.App.3d 562, 572-573 [ 156 Cal.Rptr. 630 ]; People v. Rodriguez (1971) 18 Cal.App.3d 793, 797 [ 96 Cal.Rptr. 162 ]; People v. Palacios (1968) 261 Cal.App.2d 566, 574 [ 68 Cal.Rptr. 137 ].) In order to apply these principles here it is necessary to examine the circumstances of Mrs. Williams’ preliminary hearing testimony in some detail.

1985(See People v. Sul (1981) 122 Cal.App.3d 355, 369 [ 175 Cal.Rptr. 893 ]; People v. Maxwell (1979) 94 Cal.App.3d 562, 572-573 [ 156 Cal.Rptr. 630 ]; People v. Rodriguez (1971) 18 Cal.App.3d 793, 797 [ 96 Cal.Rptr. 162 ]; People v. Palacios (1968) 261 Cal.App.2d 566, 574 [ 68 Cal.Rptr. 137 ].) In order to apply these principles here it is necessary to examine the circumstances of Mrs. Williams’ preliminary hearing testimony in some detail.

1985(See People v. Sul (1981) 122 Cal.App.3d 355, 369 [ 175 Cal.Rptr. 893 ]; People v. Maxwell (1979) 94 Cal.App.3d 562, 572-573 [ 156 Cal.Rptr. 630 ]; People v. Rodriguez (1971) 18 Cal.App.3d 793, 797 [ 96 Cal.Rptr. 162 ]; People v. Palacios (1968) 261 Cal.App.2d 566, 574 [ 68 Cal.Rptr. 137 ].) In order to apply these principles here it is necessary to examine the circumstances of Mrs. Williams’ preliminary hearing testimony in some detail.

1985(See People v. Sul (1981) 122 Cal.App.3d 355, 369 [ 175 Cal.Rptr. 893 ]; People v. Maxwell (1979) 94 Cal.App.3d 562, 572-573 [ 156 Cal.Rptr. 630 ]; People v. Rodriguez (1971) 18 Cal.App.3d 793, 797 [ 96 Cal.Rptr. 162 ]; People v. Palacios (1968) 261 Cal.App.2d 566, 574 [ 68 Cal.Rptr. 137 ].) In order to apply these principles here it is necessary to examine the circumstances of Mrs. Williams’ preliminary hearing testimony in some detail.

1985(See People v. Sul (1981) 122 Cal.App.3d 355, 369 [ 175 Cal.Rptr. 893 ]; People v. Maxwell (1979) 94 Cal.App.3d 562, 572-573 [ 156 Cal.Rptr. 630 ]; People v. Rodriguez (1971) 18 Cal.App.3d 793, 797 [ 96 Cal.Rptr. 162 ]; People v. Palacios (1968) 261 Cal.App.2d 566, 574 [ 68 Cal.Rptr. 137 ].) In order to apply these principles here it is necessary to examine the circumstances of Mrs. Williams’ preliminary hearing testimony in some detail.

1985(See People v. Sul (1981) 122 Cal.App.3d 355, 369 [ 175 Cal.Rptr. 893 ]; People v. Maxwell (1979) 94 Cal.App.3d 562, 572-573 [ 156 Cal.Rptr. 630 ]; People v. Rodriguez (1971) 18 Cal.App.3d 793, 797 [ 96 Cal.Rptr. 162 ]; People v. Palacios (1968) 261 Cal.App.2d 566, 574 [ 68 Cal.Rptr. 137 ].) In order to apply these principles here it is necessary to examine the circumstances of Mrs. Williams’ preliminary hearing testimony in some detail.

1985(See People v. Sul (1981) 122 Cal.App.3d 355, 369 [ 175 Cal.Rptr. 893 ]; People v. Maxwell (1979) 94 Cal.App.3d 562, 572-573 [ 156 Cal.Rptr. 630 ]; People v. Rodriguez (1971) 18 Cal.App.3d 793, 797 [ 96 Cal.Rptr. 162 ]; People v. Palacios (1968) 261 Cal.App.2d 566, 574 [ 68 Cal.Rptr. 137 ].) In order to apply these principles here it is necessary to examine the circumstances of Mrs. Williams’ preliminary hearing testimony in some detail.

1985(See People v. Sul (1981) 122 Cal.App.3d 355, 369 [ 175 Cal.Rptr. 893 ]; People v. Maxwell (1979) 94 Cal.App.3d 562, 572-573 [ 156 Cal.Rptr. 630 ]; People v. Rodriguez (1971) 18 Cal.App.3d 793, 797 [ 96 Cal.Rptr. 162 ]; People v. Palacios (1968) 261 Cal.App.2d 566, 574 [ 68 Cal.Rptr. 137 ].) In order to apply these principles here it is necessary to examine the circumstances of Mrs. Williams’ preliminary hearing testimony in some detail.