Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA060127, Katherine Mader, Judge. Affirmed.
Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Luis A. Rodriguez was convicted by a jury of first degree murder and being a felon in possession of a firearm, with special findings by the jury that he had personally discharged a firearm during the murder and that the offense had been committed for the benefit of a criminal street gang (Lennox 13) and by the court in a bifurcated proceeding that he had suffered a prior serious or violent felony conviction within the meaning of the “Three Strikes” law, as well as a serious felony conviction within the meaning of Penal Code section 667, subdivision (a)(1). Rodriguez was sentenced to an aggregate state prison term of 81 years four months to life. On appeal Rodriguez contends the trial court committed prejudicial error in finding witness Mei Kanongata’a unavailable to testify at trial and violated his Sixth Amendment right to confrontation by permitting the People to read Kanongata’a’s preliminary hearing testimony to the jury. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Murder of Gerardo Olvera
Gerardo Olvera was murdered on the evening of April 30, 2006 outside the El Jalisco Bar, located in a strip mall on Inglewood Avenue near 116th Street in Hawthorne. Rodriguez and the People stipulated Olvera arrived at the bar by taxi at 10:20 p.m. Olvera called the taxi driver at 10:35 p.m. to come back to pick him up. When the driver returned to the bar at 10:50 p.m., he saw police tape but could not find Olvera. In essentially undisputed testimony it was established Olvera had been paid earlier in the day, cashed his check (around $350) and was dressed nicely, wearing a gold necklace and bracelet because he was “going out.”
The security videotape from the El Jalisco Bar, played for the jury at trial, shows Olvera arriving at the bar and being greeted in the parking lot by Pedro Vacio and Alfred Ortega. Olvera then entered the bar and took a seat near Vacio and Ortega. Rodriguez approached the three men and stood next to them. Rodriguez and Olvera spoke to each other at the bar; the videotape also shows Rodriguez, Vacio and Ortega talking among themselves. At 10:35 p.m. Olvera made a call on his cellular telephone while sitting at the bar. He then walked toward the front door, stopped, spoke with Rodriguez and returned to a barstool.
The bar apparently has four security cameras, and the videotape is divided into four quadrants: One shows a portion of the parking lot in front of the entrance; a second displays the exterior of the bar near the rear entrance; and the remaining two quadrants contain images from the interior of the bar.
As shown on the security tape, after Olvera returned to the bar, Rodriguez spoke to Vacio and pointed at Olvera. Rodriguez and Vacio then approached Olvera, who stood up and walked with Vacio toward the restrooms. Rodriguez remained at the bar, pointed toward the restroom, made a thumbs-up gesture and then walked toward the restroom. Shortly thereafter, Olvera, Rodriguez and Vacio, as well as Ortega, emerged from the area near the restrooms. Rodriguez walked behind Ortega and Vacio, who appeared to be escorting a reluctant Olvera out the door. Rodriguez walked into the parking lot with Olvera at 10:47 p.m. Vacio remained inside the bar. Following Rodriguez’s direction, Olvera began walking north on Inglewood Avenue toward 116th Street. Rodriguez followed Olvera; Ortega followed them both a few seconds later. Several minutes after that, Vacio ran out into the parking lot, looked around and returned to the bar.
Sisifahina Kailahi, who lived on 116th Street near Inglewood Avenue in Hawthorne, heard two or three gunshots around 10:30 p.m. on April 30, 2006. Kailahi testified she saw two men running east toward Inglewood Avenue (that is, toward the bar). According to Kailahi, the first man looked like he wanted to get away from something. The man stopped, turned and faced away from Inglewood Avenue, shouted an obscenity and then fired two shots toward the ground. He then turned again and continued running toward Inglewood Avenue. The following day Kailahi described the first man as having a bald or shaved head and said he had been wearing a tank top and a black and white jacket. She identified Rodriguez as the first man from a photographic array and at trial.
Kailahi’s home is the first house west of the parking lot of the strip mall where the El Jalisco Bar is located.
Rodrigo Cuevas, Kailahi’s husband, testified he also heard the gunfire and saw through his living room window two people running down 116th Street toward Inglewood Avenue. A few seconds after the original shots, Cuevas heard additional gunfire. One of the individuals running -- the one in front -- was bald and was wearing a white tank top and a checkered jacket. The second man was dark-skinned, chunky in build and had hair. Cuevas identified Rodriguez as the first man the following day from a photographic array, but was unable to identify him at the preliminary hearing or at trial.
In testimony given at Rodriguez’s preliminary hearing and read to the jury at trial, Kanongata’a, Kailahi’s brother, said he had walked outside the Kailahi-Cuevas residence to move his car three or four minutes before he heard any shots. He was approached by a man who identified himself as “Shaggy” and who asked Kanongata’a if he had a cigarette. Kanongata’a replied he did not. The man then showed Kanongata’a a gun and asked him if he would hide it for him inside his house. Kanongata’a refused. As he was walking back inside the house, the man asked Kanongata’a if he could hide inside the residence “if anything happens.” Kanongata’a responded, “I don’t live here” and went back inside. After he heard the shots, Kanongata’a called the police. Kanongata’a described the man as 20 to 21 years old, with a stocky build and dark, slicked-back hair. At the preliminary hearing Kanongata’a identified Rodriguez as the man who had approached him that night.
At the preliminary hearing the witness gave his name as Mei Kanongata’a Kailahi, indicating his last name was Kailahi; and he was called “Mr. Kailahi” during that examination. Subsequently, counsel and the court consistently identified the witness as Mei Kanongata’a.
A Hawthorne police officer on patrol received a radio call regarding shots fired at 10:47 p.m. He arrived at the scene within two minutes and found Olvera’s body in the street in front of a residence four houses west of the El Jalisco Bar parking lot. Olvera had no wallet, cellular telephone, jewelry or identification on his body.
Forensic evidence established shell casings from two different semiautomatic weapons (three expended nine-millimeter shell casings and one expended .25-caliber shell casing) had been recovered at the murder site. Stippling surrounding a fatal gunshot wound to Olvera’s neck demonstrated he had been shot from a distance of no more than two feet. Olvera also suffered a fatal gunshot wound to his back and had a nonfatal wound in his left arm.
In a videotaped interview with police officers on May 2, 2006, which was played for the jury, Rodriguez acknowledged he had been at the El Jalisco Bar on the night of the murder and had spoken to Olvera, but denied shooting him. Rodriguez explained Olvera and another man (identified as “Malo”) had had an argument, apparently over drugs, and Rodriguez had then escorted Olvera from the bar and encouraged him to leave the area because he was concerned about his safety. Olvera did not want to leave the bar and argued with Rodriguez and others. Rodriguez initially claimed he walked with Olvera past approximately four houses on 116th Street when Olvera was shot by someone inside a dark-colored van they had passed on the street. Upon further questioning, which included advising Rodriguez the shots had been fired near the victim on the sidewalk, Rodriguez said one of his “homies” (identified as “Heuro”) had run up behind Olvera and Rodriguez and shot Olvera because Malo had said Olvera was a child molester. Rodriguez said he believed Heuro had used a nine millimeter weapon to shoot Olvera. Although he had initially denied having a gun that evening, Rodriguez admitted he was carrying a .38 caliber revolver at the time and also admitted he had shown the weapon to Kanongata’a on the street prior to the shooting. Upon being told by the officers they knew there had been more than one shooter, Rodriguez revised his story once again to add that, after Heuro shot Olvera, he saw Vacio run past him in the direction of Olvera and then heard another shot. According to Rodriguez, Vacio owned a small caliber handgun.
A clandestine recording of jail cell conversations between Rodriguez and Vacio, made on May 4, 2006 and played to the jury at trial, captured the men describing to each their statements to the police concerning the events surrounding the shooting and attempting to agree on a story that would minimize their exposure. The two agreed they would tell police they had gone into the restroom at El Jalisco Bar to use cocaine with Olvera and would suggest “maybe it was some enemies that shot” Olvera. At one point Rodriguez asked, “Who do you think said something?” and Vacio said, “The cameras are the only thing they have right now, the cameras is all.” Rodriguez was not so sanguine, “The cameras, and the snitches, the ones throwing rats.” Vacio then asked Rodriguez, “Was there people outside when you (plural) walked that way?” Rodriguez replied, “Yes dude.” Vacio then said, “It’s that you fucked up, I don’t know why you (plural) did it there.” Rodriguez responded, “Should have let him go, dude.” Vacio stated, “Yes, dude,” and Rodriguez said, “They should have got him another day dude. And now dude, I’m the one who is, who is taking it for that shit. I and you, dude. Why are, they’re not blaming you of anything, dude?”
The jury was given a Spanish transcript of the recording with an English translation.
A further secret jailhouse recording of Rodriguez and Vacio, now together with Ortega, was made on May 26, 2006 and played for the jury. Ortega cautioned the others, “It’s all right fool. If we stay alert. We’ll get out homie. Let’s not be ratting out.” In response to a question from Ortega, Rodriguez told the others he had directed the owner of El Jalisco Bar to erase the security tapes, but the owner had not done it. Later Ortega observed, “If they had destroyed those cameras, dude, we’d be all right, homey. . . . It’s just that that’s making them think, that, that, we had something to do with that problem.” Vacio then commented, “I didn’t think dude, otherwise we would have gotten him in the car there, dude, and we would have taken him to another place.” Subsequently Ortega asked, “What did you do with all . . . the things we stole from the dude?” “Did you throw them away?” Rodriguez responded, “I threw the telephone.” Rodriguez then asked about the jewelry (the chain and the ring), and Ortega confirmed he had disposed of it.
The jury was given a Spanish transcript of the recording with an English translation.
The People also introduced evidence of Rodriguez’s membership in the Lennox 13 street gang, as well as expert testimony concerning the activities of that gang, through police officers with substantial gang experience from the Los Angeles County Sheriff’s Department and the Hawthorne Police Department. In addition, evidence was presented that Rodriguez had received letters from fellow gang members in state prison addressed to “Shaggy.”
Rodriguez did not testify or present any evidence in his own defense other than through cross-examination of the People’s witnesses.
2. The Hearing Regarding Use of Kanongata’a’s Preliminary Hearing Testimony
After his opening statement the prosecutor advised the court he had learned Kanongata’a was in Australia and would remain out of the country on a religious mission for another 12 to 18 months. Acknowledging he had to establish the witness’s unavailability, the prosecutor stated he wanted the opportunity to do so and then to read Kanongata’a’s preliminary hearing testimony to the jury. Rodriguez’s counsel immediately responded the issue was not whether Kanongata’a was out of the country but whether the People had made a good faith effort to attempt to secure the witness’s appearance at trial. The court indicated there were two questions to be addressed: whether Kanongata’a was unavailable as a witness within the meaning of Evidence Code sections 240, subdivision (a)(5), and 1291, subdivision (a), and whether Rodriguez’s counsel had an adequate opportunity to cross-examine Kanongata’a at the preliminary hearing.
At an Evidence Code section 402 hearing on July 2, 2007, the following court day, the People presented testimony from Los Angeles Police Sergeant Mitchell Loman, the lead investigating officer in the case, who said he had issued subpoenas to witnesses in the case approximately one week earlier (that is, in late June 2007) when he had learned the case was going to trial. In the process of attempting to serve Kanongata’a, Loman learned Kanongata’a was on a mission with the Mormon Church in Australia; he left for the mission in January 2007; and he was scheduled to be gone for 18 months to two years. Kailahi, Kanongata’a’s sister, had provided Loman with an address she used to contact Kanongata’a and also gave Loman the name of Steve Adams, a senior official with the Mormon Church who was responsible for Kanongata’a’s mission. Loman testified he had spoken that morning to Adams, who confirmed Kanongata’a was in Melbourne, Australia. Adams said he was in the process of contacting the church’s missionary department in Salt Lake City to determine if there was a way of communicating with Kanongata’a.
The court asked Sergeant Loman whether he had attempted to remain in contact with Kanongata’a after the preliminary hearing in September 2006. Loman said no; the witness had been cooperative throughout the case; and, based on Kanongata’a’s statements at the time of the preliminary hearing that he was seeking a job locally, Loman had no idea he would not be available at the time of trial. Accordingly, he and the prosecutor had no reason to issue subpoenas any earlier. The court commented at this point it had not heard about any efforts made to find the witness.
The People then called Kailahi as a witness. Kailahi testified she was not sure where in Australia her brother was and explained he was only allowed to communicate with his family through letters and, to a limited extent, email; they could not speak to each other by telephone. Kailahi, who is also a member of the Mormon Church, said the church will not allow its missionaries to return home other than in the case of the death of a close family member. Without finally resolving the issue, which it described as something of an open question, the court asked Kailahi to provide Kanongata’a’s email address to the prosecutor and directed the prosecutor to attempt to contact him, “to exhaust all efforts to see whether or not he would return to California and testify.”
On July 5, 2007 the prosecutor provided a letter to the court from the president of the Mormon mission, which confirmed Kanongata’a was in Australia participating in the mission and stated it was against church policy to allow a missionary to travel outside their mission “for any reason.” Following receipt of this letter, the court ruled Kanongata’a’s preliminary hearing testimony could be read to the jury. The court found the district attorney’s office had reasonably relied on Kanongata’a’s prior cooperation, including his testimony at the preliminary hearing, and his statements about his intentions to pursue local opportunities to believe he would be available when he was needed for trial. “The only issue is whether or not, as I see it, the district attorney’s office should have started to look for him earlier and try to get him back from Australia, even though this church mission policy is that even if they had started two months ago, they couldn’t have brought him back from Australia. . . . I believe even in this situation if they would have tried several months earlier when they knew there was a trial date, it would not have had any different result.”
In response to the further objection by Rodriguez’s counsel that cross-examination during a preliminary hearing is insufficient to protect a defendant’s right to confrontation, the court found the cross-examination in this case had been “fairly extensive” and had not been limited or curtailed in any manner. Accordingly, the court overruled the objection.
CONTENTIONS
Rodriguez contends that, in permitting the People to use Kanongata’a’s preliminary hearing testimony, the trial court violated his constitutional right to confront witnesses against him. (U.S. Const., 6th Amend. [“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .”]; Crawford v. Washington (2004) 541 U.S. 36, 53-54 [124 S.Ct. 1354, 158 L.Ed.2d 177] [confrontation clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination”].) Specifically, Rodriguez contends the People failed to exercise reasonable diligence in attempting to secure Kanongata’a’s presence at trial and his counsel’s cross-examination of Kanongata’a at the preliminary hearing was insufficient to satisfy his right to confrontation.
DISCUSSION
1. The Trial Court Properly Concluded the People Had Exercised Reasonable Diligence in Attempting To Secure Kanongata’a’s Presence at Trial
Evidence Code section 1291 allows the use of former testimony if the witness is unavailable and the party against whom the former testimony is offered was a party to the proceeding in which the former testimony was given and had the right to confront and cross-examine the now-absent witness “with an interest and motive similar to that which he has at the hearing.” (Evid. Code, § 1291, subd. (a)(2); see People v. Carter (2005) 36 Cal.4th 1114, 1172; People v. Wilson (2005) 36 Cal.4th 309, 341.) The proponent of the evidence, here the People, has the burden of establishing unavailability. (People v. Cummings (1993) 4 Cal.4th 1233, 1296.) That burden is met when the witness is “[a]bsent from the hearing and 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.” (Evid. Code, § 240, subd. (a)(5).)
Reasonable diligence is “‘incapable of a mechanical definition,’ but it ‘connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.’” (People v. Cromer (2001) 24 Cal.4th 889, 904, quoting People v. Linder (1971) 5 Cal.3d 342, 346-347.) Factors to consider in analyzing diligence include the character of the efforts, whether the proponent of the evidence reasonably believed the witness would willingly appear, the timeliness of the search and whether the witness would have been produced if reasonable diligence had been exercised. (People v. Sanders (1995) 11 Cal.4th 475, 523.) A trial court’s due diligence determination is subject to de novo review. (Cromer, at pp. 892-893.)
The prosecutor initially had no reason to go to unusual lengths to secure Kanongata’a’s attendance at trial. A fully cooperative witness who, like his sister and brother-in-law, had testified at the preliminary hearing in September 2006, Kanongata’a told Sergeant Loman, the lead investigator, either that he was attempting to enroll in a local college or he was applying for a job locally at a college. In either case, the prosecutor reasonably believed Kanongata’a would be available and would willingly appear at trial. From the People’s perspective, Kanongata’a’s departure for a two-year mission in Australia in January 2007 was both unexpected and unforeseeable. (See People v. Wilson, supra, 36 Cal.4th at p. 342 [“the prosecution is not required, absent knowledge of a ‘substantial risk that this important witness would flee,’ to ‘take adequate preventative measures’ to stop the witness from disappearing”].)
Although Rodriguez faults the People for failing to keep track of Kanongata’a’s whereabouts after the preliminary hearing, the Supreme Court has stated it “could not properly impose upon the People an obligation to keep ‘periodic tabs’ on every material witness in a criminal case, for the administrative burdens of doing so would be prohibitive.” (People v. Hovey (1988) 44 Cal.3d 543, 564; accord, People v. Wilson, supra, 36 Cal.4th at p. 342; see People v. Wise (1994) 25 Cal.App.4th 339, 344 [prosecution did not have duty to keep track after preliminary hearing of citizen-victim witness who was not facing criminal charges and did not give the prosecution any reason to believe he would disappear].) The prosecutor simply did not have the burden to periodically contact Kanongata’a or to determine his location before the People and Rodriguez announced ready for trial in June 2007. (Compare People v Saucedo (1995) 33 Cal.App.4th 1230, 1236-1238, disapproved on another ground in People v. Cromer, supra, 24 Cal.4th at p. 901 and fn. 3 [trial court properly found witness unavailability when effort to local and serve witness began only on first day of trial] with People v. Mendieta (1986) 185 Cal.App.3d 1032, 1036 [due diligence not established when attempt to serve subpoena delayed until close to trial even though at time of preliminary hearing witness had advised chief investigating officer he would be leaving state].)
Because Kanongata’a left for Australia in January or early February 2007, many months before the parties announced ready for trial, we agree with the trial court’s observation that, even if the prosecution had initiated its efforts to contact Kanongata’a several months earlier, the result would have been the same.
Once the trial date was set and Sergeant Loman learned he could not serve Kanongata’a with a subpoena, the prosecution made reasonable efforts to locate him, interviewing members of his family and officials of the Mormon Church, and to determine if he could be contacted concerning his willingness to return to the United States to testify. Ultimately, the evidence at the Evidence Code section 402 hearing established that Kanongata’a had no personal access to a telephone or email and could only be reached through the Mormon Church and that, in any event, it was the policy of the church not to permit missionaries to return to the United States during their mission. At that point, any further efforts to procure his attendance would have been futile. (See People v. Smith (2003) 30 Cal.4th 581, 611 [“prosecution must take reasonable steps to locate an absent witness, but need not do ‘a futile act’”].)
In evaluating the sufficiency of the efforts made by the People under Evidence Code section 245, subdivision (a)(5), we must also consider the relative importance of the witness’s testimony. (People v. Cromer, supra, 24 Cal.4th at p. 904.) Kanongata’a’s testimony, although not insignificant, was not crucial to the People’s case. In his recorded statement to the police, played for the jury, Rodriguez admitted that he approached Kanongata’a and spoke to him before the shooting and also that he was armed at that time and showed Kanongata’a his handgun. The balance of Kanongata’a’s testimony added little to the prosecution’s case: Kanongata’a did not identify Rodriguez as the person who shot Olvera and was unable to recognize the type of gun Rodriguez displayed. Indeed, as discussed below, Kanongata’a’s description of Rodriguez as having a stocky build and dark, slicked-back hair -- apparently at odds with Kailahi’s and Cuevas’s identification of the shooter as bald -- is viewed by Rodriguez as helpful to the defense, not the prosecutor. Of course, like the People, Rodriguez did not serve Kanongata’a with a subpoena to appear as a witness at trial before he left for Australia.
Finally, the analysis in People v. St. Germain (1982) 138 Cal.App.3d 507, relied upon by Rodriguez, does not require a different result in this case. In St. Germain the court held the trial court had erred in admitting the preliminary hearing testimony of one of the defendant’s theft victims, a Curacao national who was a legal, permanent resident of the United States, but living in Holland at the time of trial. (Id. at p. 516.) Contacted by the prosecutor about returning to California to testify, the victim refused, saying it would be a hardship for her to do so. (Ibid.) The Court of Appeal concluded that showing was insufficient to establish unavailability: “The sine qua non completely missing from the proof adduced by respondent was evidence of an attempt ‘to procure his attendance by the court’s process.’ [Citation.] The prosecutor had available the remedy of a subpoena to be issued by the federal courts requiring the appearance as a witness before a ‘body designated by it’ -- here the superior court jury -- ‘of a national or resident of the United States who is in a foreign country. . . .’ (28 U.S.C. § 1783).” (Id. at p. 517.) Even if in many cases seeking a federal subpoena is a required element of a showing of due diligence when attempting to secure the presence at trial of a United States resident who is out of the country, it appears any attempt to obtain and serve such a subpoena in the case at bar would have been futile. As discussed, there was no reason for the prosecutor to have learned of Kanongata’a’s absence from the country until a trial date was set, approximately one week prior to the actual start of trial. Unlike the witness in St. Germain, who was in telephonic and written contact with the prosecutor, Kanongata’a was in a remote location in Australia without direct contact with anyone other than officials of the Mormon Church. Thus, it is highly unlikely any effort to initiate the subpoena process at that point would have been successful. (See People v. Smith, supra, 30 Cal.4th at p. 611.)
The St. Germain court held, although the subpoena would issue from a federal court, rather than the superior court, it nevertheless fell within the definition of “the court’s process” contained in Evidence Code section 240, subdivision (a)(5). (People v. St. Germain, supra, 138 Cal.App.3d at p. 517.)
A closely related question is currently pending before the Supreme Court in People v. Cogswell, review granted February 13, 2008, S158898: “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?”
In sum, the People’s efforts to locate and contact Kanongata’a, albeit not exhaustive, were reasonable. Although Rodriguez is correct that other avenues could have been pursued, “[t]hat additional efforts might have been made or other lines of inquiry pursued does not affect the [determination of due diligence.] [Citation.] It is enough that the People used reasonable efforts to locate the witness.” (People v. Cummings, supra, 4 Cal.4th at p. 1298; see People v. Diaz (2002) 95 Cal.App.4th 695, 706 [“‘[t]he law requires only reasonable efforts, not prescient perfection’”]; People v. Wise, supra, 25 Cal.App.4th at p. 344 [defendant’s contention the People “should have done more” to secure the attendance of the witness is “irrelevant to our analysis”].) Moreover, that the prosecution’s efforts to locate Kanongata’a were made close to the time of trial does not signify a lack of due diligence under the circumstances present here, where there was no prior suggestion Kanongata’a would not appear at trial. (Cf. People v. Cromer, supra, 24 Cal.4th at p. 904 [no due diligence when, despite learning two weeks after the preliminary hearing that witness had disappeared, prosecution’s “serious efforts to locate [witness] were unreasonably delayed, and investigation of promising information was unreasonably curtailed”].)
2. Defense Counsel’s Cross-examination of Kanongata’a at the Preliminary Hearing Satisfied Rodriguez’s Constitutional Right to Confront Witnesses
“Frequently, a defendant’s motive for cross-examining a witness during a preliminary hearing will differ from his or her motive for cross-examining that witness at trial. For the preliminary hearing testimony of an unavailable witness to be admissible at trial under Evidence Code section 1291, these motives need not be identical, only ‘similar.’ [Citation.] Admission of the former testimony of an unavailable witness is permitted under Evidence Code section 1291 and does not offend the confrontation clauses of the federal or state Constitutions -- not because the opportunity to cross-examine the witness at the preliminary hearing is considered an exact substitute for the right of cross-examination at trial [citation], but because the interests of justice are deemed served by balancing of the defendant’s right to effective cross-examination against the public’s interest in effective prosecution.” (People v. Zapien (1993) 4 Cal.4th 929, 975; accord, People v. Carter, supra, 36 Cal.4th at pp. 1172-1173 [applying reasoning of Zapien after United States Supreme Court’s decision in Crawford v. Washington, supra, 541 U.S. 36; “‘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’”]; see also People v. Smith, supra, 30 Cal.4th at p. 611 [“we have routinely allowed admission of the preliminary hearing testimony of an unavailable witness”].)
Rodriguez’s interest and motive for cross-examining Kanongata’a during the preliminary hearing were sufficiently similar to those existing at trial to permit the admission of Kanongata’a’s preliminary hearing testimony. The trial court accurately characterized the cross-examination as “fairly extensive.” Moreover, Rodriguez’s counsel closely questioned Kanongata’a about his description of the man who approached him (stocky build and dark, slicked-back hair) and his subsequent identification of Rodriguez as that man -- precisely the issues appellate counsel argues would have been covered during cross-examination at trial. In sum, the trial court properly ruled Kanongata’a’s preliminary hearing testimony was admissible under Evidence Code section 1291.
DISPOSITION
The judgment is affirmed.
We concur: ZELON, J., JACKSON, J.