Filed 6/10/16 P. v. Ortiz CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B259840

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA101692)
         v.

GERARDO ORTIZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, George
Genesta, Judge. Affirmed.


         Nancy J. King, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Idan Ivri,
Deputy Attorneys General, for Plaintiff and Respondent.


                                                       ******
       Regrettably, the prosecutor incorrectly informed the young victim of several sex
crimes that she had a choice whether to testify at trial. A witness under subpoena has a
duty to testify, not a choice. (People v.Smith (2003) 30 Cal.4th 581, 624.) Despite this
misstatement, the prosecutor ensured that the victim was present at defendant’s trial, the
court informed her of the importance of testifying, and the victim testified over two days
until she suffered an emotional breakdown. Under these circumstances, we conclude the
trial court properly found her unavailable and properly admitted her preliminary hearing
testimony. We affirm the judgment of conviction.
                              FACTS AND PROCEDURE
1. Charges Against Defendant
       In a seven-count information, defendant was charged with forcible rape of a victim
under 14 years, forcible lewd act upon a child, forcible oral copulation on a child under
14 years, sexual penetration by a foreign object on a child under 14, and two counts of
aggravated sexual assault of a child. Two prior convictions within the meaning of Penal
Code section 1203, subdivision (e)(4) and two (incorrectly alleged as three) prior
convictions within the meaning of section 667.5, subdivision (b) were alleged.
2. Monica—the Victim of Defendant’s Sex Crimes—Refuses to Testify
       Monica was 13, when the sex acts underlying defendant’s convictions occurred.
Monica’s mother rented a room in a house owned by defendant’s mother, where
defendant also lived. When she first reported defendant’s conduct to police (following
the urging of her friend), Monica was timid, shy, and quiet. She was emotional. Monica
did not want to discuss the incident with the nurse practitioner who examined her.
       Monica testified at the preliminary hearing, but her testimony was interrupted
because she became upset and needed a break. During her testimony, she scratched her
arm profusely causing it to bleed.
       On the day she was supposed to testify at defendant’s trial, Monica ran away from
home. She ran away to avoid testifying. Monica was located and escorted to court.




                                             2
         Prior to trial, the court held a hearing to determine whether Monica was
unavailable to testify. The nature of defendant’s appellate arguments require extensive
quotation from that hearing.
         First, the prosecutor commenced questioning Monica as follows:
         “Q [Prosecutor:] And you were explained that you have the right to choose
whether or not you’d like to testify today, correct?
         “A    Yes.
         “Q    Have you made a decision on whether or not you would like to testify
today?
         “A    Yes.
         “Q    And what is your decision?
         “A    I wouldn’t like to testify.”
         The court then inquired as follows:
         “The Court: Have you spoken to anyone or anyone spoken to you about why it
would be important for you to testify in this case?
         “The Witness: Yes.
         “The Court: And who have you spoken to?
         “The Witness: Mr.—
         “The Court: The prosecutor, the man that’s asking the questions or someone
else?”
         The prosecutor then resumed asking questions as follows:
         “Q    Have I spoken to you about whether it’s important for you to testify?
         “A    Yes.
         “Q    And have I given you the decision to choose whether or not you want to
testify?
         “A    Yes.
         “Q    And your choice is that you do not want to testify?
         “A    Yes.



                                               3
       “Q      Has any—do you think that speaking to a counselor or anything else would
help you in any way to make this decision?
       “A      Can you repeat the question[?]
       “Q      If you were to speak to a counselor appointed—a counselor appointed by
the court, would that help you in any way to make your decision on whether or not to
testify in this case?
       “A      No.
       “Q      And you’re I guess—so you do not want to testify in this case at all?
       “A      Yes.
       “Q      Do you think anything would change your mind in regards to that?
       “A      No.”
       The court then explained the importance of testifying to Monica:
       “The Court: [The prosecutor] told you it’s your decision whether you wish to
testify or not. However, you are a witness in this action and that the court considers it
very important that you testify in this case and the jury can hear your words and see you
as you testify. [¶] Do you understand the importance of that?”
       “The Witness: Yes.
       “The Court: And do you understand the importance and seriousness of the
charges in this case?
       “The Witness: Yes.
       “The Court: And the events that occurred that you were involved in? You recall
that, too, right?
       “The Witness: Yes.
       “The Court: And it’s very important not only for yourself but for the system to
operate that you be able to testify or testify in this trial rather than your prior testimony at
the previous proceeding at the preliminary hearing. Do you understand that?
       “The Witness: Yes.
       “The Court: Has anyone also talked to you about the importance for you to testify
such as your mother or anyone else encourage you to testify?


                                               4
       “The Witness: No.
       “The Court: If I had a counselor talk to you about those events that you
experienced and the importance for you to tell your story in front of the jury about what
happened, would that help you in deciding whether you may change your mind in
testifying?
       “The Witness: No.”
       The court then suggested other options that might persuade Monica to testify.
       “The Court: Would any amount of time, If I gave you a half hour or the rest of the
day to think about it and [the prosecutor] talked to you again or a counselor talked to you
again about the importance for you to testify, would that assist you in rethinking your
position at this time?
       “The Witness: No.
       “The Court: Is there a point in time when you decided you no longer wanted to
testify in this case? In other words, when did you reach that decision?
       “The Witness: Yesterday.
       “The Court: Yesterday, and was that when you were told that you needed to be in
court today to testify?
       “The Witness: Yes.
       “The Court: And when you were told you had to testify, what was your reaction?
Were you upset, or was your thinking that you maybe testify, not testify or did you decide
at that time you didn’t want to testify?
       “The Witness: I didn’t want to testify.
       “The Court: It’s my understanding that you were told to be here in court at what
time this morning?
       “The Witness: 8:00.
       “The Court: Eight o’clock. And you did not leave your house voluntarily to come
to court, did you?
       “The Witness: No.



                                             5
       “The Court: And why didn’t you want to come to court? Is it because you didn’t
want to testify in this case?
       “The Witness: No, I didn’t.
       “The Court: Excuse me?
       “The Witness: I didn’t want to testify.
       “The Court: It’s my understanding that you left your residence when the police
were coming to talk to you about coming and testifying; is that correct?
       “The Witness: Yes.
       “The Court: Would it be fair to say that you ran away?
       “The Witness: Yes.
       “The Court: And why did you run away?
       “The Witness: Because I didn’t want to be here.
       “The Court: Are you here because you were told you had to be here today?
       “The Witness: Yes.
       “The Court: How did you get to court?
       “The Witness: Detective Burke and Judy came for me.
       “The Court: Okay. Now, the law gives me certain powers in regards to witnesses
who do not want to testify and I normally exercise certain powers. However, there are
only certain things I can do because of your age and because of the nature of the crimes
involved here. But if I had you wait in an office here in this building . . . and you
couldn’t leave until I told you you could do so and that I would check on you or have you
come down in the morning or in the afternoon to see whether you changed your mind, if I
told that was maybe going to be the situation, would that cause you to rethink your
position?
       “The Witness: No.”
       Defense counsel stated that he “believe[d] the prosecution has fully exercised their
due diligence in getting the witness to appear.”
       The court indicated that Monica had no privilege upon which to ground her refusal
to testify. The court stated, “She is a witness who refuses to cooperate in testifying under


                                              6
oath before a jury.” Additionally, the court stated, “She’s a 14-year-old person at this
point who is insistent on not testifying under any circumstance. [¶] Therefore, the court
will not engage in the exercise of holding her here as a possible witness and her changing
her mind. And the court finds that under [Evidence Code section 240] this showing has
been made. That she is legally unavailable to testify at the time of trial.”
       At defense counsel’s request, the court agreed that Monica should appear before
the jury. Monica appeared before the jury and began testifying. She answered questions
posed by the prosecutor. In addition to a description of defendant’s conduct,1 Monica
testified that “it’s just too much for me and because I’m scared and anxious and right now
I’m really uncomfortable.” She testified that she was scared of being in the same room as
defendant. When Monica stopped answering questions and testified that she did not want
to answer all of the questions, the court instructed her: “As a witness you cannot choose
which questions you wish to answer or not answer. You’re supposed to answer all
questions.” The court indicated for the record that Monica “has sat with her shoulders
slumped and her face looking down, her affect has been muted except for a couple
instances where she teared up and cried quietly to herself.”
       The next day, Monica resumed testifying. She testified that it was hard for her to
answer questions because she did not like using defendant’s name. She testified that she
failed to answer all of the questions because it was hard for her to testify. After offering
her a tissue, the court asked Monica if it would help her to take a break, and Monica
answered affirmatively. At the end of the break, Monica refused to leave the bathroom.
A deputy sheriff, her mother, and a victim advocate tried to persuade her to come out of
the bathroom. Eventually Monica exited, sat on a bench, and cried.
       Monica was brought to the courtroom and the court asked her how she was
feeling. Monica responded, “Anxious and uncomfortable.” She said that she did not
want to be in court and that testifying was making her anxious. She did not want to
testify because testifying evoked bad memories.

1
       We have not summarized Monica’s substantive testimony because it was stricken.


                                              7
         Monica left the courtroom, and the court noted that when she testified the prior
day, she was holding a teddy bear and gripping it. The court was concerned about
Monica’s emotional state.
         The court evaluated the situation as follows: “This child is obviously disturbed,
obviously doesn’t want to be here and is being selective in terms of responding to
questions. A witness cannot be selective in regards to whether they wish to answer a
question or not answer a question. The record is quite clear in terms of how the court has
instructed this witness that she cannot pick and choose what questions she wishes to
answer where she does have a current recollection of the event within the content of the
question. The court will make such a finding that there was a—simply a willful refusal.
However, the willful refusal is based upon the court’s observations of her mental and
emotional state and the actual result is that we have a person here who simply is not
testifying according to her memory of the events and is not helpful to the trier of
fact . . . .”
         Defense counsel requested the case be dismissed because he was unable to cross-
examine Monica. Following the court’s rejection of that position, defense counsel
requested the court strike her substantive testimony but allow the jurors to make
judgments about Monica’s credibility based on their observations of her. The court
granted that motion.
         Monica’s preliminary hearing testimony was then read to jurors.
3. Monica’s Preliminary Hearing Testimony
         At the preliminary hearing, Monica testified that she did not want to be in court.
         Monica and defendant lived in the same home. On November 15, 2012, defendant
spoke to her while she was in the kitchen and made her feel uncomfortable. Monica told
defendant that she was 13 years old. At the time defendant spoke to her, Monica was
wearing elastic shorts.
         Shortly after their conversation in the kitchen, defendant was in his room and told
Monica to come to him. Defendant made her sit down on a chair. He did this by placing
his right hand on her left shoulder. When Monica was “about to leave” defendant


                                               8
grabbed her and sat her down on the bed and then laid her down on his bed. Defendant
kissed her. Monica was scared.
       On a drawing Monica indicated that defendant touched her in the groin.
Defendant pulled down her shorts. Defendant touched her inside and outside her vagina
with his right hand and with his penis. He also orally copulated her. Defendant put his
finger inside Monica’s vagina between five and seven times. He inserted his penis in her
vagina five times. Defendant held Monica’s shoulder to prevent her from getting out of
bed.
       Monica did not give defendant permission to touch her. She also did not tell him
to stop. She tried to get up once before the sexual conduct started.
       Monica was cross-examined by defense counsel.
4. Other Witnesses at Trial
       Deputy Sheriff Myra Sotomayor interviewed Monica at the police station. Monica
reported that defendant spoke to her in the kitchen and asked how old she was.
Defendant told her that she had a nice body and that he wanted to show her something in
his room. When Monica went into his room, defendant grabbed her arm and “sat her” on
a chair. Defendant sat down next to her and kissed her. Defendant locked the door.
       Defendant then laid her down on his bed and pulled up her shorts. When she tried
to get up, defendant pushed her down, at which point Monica froze. Defendant
penetrated her vagina about seven times with his fingers on his right hand. He orally
copulated her. He also put his penis inside her vagina.
       Detective Jeffrey Burke also interviewed Monica about defendant. She told him
that she was in the kitchen when defendant approached and complemented her.
Defendant asked how old she was and Monica responded that she was 13. Defendant
told her to come inside his room. When Monica agreed to speak to him, defendant
grabbed her arms and sat her down on a chair inside his room. Defendant began
complementing her and kissed her. Monica was scared.
       Defendant then laid her down on his bed, laid on top of her, and removed her
black shorts. Monica tried to sit up but defendant pushed her shoulders down. Defendant


                                             9
licked her vagina. He pulled her underwear to the side and inserted his fingers in her
vagina. He also kissed and licked her vagina. Defendant then opened his pants and
inserted his penis in her vagina. Monica did not scream; she was in shock and froze. She
was afraid if she yelled defendant would hurt her. Monica told Detective Burke that she
did not fight defendant. She did not immediately tell anyone about defendant’s conduct
because she was scared and embarrassed.
       A video of Monica’s forensic interview was played for jurors. During the
interview, Monica stated that she was in the kitchen and defendant told her how pretty
she was and complemented her. Monica felt uncomfortable. As she walked to her
bedroom, defendant told her he wanted to show her something in his room. Defendant
sat her down on the chair and leaned over to kiss her. Monica tried to get up and
defendant sat her down on the bed and closed the door. He took off her shorts, put his
mouth in her vagina, and then inserted his penis in her vagina. Defendant had his hands
on Monica’s shoulder when he inserted his penis in her vagina. Defendant also inserted
his finger in her vagina. Monica tried to get up but defendant pushed her down. Monica
was afraid if she yelled, defendant would hurt her. She explained, “. . . I wanted to yell, I
wanted to do something to stop it, but just, I was just . . . stopping myself from doing that
cause I didn’t want anything else to happen to me.”
       Physical evidence showed that semen was present in samples from Monica’s
vulva, anus, and hymen as well as the underwear she was wearing. Defendant was a
contributor to the semen found on Monica’s underwear with the possibility of a random
match equaling one in 9.28 quadrillion people. No conclusions could be drawn from the
other samples.
       Defendant’s mother was the sole defense witness. She testified that Monica
regularly spoke to defendant.
5. Verdict and Sentence
       Jurors convicted defendant of all charged crimes. Defendant admitted the prior
offenses.



                                             10
         Defendant was sentenced to an aggregate term of 47 years to life in prison.
Defendant was also sentenced to a two-year concurrent term on an unrelated case.
Sentence on the remaining counts was stayed.
         This appeal followed in which defendant challenged the use of Monica’s
preliminary hearing testimony.
                                        DISCUSSION
         “A criminal defendant has the right, guaranteed by the confrontation clauses of
both the federal and state Constitutions, to confront the prosecution’s witnesses. (U.S.
Const., 6th Amend.; Cal. Const., art. 1, § 15.) The right of confrontation ‘seeks “to
ensure that the defendant is able to conduct a ‘personal examination and cross-
examination of the witness, in which [the defendant] has an opportunity, not only of
testing the recollection and sifting the conscience of the witness, but of compelling him to
stand face to face with the jury in order that they may look at him, and judge by his
demeanor upon the stand and the manner in which he gives his testimony whether he is
worthy of belief.’” [Citations.] To deny or significantly diminish this right deprives a
defendant of the essential means of testing the credibility of the prosecution’s witnesses,
thus calling “into question the ultimate ‘“integrity of the fact-finding process.”’”’”
(People v. Herrera (2010) 49 Cal.4th 613, 620-621.) “‘[T]he right of confrontation and
cross-examination is an essential and fundamental requirement for the kind of fair trial
which is this country’s constitutional goal. Indeed, . . . to deprive an accused of the right
to cross-examine the witnesses against him is a denial of the Fourteenth Amendment’s
guarantee of due process of law.’” (Alvarado v. Superior Court (2000) 23 Cal.4th 1121,
1137.)
         Despite these important principles, the confrontation right is not absolute.
(Alvarado v. Superior Court, supra, 23 Cal.4th at p. 1138.) It “‘may, in appropriate
cases, bow to accommodate other legitimate interests in the criminal trial process.’” (Id.
at p. 1139.) “‘Traditionally, there has been “an exception to the confrontation
requirement where a witness is unavailable and has given testimony at previous judicial
proceedings against the same defendant [and] which was subject to cross-


                                              11
examination . . . .”’” (People v. Herrera, supra, 49 Cal.4th at p. 621.) “Pursuant to this
exception, the preliminary hearing testimony of an unavailable witness may be admitted
at trial without violating a defendant’s confrontation right.” (Ibid.) The principal issue in
this case is whether the trial court properly concluded Monica was unavailable.
1. The Trial Court Properly Found Monica Was Unavailable as a Witness
       Defendant argues that Monica had no right to refuse to testify. Defendant further
argues that the trial court erred in finding Monica unavailable and that the court should
have ordered Monica to testify and threatened adverse circumstances if she continued to
refuse to testify. As we shall explain, the trial court properly concluded Monica was
unavailable.
       “[A] witness who is physically available yet refuses to testify, after the court has
used all available avenues to coerce such testimony, is unavailable. This is true even
though such a witness does not fit neatly into one of the subdivisions of Evidence Code
section 240.” (People v. Francis (1988) 200 Cal.App.3d 579, 587.) “[T]he witness is no
more available when his body is present but he refuses to testify and the court is unable to
compel him to do so by its process.” (Id. at p. 588.) However, the trial court must take
“reasonable steps to induce the witness to testify unless it is obvious that such steps
would be unavailing.” (People v. Sul (1981) 122 Cal.App.3d 355, 365 [holding that
incarceration alone may not be reasonable]; People v. Walker (1983) 145 Cal.App.3d
886, 894 [following Sul].) When a witness is unavailable, the witness’s prior testimony
may be read if it was subject to cross-examination. (Evid. Code, § 1291; Crawford v.
Washington (2004) 541 U.S. 36, 59.)
       “Witnesses under subpoena and present in court have a duty to testify in
accordance with the rules of evidence, a duty trial courts have the power to enforce.”
(People v. Smith (2003) 30 Cal.4th 581, 624 (Smith).) However, the trial court’s ability
to enforce the duty to testify is limited in the context of a victim of a sexual assault. Code
of Civil Procedure section 1219 “prohibits a trial court from jailing for contempt a sexual
assault victim who refuses to testify against the attacker.” (People v. Cogswell (2010) 48
Cal.4th 467, 478.) “Although any crime victim may be traumatized by the experience,


                                             12
sexual assault victims are particularly likely to be traumatized because of the nature of
the offense. To relive and to recount in a public courtroom the often personally
embarrassing intimate details of sexual assault far overshadows the usual discomforts of
giving testimony as a witness. And the defense may, through rigorous cross-
examination, try to portray the victim as a willing participant. [Citation.] Also, seeing
the attacker again—this time in the courtroom—is for many sexual assault victims a
visual reminder of the harrowing experience suffered, addition to their distress and
discomfort on the witness stand.” (Ibid.)
       Our high court applied these principles in Smith, supra, 30 Cal.4th 581, a case
similar to this one. Smith involved a witness who refused to testify unless she could tell
jurors that she did not agree with the death penalty. As relevant here, our high court held:
the fact that “Mary G. was physically present in the courtroom and merely refused to
testify does not preclude a finding of unavailability. . . . Courts have admitted ‘former
testimony of a witness who is physically available but who refuses to testify (without
making a claim of privilege) if the court makes a finding of unavailability only after
taking reasonable steps to induce the witness to testify unless it is obvious that such steps
would be unavailing.’” (Id. at pp. 623-624, citation omitted.) The high court rejected the
defendant’s argument that the trial court should have fined the recalcitrant witness for
contempt. (Id. at p. 624.) It concluded that “[t]he court’s efforts to induce Mary G. to
testify were reasonable under the unusual circumstances of this case. The court
questioned her under oath and asked whether additional time or prosecution for criminal
contempt would change her mind. It had no power to incarcerate this victim of sexual
assault for refusing to testify concerning that assault.” (Ibid.)
       Smith is dispositive of defendant’s arguments. Although Smith recognized, as
defendant argues, that a witness under subpoena has a duty to testify, a present witness
who refuses to testify may be found unavailable if the court undertook reasonable steps to
induce the witness to testify. (Smith, supra, 30 Cal.4th at p. 624.) Here, the court took
reasonable steps. The court warned Monica that she was a witness and “the court
considers it very important that you testify in this case and the jury can hear your words


                                              13
and see you as you testify.” The court asked Monica if she would rethink her decision
not to testify if she spoke to a counselor, or if the court gave her more time. The court
asked if Monica were placed in a locked room if that would change her mind and make
her decide to testify. The court further insisted that Monica appear before the jury so that
the jury could observe her, causing Monica to actually testify. The court found Monica
unavailable after she testified over the course of two days and then proceeded to lock
herself in the bathroom after an emotional breakdown. The court was not required to take
additional steps to force Monica to continue testifying. (Ibid. [“Trial courts ‘do not have
to take extreme actions before making a finding of unavailability.’”].)
2. The Prosecutor’s Statements to Monica Did Not Require the Exclusion of Her Prior
Testimony
       Defendant argues that the prosecution caused Monica’s unavailability and
therefore the prosecution could not use her prior testimony. Defendant relies on
Evidence Code section 240, subdivision (b), which provides: “A declarant is not
unavailable as a witness if the exemption, preclusion, disqualification, death, inability, or
absence of the declarant was brought about by the procurement or wrongdoing of the
proponent of his or her statement for the purpose of preventing the declarant from
attending or testifying.” (Italics added.)
       Defendant did not raise this issue in the trial court. Assuming it is preserved, he
demonstrates no error. No fair reading of the record supported the interpretation that the
prosecutor had the purpose of preventing Monica from attending trial or testifying at trial.
Monica was an important prosecution witness who the prosecutor wanted to testify. The
prosecutor ensured that Monica was present in court. (Even defense counsel
acknowledged the prosecutor exercised due diligence.) Monica testified on direct
examination until she broke down emotionally, locked herself in the bathroom, and
emerged in tears. Although the prosecutor erred in telling Monica she had a choice to
testify, the prosecutor did not prevent or have the purpose of preventing Monica from
testifying.



                                             14
       Moreover, the prosecutor was not the cause of Monica’s reluctance to testify.
Instead, as our Supreme Court recognized in People v. Cogswell, supra, 48 Cal.4th at
page 478 sexual assault victims may be traumatized by the nature of the offense and
uncomfortable testifying in court. Monica’s statements to the court revealed that she fell
within this category of victims. Monica testified that “it’s just too much for me and
because I’m scared and anxious and right now I’m really uncomfortable.” She testified
that she was scared of being in the same room as defendant. It was defendant’s conduct,
not the prosecutor’s, that caused Monica’s refusal to testify.
       Defendant insinuates that the prosecutor committed prosecutorial misconduct by
telling Monica that she had the choice not to testify. Assuming that the prosecutor’s
misstatement of the law (which was corrected by the trial court) amounted to misconduct,
there was no prejudice because the trial court told Monica it was important for her to
testify, and she then testified until she suffered an emotional breakdown. Defendant
ignores the critical facts that the prosecutor forced Monica to appear in court even though
she ran away, and that Monica actually testified. These significant facts belie his
argument that his trial “was infected by the prosecutor’s advice to” the victim that she
could decide whether to testify.
3. Defendant Had the Same Motive for Cross-examination at the Preliminary Hearing
and at Trial
       The confrontation clause permits the introduction of prior testimony only if the
defendant had a similar motive for cross-examination in the prior proceeding. (Evid.
Code, § 1291, subd. (a)(2);2 Crawford v. Washington, supra, 541 U.S. at p. 59.)
Defendant argues that he did not have a similar motive at the preliminary hearing as at
trial. His argument lacks merit.

2
        Evidence Code section 1291, subdivision (a)(2) provides: “(a) Evidence of former
testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a
witness and: [¶] . . . [¶] (2) The party against whom the former testimony is offered
was a party to the action or proceeding in which the testimony was given and had the
right and opportunity to cross-examine the declarant with an interest and motive similar
to that which he has at the hearing.”

                                             15
       In both proceedings defendant sought to discredit the prosecution’s theory.
(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
preliminary hearing, he had the opportunity to do so. Moreover, it appears defense
counsel did seek to challenge Monica’s credibility. He went through the events with
Monica and elicited testimony that she did not tell defendant to stop. In short, the trial
court did not err in finding Monica unavailable and admitting Monica’s preliminary
hearing testimony.
                                      DISPOSITION
       The judgment is affirmed.




                                                  FLIER, J.
WE CONCUR:




       RUBIN, Acting P. J.




       GRIMES, J.




                                             16
