Filed 8/4/20
                        CERTIFIED FOR PUBLICATION

        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FIRST APPELLATE DISTRICT

                                DIVISION THREE


 THE PEOPLE,
           Plaintiff and Respondent,
                                              A154481
 v.
 ELJAROD LAWSON,                              (Alameda County
                                              Super. Ct. No. 619332)
           Defendant and Appellant.


       Following a retrial, a jury convicted Eljarod Lawson of three felony
counts relating to the sexual assault of Jane Doe 3. Lawson contends the
trial court violated his state and federal rights to confrontation when it
determined Jane Doe 3 was unavailable and admitted her testimony from his
first trial and the preliminary hearing. Lawson further contends Code of
Civil Procedure section 1219, subdivision (b), which prohibits the
incarceration of sexual assault victims for their refusal to testify, also
impaired his state and federal confrontation rights because the court had no
sufficient means to compel Jane Doe 3’s testimony. We affirm.
                                 BACKGROUND1
       In September 2007, Lawson forced Jane Doe 3 into his car, drove to a
remote area, where he brutally raped and sodomized her, and forced her to
orally copulate him. A little over a year later, in November 2008, Jane Doe 3


       Because the facts underlying the crimes are not relevant to the issues
       1

on appeal, we provide a general summary.

                                        1
saw Lawson while she was driving in her car. She called the police, who
came to her location and detained him. Jane Doe 3 participated in a field
show-up and identified Lawson as the man who raped her.
      Following this November 2008 field identification, Jane Doe 3 did not
hear from the police again until 2016, when Lawson was arrested in
connection with the rapes of Jane Doe 1 and Jane Doe 2. Jane Doe 3
participated in a photographic lineup, and she again identified Lawson.
      Lawson was charged with 10 counts relating to separate incidents of
sexual assault involving Jane Doe 1, Jane Doe 2, and Jane Doe 3. The jury
acquitted Lawson of the counts involving Jane Doe 1. But it could not reach
a verdict regarding any of the Jane Doe 2 and Jane Doe 3 counts. A mistrial
was declared as to those counts.
      Following the mistrial, Lawson was again charged with the counts of
sexual assault involving Jane Doe 2 and Jane Doe 3 that were the subject of
the first trial, as well as counts involving a new Jane Doe 1. Jane Doe 3
refused to testify in the second trial. The court found her unavailable as a
witness and admitted her prior testimony from the preliminary hearing and
the first trial into evidence.
      The jury was unable to reach verdicts on the counts involving Jane Doe
1 and Jane Doe 2. The jury convicted Lawson of forcible rape (Pen. Code,
§ 261, subd. (a)(2)), forcible oral copulation (id., former Pen. Code § 288a,
subd.(c)(2)(A)), and forcible sodomy (id., Pen. Code § 286, subd. (c)(2)(A))
committed against Jane Doe 3. The jury could not reach a verdict on the
remaining counts and enhancement allegations. The court declared a
mistrial, and, on the prosecution’s motion, such counts and allegations were
dismissed.




                                        2
                                 DISCUSSION
     I. No Error in Finding Jane Doe 3 Was Unavailable to Testify
A.    Background
      Before the second trial, the prosecutor filed a motion seeking to declare
Jane Doe 3 unavailable and admit her testimony from the preliminary
hearing and first trial. According to the motion, when representatives from
the district attorney’s office visited Jane Doe 3 at her home, she was angry
and adamant that she would not testify again. She expressed the need to
protect her emotional well-being.
      On a second visit to Jane Doe 3’s home, representatives from the
district attorney’s office served her with a subpoena to testify in this case.
After receiving it, Jane Doe 3 said she would not come to court to testify.
When she was told a subpoena was a court order, she explained that “while
she did not want to disrespect the court, she felt she could not come to court
again.” Jane Doe 3 wrote a letter to the court explaining she would “not
attend court on this matter or partake [in] this case [d]ue to the trauma this
has cause[d] by resurf[a]cing into [her] life.” She continued, “After I testified
I felt as if everything that happened was my fault, being ridiculed and
shamed, has forced me to backslide in my life. I am trying to move forward
not backwards.”
      At the behest of defense counsel, the trial court issued an order to show
cause for Jane Doe 3’s appearance, and appointed counsel for her. The
prosecution served Jane Doe 3 with the order to show cause as directed.
      On January 11, 2018, Jane Doe 3 appeared with her court-appointed
attorney. The court expressed its “intention to order Jane Doe 3 back to
testify in this trial[.]” Counsel stated that he had lengthy conversations with
Jane Doe 3 and “reviewed some of the materials that have been presented



                                        3
before [the court] about her desire [not] to participate” in the trial. According
to counsel, Jane Doe 3 “ha[d] extremely strong feelings about not
participating in this trial for a whole host of reasons.” Counsel did not
believe “that there’s going to be any change any time for any reason where
[Jane Doe 3] will testify in this case for the prosecution or on behalf of the
defense.” After hearing further argument, the court ordered Jane Doe 3 to
return to court with her lawyer on January 24.
      On January 24, Jane Doe 3, her lawyer, and the parties appeared for
another hearing on her unwillingness to testify. Jane Doe 3 was sworn as a
witness and said that she had previously testified at the preliminary hearing
and at the prior trial, and that she was not “prepared to testify a third time.”
When the court asked her, “If I ordered you to testify, would you testify?”
Jane Doe 3 replied, “With all due respect, no, sir.” It was made clear to Jane
Doe 3 that the case would be tried to a different jury and that the defense had
a right to have that jury observe her to judge her credibility. Jane Doe 3
reiterated that she did not “want to partake in this hearing.” The court
asked her why, and Jane Doe 3 answered, “I just don’t want to. I don’t want
to re-live the situation.” When she was asked to specify how the situation
affected her, Jane Doe 3 said “[i]n numerous ways” and that she did not
“really want to speak about that.” Jane Doe 3 understood that it was “within
[the court’s] discretion to find [her] in contempt of court for not testifying, and
as a result, to fine [her] a maximum of $1,000.”
      After hearing argument, the court declined to find Jane Doe 3 in
contempt of court, reasoning that she “has been respectful to the Court; has
made all appearances that the Court has requested; has been respectful on
the stand.” The court relied on People v. Cogswell (2010) 48 Cal.4th 467
(Cogswell) to find Jane Doe 3 unavailable to testify. The court observed that



                                        4
even if Jane Doe 3 was held in contempt, “under 1219(b) of the Code of Civil
Procedure . . . [it] would not have been able to confine her.” Relying on People
v. Smith (2003) 30 Cal.4th 581 (Smith), the court determined that such a
finding of contempt “is an extreme action [that] circumvents the spirit of
1219(b) of the Code of Civil Procedure.” The court concluded that Jane Doe 3
was unavailable for trial under section 240, subdivision (a)(4), and her prior
testimony was admissible.
B.    Applicable Law and Standard of Review
      “A criminal defendant has the right, guaranteed by the confrontation
clauses of both the federal and state Constitutions, to confront the
prosecution’s witnesses.” (People v. Herrera (2010) 49 Cal.4th 613, 620
(Herrera ).) However, there is “ ‘ “an exception to the confrontation
requirement where a witness is unavailable and has given testimony at
previous judicial proceedings against the same defendant [and] was subject to
cross-examination . . . .” ’ ” (Id. at p. 621.) This exception “is codified in the
California Evidence Code. [Citation.] Section 1291, subdivision (a)(2),
provides that ‘former testimony,’ such as preliminary hearing testimony, is
not made inadmissible by the hearsay rule if ‘the declarant is unavailable as
a witness,’ and ‘[t]he 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.’ ” (Ibid., fns. omitted.)2
      But not every witness absent from the proceedings is considered to be
unavailable. “A witness who is absent from a trial is not ‘unavailable’ in the
constitutional sense unless the prosecution has made a ‘good faith effort’ to


      2 Lawson does not contend he had insufficient prior opportunity to
cross-examine Jane Doe 3.

                                         5
obtain the witness’s presence at the trial.” (Herrera, supra, 49 Cal.4th at p.
622.) The “Evidence Code features a similar requirement for establishing a
witness’s unavailability. Under section 240, subdivision (a)(5) . . ., a witness
is unavailable when he or she 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.’ ” (Ibid.)
      Here, the trial court determined that Jane Doe 3 was unavailable
under a similar provision; Evidence Code section 240, subdivision (a)(4)
(section 240 (a)(4)), provides that a witness is unavailable when he or she is
“[a]bsent from the hearing and the court is unable to compel his or her
attendance by its process.” In Herrera, our Supreme Court recognized that
while unavailability under section 240 (a)(4) may not require a proponent’s
“reasonable diligence” to secure a witness’s attendance at a hearing,
“unavailability in the constitutional sense nonetheless requires a
determination that the prosecution satisfied its obligation of good faith in
attempting to obtain [the witness’s] presence.”
(Herrera, supra, 49 Cal.4th at pp. 622-623, italics added.) Thus, we must
consider whether the prosecutor’s efforts in producing Jane Doe 3 for trial
“were reasonable under the circumstances presented,” and whether the court
was unable to compel her attendance by process. (Id. at p. 623.)
      When a witness, like Jane Doe 3, has been the victim of sexual assault,
the determination of reasonableness must take into account the import of
Code of Civil Procedure section 1219, subdivision (b) (Section 1219(b)). It
provides, in relevant part, “Notwithstanding any other law, no court may
imprison or otherwise confine or place in custody the victim of a sexual
assault . . . for contempt when the contempt consists of refusing to testify
concerning that sexual assault . . . .” (Section 1219(b).) Our Supreme Court



                                        6
has held this provision “reflects the Legislature’s view that sexual assault
victims generally should not be jailed for refusing to testify against the
assailant.” (Cogswell, supra, 48 Cal.4th at p. 478.)
      “We review the trial court’s resolution of disputed factual issues under
the deferential substantial evidence standard [citation], and independently
review whether the facts demonstrate prosecutorial good faith and due
diligence [citation].” (Herrera, supra, 49 Cal.4th at p. 623.)
C.    Analysis
      Lawson contends the trial court erred when it found Jane Doe 3 was
unavailable because her presence in court and her refusal to testify, without
a finding of contempt, is not a circumstance described within Evidence Code
section 240. According to Lawson, Evidence Code section 240 provides “an
exclusive definitional list of the categories of unavailability cognizable under
the Evidence Code.”
      Such a narrow construction of section 240 was rejected in Smith by the
California Supreme Court. (Smith, supra, 30 Cal.4th at pp. 623-624.) There,
a witness came to court but refused to testify unless she could tell jurors that
she was against the death penalty. As relevant here, the court explained that
“[t]he circumstance that Mary G. was physically present in the courtroom
and merely refused to testify does not preclude a finding of unavailability.
Evidence Code section 240, which defines when a witness is unavailable, does
not specifically describe this situation, but that statute does not ‘state the
exclusive or exact circumstances under which a witness may be deemed
legally unavailable for purposes of Evidence Code section 1291.’ (People v.
Reed (1996) 13 Cal.4th 217, 228.) 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



                                        7
only after taking 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, 364-365 [(Sul)] (plur. opn.), citing Mason v. United
States (10th Cir. 1969) 408 F.2d 903; accord, People v. Francis (1988) 200
Cal.App.3d 579, 584; People v. Walker (1983) 145 Cal.App.3d 886, 894.)”
(Smith, supra, 30 Cal.4th at p. 624.)
      The efforts to induce Jane Doe 3 to testify in this case appear
reasonable under the circumstances. Members of the prosecution team spoke
to Jane Doe 3 on at least two occasions to discuss her testimony at trial. Each
time, she was adamant that she would refuse to testify. Even after the
prosecution team served Jane Doe 3 with a subpoena and advised her of the
consequences of ignoring it, she still refused to cooperate. Jane Doe 3 wrote a
letter to the court stating that she did not want to testify. Thereafter, at the
court’s direction, the prosecution served Jane Doe 3 with an order to show
cause. She appeared at two hearings with her court-appointed counsel, who
advised the court of Jane Doe 3’s steadfast desire not to testify. At one of the
hearings, the court questioned Jane Doe 3 and asked whether finding her in
contempt and imposing a $1,000 maximum fine would influence her to
change her mind. She said it would not. Because Jane Doe 3 was being
asked to testify about her rape and assault in 2008, section 1219(b) applied,
and the court “had no power to incarcerate this victim of a sexual assault for
refusing to testify concerning that assault. (Code Civ. Proc., § 1219, subd.
(b).)” (Smith, supra, 30 Cal.4th at p. 624.)
      Lawson argues that notwithstanding section 1219(b), the court was
required to find Jane Doe 3 in contempt before it could deem her unavailable.
We disagree. “ ‘Trial courts do not have to take extreme actions before
making a finding of unavailability.’ ([]Sul, supra, 122 Cal.App.3d at p. 369



                                        8
[].)” (Smith, supra, 30 Cal.4th at p. 624.) Instead, Smith requires only that
the court take “reasonable steps to induce the witness to testify unless it is
obvious that such steps would be unavailing.” (Smith, supra, 30 Cal.4th at p.
624.)
        Although Lawson contends the trial court could have imposed a fine or
otherwise done more to persuade Jane Doe 3 to testify, additional efforts are
not required when “it is obvious that such steps would be unavailing.”
(Smith, supra, 30 Cal.4th at p. 624, quoting Sul, supra, 122 Cal.App.3d at
pp. 364-365.) The trial court observed Jane Doe 3’s demeanor, affect, and
listened to her responses. After considering her apparent resolve, the court
found that there was nothing further it could do to coerce her testimony. The
record supports this conclusion, and we therefore affirm the finding. (People
v. Alcala (1992) 4 Cal.4th 742, 778-780 [using substantial evidence standard
to affirm trial court finding that witness was unavailable].) In the
circumstances, a finding of contempt would be a symbolic gesture and
without practical impact. “The law neither does nor requires idle acts.” (Civil
Code § 3532.)
        Following and applying Smith, we conclude the trial court properly
found Jane Doe 3 was unavailable to testify and did not err when it admitted
her prior testimony into evidence.
        We are not persuaded by Lawson’s suggestion that Smith and similar
cases were abrogated by the 2010 addition of subdivision (a)(6) to
to Evidence Code section 240. Under subdivision (a)(6), a declarant who is
“[p]ersistent in refusing to testify” about the subject of his or her out-of-court
statement “despite having been found in contempt” for refusing to testify is
“unavailable.” (Evid. Code, § 240, subd. (a)(6).) The addition of this variant
of refusal to testify to the statutory definition of unavailability is entirely



                                         9
consistent with prior case law. (Smith, supra, 30 Cal.4th at p. 624; People v.
Reed, supra, 13 Cal.4th at pp. 226-227; People v. Francis, supra, 200
Cal.App.3d at pp. 585-587.) It did not, as Lawson suggests, abrogate those
holdings. His reliance on the maxim of statutory construction expressio unius
est exclusio alterius—that is, “[t]he expression of some things in a statute
necessarily means the exclusion of other things not expressed” (Gikas v.
Zolin (1993) 6 Cal.4th 841, 852)—does not help him.
      We presume the Legislature was aware of existing law when it added
subdivision (a)(6) to Evidence Code 240. (People v. Landry (2016) 2 Cal.5th
52, 105; People v. Childs (2013) 220 Cal.App.4th 1079, 1104.) Included
within our presumption is the Legislature’s awareness that under Smith a
witness may be unavailable even if he or she did “not fit neatly into one of the
subdivisions of Evidence Code 240.” (People v. Francis, supra, 200
Cal.App.3d at p. 587.) Had the Legislature wanted to so limit the concept of
unavailability to an exclusive definitional list, it would have done so when it
enacted subdivision (a)(6). It did not. If anything, the legislative history of
the 2010 amendment to section 240 reflects an intent to expand the definition
of unavailability. (Assem. Com. on Judiciary, Analysis of Assem. Bill No.
1723 (2009-2010 Reg. Sess.) p. 2; Sen. Com. on Public Safety, Analysis of
Assem. Bill No. 1723 (2009-2010 Reg. Sess.) June 29, 2010, p. 12.)
      The 2010 addition of subdivision (a)(6) to Evidence Code section 240 did
not abrogate prior case law. Instead, this amendment expanded the
statutory definition of unavailability and did not affect the trial court’s ability
to find Jane Doe 3 was unavailable.
      The admission of Jane Doe 3’s prior testimony did not violate Lawson’s
statutory or constitutional rights.




                                        10
                   II. Code of Civil Procedure section 1219
         Lawson argues that the effect of Code of Civil Procedure section 1219,
subdivision (b) vitiates the power of the court to compel witness testimony
and, as a result, unconstitutionally impairs his right to confront adverse
witnesses. He says this is so because section 1219 (b) is, in effect, a grant of
“immunity” and the court can no longer coerce a witness to testify by
incarceration for contempt. Thus, he says, section 1219 (b) “vitiated the
finding of unavailability[,]” thereby resulting in a deprivation of his right to
confrontation.
         “Code of Civil Procedure section 1219, originally enacted in 1872,
provides that when a person has been found in contempt of court for refusal
to perform an act that the person is capable of performing, the court may
order the person jailed until that act is performed. (In re Mark A. (2007) 156
Cal.App.4th 1124, 1143.)” (Cogswell, supra, 48 Cal.4th p. 477.) Subdivision
(b), was added to section 1219 in 1984 (ibid.), and proscribes the
imprisonment of sexual assault victims who refuse to testify. “It is the intent
of the Legislature that a victim of sexual assault shall be accorded special
consideration because of the severity of the emotional harm resulting from
this type of crime. It is the further intent of the Legislature that this act
shall not be interpreted to excuse any person other than a victim of sexual
assault from the prescribed penalties for contempt.” (Stats. 1984, Ch. 1644,
Sec.3)
         Lawson correctly points out that courts have “inherent power to punish
for contempts of court. [Citations].” (In re McKinney (1968) 70 Cal.2d 8, 10-
11.) But the contempt power is not absolute. Rather, its exercise is regulated
by statute, and the Legislature may place reasonable limitations on the
court’s contempt power. (Id. at p. 11.)



                                         11
      Although Lawson’s briefs do not go so far as saying that standing alone
section 1219 (b) is unconstitutional, his implicit argument is that punishment
for contempt is an inherent power which the Legislature cannot curtail.
But our Supreme Court has explained that legislative limits on the contempt
power are unconstitutional when the Legislature “completely strip[s] the
courts of power to treat or punish as contempt a class of offenses.”
(McKinney, supra, 70 Cal.2d at p. 12, citations omitted.)
      Section 1219 (b) does not deprive the court of all power to punish a
class of contempts. Indeed, the trial court may impose a fine and adjudge a
recalcitrant sexual assault victim to be in contempt. (See Code Civ. Proc.,
§ 1218, subd. (a).) Section 1219 (b) merely “prohibits a trial court from jailing
for contempt a sexual assault victim who refuses to testify against the
attacker.” (Cogswell, supra, 48 Cal.4th at p. 478.) This limitation is
reasonable in light of the unique circumstances faced by witnesses who are
victims of sexual assault.
      Cogswell, although virtually ignored by Lawson,3 informs our decision.
There, the California Supreme Court explained: “Although any crime victim
may be traumatized by the experience, 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 a 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. (See

      3 In re Michael G. (1988) 44 Cal.3d 283, superseded by statute as stated
in In re A.N. (2020) 9 Cal.5th 343, 354, cited by Lawson, is inapposite as it
did not involve contempt proceedings regarding a sexual assault victim. (Id.
at p. 287.) Rather, the question before the court was whether the juvenile
court could exercise its contempt power to detain a minor during non-school
hours. (Ibid.)

                                       12
generally, Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the
Courtroom (1977) 77 Colum. L.Rev. 1.) Also, seeing the attacker again—this
time in the courtroom—is for many sexual assault victims a visual reminder
of the harrowing experience suffered, adding to their distress and discomfort
on the witness stand. (See Ellison, The Adversarial Process and the
Vulnerable Witness (2001) pp. 16–17.) It comes as no surprise, therefore,
that often a victim of sexual assault is hesitant to report the crime. Even
fewer such crimes would be reported if sexual assault victims could be jailed
for refusing to testify against the assailant.
      “Recognizing these concerns, the California Legislature in 1984
amended Code of Civil Procedure section 1219 to add subdivision (b). (Sen.
Bill No. 1678 (1983–1984 Reg. Sess.) § 2.) That provision, as mentioned
earlier, prohibits a trial court from jailing for contempt a sexual assault
victim who refuses to testify against the attacker. As the author of that
legislation explained to his fellow senators: ‘The purpose of [section 1219 (b)]
is not only to protect victims of sexual assault from further victimization
resulting from imprisonment or threats of imprisonment by our judicial
system, but also to begin to create a supportive environment in which more
victims might come forward to report and prosecute [perpetrators of] sexual
assault.’ (Sen. Floor Statement by Sen. Dan McCorquodale on Sen. Bill No.
1678, May 1, 1984.) Enactment of section 1219 (b) reflects the Legislature’s
view that sexual assault victims generally should not be jailed for refusing to
testify against the assailant.” (Cogswell, supra, 48 Cal.4th at p. 478.)
      Neither is the absence of confinement as a remedy for contempt a new
or novel development in the trial courts. It has long been the case that a
contempt finding may have little or no coercive effect for witnesses who are
already incarcerated. (People v. Walker (1983) 145 Cal.App.3d 886, 894.)



                                        13
Here, after inquiry, the trial court concluded that Jane Doe 3 was not willing
to testify, and her testimony could not be coerced by threat of contempt or
imposition of a fine. The conclusion that she was legally unavailable to
testify and use of her prior testimony did not violate Lawson’s right to
confront adverse witnesses.
      Code of Civil Procedure section 1219 (b) is a reasonable limit on the
trial court’s contempt power enacted to spare victims of sexual assault from
further victimization. Accordingly, the admission of Jane Doe 3’s prior
testimony did not violate Lawson’s state and federal confrontation rights.
                               DISPOSITION
      The judgment is affirmed.




                                      14
                                 _________________________
                                 Siggins, P.J.


WE CONCUR:


_________________________
Petrou, J.


_________________________
Jackson, J.




People v. Lawson, A154481


                            15
Trial Court:                             Alameda County Superior Court


Trial Judge:                             Hon. Allan D. Hymer


Counsel:

Mark David Greenberg, Second District Appellate Project, under
appointment of the Court of Appeal, for Appellant.


Xavier Becerra, Attorney General, Jeffrey M. Laurence, Senior Assistant
Attorney General, Donna M. Provenzano, Supervising Deputy Attorney
General, Victoria Ratnikova, Deputy Attorney General, for Respondent.




                                    16
