People v. Blackwood

In People v. Blackwood (1983) 138 Cal.App.3d 939, the defendant was charged with attempting to escape from prison. A temporary employee of the prison testified at the preliminary hearing about the defendant's efforts to escape into his truck from a loading dock. By the time of trial, the witness no longer worked for the state, and he was with his wife on a driving tour to Alaska and Canada. The prosecution notified law enforcement authorities in Alaska and Canada and provided a description of the witness's vehicle. The witness was found in Alaska and the prosecution offered to pay his travel expenses to return. The witness refused to leave his wife and luggage, and explained they were about to board a ship for Seattle. The trial court found the witness was unavailable. (Id. at pp. 945-946.) Blackwood held the prosecution failed to use due diligence because it knew the witness's location and failed to use the Uniform Act to obtain the witness's attendance. (Blackwood, supra, 138 Cal.App.3d at p. 947.) "It is neither an answer nor a fulfillment of the requirements of the Evidence Code to suggest, as the People do, that the prosecution was not required to obtain interstate process because most likely neither Alaska nor Washington would have issued a subpoena due to the undue hardship to the witness. A guess by the prosecutor, the trial court or an appellate court about what the courts of Alaska or Washington might have done if requested to issue a subpoena for the witness pursuant to the uniform act, simply does not satisfy the requisite showing of inability under Evidence Code section 240, subdivision (a)(5). The prosecution's duty was to invoke the uniform act, not to decide whether such action would be fruitful. '"The possibility of a refusal is not the equivalent of asking and receiving a rebuff.'" "To the People's alternate contention that there was not enough time to secure such process, the answer is the same. The prosecution's burden under Evidence Code section 240, subdivision (a)(5) is to demonstrate that it 'exercised reasonable diligence but has been unable to procure the absent declarant's attendance by the court's process.' Reasonable diligence demands that the attempt be made to secure process under the uniform act. Only if it in fact becomes impossible to secure the process, has the prosecution sustained its burden. No such showing was made." (Id. at p. 947.)