People v. Diaz (2002)

In People v. Diaz (2002) 95 Cal.App.4th 695, one officer unsuccessfully searched for a witness who was determined not to testify. ( Id. at pp. 706-707.) A detective found the witness and falsely told her he wanted to talk with her at the police station. He then took her to the courthouse so she could testify at the preliminary hearing. ( Id. at p. 707.) At the time of trial, he tried to compel her attendance in the same manner but was unsuccessful. He stated that he intended to give her the subpoena when he picked her up to take her to court to testify and that 'giving the witness advance warning would merely insure that she would leave the area that day to avoid testifying." (Ibid.) In other words, "serving a subpoena on the witness well in advance of trial would have only ensured her unavailability." (Ibid.) Applying an independent review standard, the appellate court agreed with the trial court that the prosecution acted with due diligence, even though the prosecution did not attempt to subpoena the witness before trial. In other words, the detective's tactics were found to be reasonable in light of the fact that the witness was "'. . . making a calculated effort to avoid service of process. . . .'" ( People v. Diaz, supra, 95 Cal.App.4th 695, 707.)