People v. Daboul

Defendant does not contend that the proof of absence from the state was insufficient. He does contend that where, as here, identification was in issue and evidence on that point was to be offered by reading the transcript from the preliminary examination, the People were obligated, in spite of the clear language of section 686 of the Penal Code, both to demand security for these witnesses’ appearance (Pen. Code, §§ 878 and 879) and to invoke the procedure outlined in sections 1334 and following of the Penal Code, which sections provide a method for the compulsory attendance in the courts of this state of witnesses who are outside the state.^[1] He argues that there is a constitutional right of confrontation and that this right is violated by the use of testimony at a previous hearing, at least where all available methods for securing personal attendance have not been exhausted.

The point has been decided against him. In People v. Ashley (1954) 42 Cal.2d 246 , 272-273 [ 267 P.2d 271 ], the Supreme Court of this state said: “Defendant contends that the reading of [a witness’ testimony at a preliminary examination] at the trial deprived him of the right of confrontation in violation of the United States Constitution. Even if this right is guaranteed under the due process clause of the Fourteenth Amendment to the United States Constitution as contended by the defendant (see Snyder v. Massachusetts, 291 U.S. 97 , 106 [ 54 S.Ct. 330 , 78 L.Ed. 674 , 90 A.L.R. 575 ]), there is no merit in the contention. ‘ The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face-to-face, and of subjecting him to the ordeal of cross-examination.’ (Mattox v. United States, 156 U.S. 237 , 244 [ 15 S.Ct. 337 , 39 L.Ed. 409 ].) Defendant had that advantage at the preliminary hearing."

We can see nothing in the recent decisions of the United States Supreme Court relied on by defendant (Mapp v. Ohio (1961) 367 U.S. 643 [ 81 S.Ct. 1684 , 6 L.Ed.2d 1081 , 84 A.L.R. 2d 933 ], and Malloy v. Hogan (1964) 378 U.S. 1 [ 84 S.Ct. 1489 , 12 L.Ed.2d 653 ]), which in any way affects the decision in the Ashley case.

Defendant, as we understand him, argues also that,

Defendant contends that he was arrested, without a warrant, and without probable cause and, therefore, that the evidence obtained as a result of that arrest, and the search which followed, was not lawfully admitted. We need not consider the circumstances which led to the arrest and search, since the record shows no objection, at any time, to the admission of this evidence. It is true that the pry bar, found on defendant at the time of his arrest and identified as matching the marks left by the burglar, was introduced at a stage when probable cause was the subject before the court. But when, just before the ease was submitted to the jury, court and counsel discussed which exhibits were to be sent to the jury room,^[2] no objection to the inclusion of this exhibit was made. Not having objected at the trial, the point cannot now be raised.

Finally, it is contended that defendant was interrogated, after his arrest, in violation of the rule established in People v. Dorado (1965) 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ]. There can be no question that the four