Petition for Writ of Certiorari — Eljarod Lawson, Petitioner v. California

Supreme Court briefJan 5, 2021

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NO.

IN THE

SUPREME COURT OF THE UNITED STATES

ELJAROD LAWSON, PETITIONER

VS.

STATE OF CALIFORNIA, RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL,

FIRST APPELLATE DISTRICT, DIVISION THREE

PETITION FOR A WRIT OF CERTIORARI

MARK D. GREENBERG

Attorney at Law

California State Bar No. 99726

484 Lake Park Avenue, No. 429

Oakland, CA 94610

(510) 452-3126

Counsel of Record for Petitioner,

ELJAROD LAWSON

QUESTIONS PRESENTED

A. Was the Sixth Amendment right of confrontation violated when the court

allowed the use of the prior transcripted testimony of the complaining witness in

this sexual assault case, who was physically available to testify, because her

unprivileged refusal to testify was recognized as a type of witness “unavailability”

under state law, or is Sixth Amendment “unavailability,” which is sufficient to

predicate the constitutional use of testimonial hearsay, confined to historic

categories such as death, illness, insanity, or the contrivance of the defendant to

render the witness unavailable, that were extant at common law at the time the

Sixth Amendment was adopted?

B. Was the Sixth and Fourteenth Amendment violated by a state law that

conferred immunity on the complaining witness in a sexual assault case against

any power of the court to impose an incarceratory sanction for refusal to testify in a

case in which the complaining witness, without privilege, refused to testify?

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

TABLE OF CONTENTS

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

SUMMARY OF FACTS

AND PROCEDURAL BACKGROUND

REASONS FOR GRANTING CERITIORARI

CERTIORARI SHOULD BE GRANTED TO

DETERMINE WHETHER THE HISTORICAL

APPROACH TO THE SIXTH AMENDMENT AS

MANFEST IN CRAWFORD AND GILES APPLIES

ALSO TO THE DETERMINATION OF TYPES OF

UNAVAILABIITY SUFFICIENT, UNDER THE

SIXTH AMENDMENT, TO ALLOW THE USE OF

A DECLARANT’S TESTIMONIAL HEARSAY

The Interpretative Background of Evidence Code section 240

The Sixth Amendment Claim

iii

CERTIORARI SHOULD BE GRANTED TO

DETERMINE WHETHER THE IMMUNITY

CALIFORNIA CONFERS ON THE

COMPLAINING WITNESS IN A CRIMINAL

SEXUAL ASSAULT CASE WHO COMMITS

CONTEMPT OF COURT IN REFUSNG TO

ANSWER QUESTIONS, IS IN VIOLATION OF

THE SIXTH AND FOURTEENTH AMENDMENTS

IN LEAVING THE TRIAL COURT WITH ONLY

SUB-MINIMAL POWER TO INDUCE

COMPLIANCE WITH CONSTITUTIONAL

MANDATES OF CONFRONTATION AND DUE

PROCESS

CONCLUSION

APPENDIX A: California Court of Appeal Decision on Direct Appeal

APPENDIX B: California Court of Appeal Order denying Petition for Rehearing

APPENDIX C: California Supreme Court Order denying Discretionary Review

TABLE OF AUTHORITIES

Cases

Barber v. Page, 390 U.S. 729 (1968)

18,26

Brooks v Tennessee (1972) 406 U.S. 605

32-33

California v. Green, 399 U.S. 149 (1970)

19,26

Coronado v. State 351 S.W.3rd 315 (Tex.Crim.App. 2011)

Coy v. Iowa, 487 U.S. 1012 (1988)

19,27

Crawford v. Washington, 541 U.S. 36 (2004)

13,20-22,23

Davis v. Washington, 547 U.S. 813 (2006)

Giles v. California, 554 U.S. 353 (2008)

13,22-24

Glasser v. United States, 315 U.S 60 (1942)

Government of Virgin Islands v. Aquino, 378 F.2nd 540 (3rd Cir. 1967) 26

In re Keller, 49 Cal.App.3d 663 (1975)

In re Michael G., 44 Cal.3rd 283 (1988)

John Roe, Inc. v. United States, 142 F.3rd 1416 (11th Cir. 1998)

Maryland v. Craig, 497 U.S 836 (1990)

27-29

Mattox v. United States, 156 U.S. 237, 242 (1895)

People v. Cogswell, 48 Cal.4th 467 (2010)

11,17

People v. Francis, 200 Cal.App.3rd 579 (1988)

People v. Giles, 40 Cal.4th 833 (2007)

People v. McKenzie, 34 Cal.3rd 616 (1983)

31-32

People v. Reed, 13 Cal.4th 217 (1995)

People v. Rojas, 15 Cal.3rd 540 (1975)

14-15,20,26

People v. Smith, 30 Cal.4th 581 (2003)

11,16,17,32

People v. Sul, 122 Cal.App.3rd 355 (1981)

15-16

State v. Coy 397 N.W.2nd 730, 734 (Ia.1986)

United States v. Cox, 871 F.3rd 479 (6th Cir. 2017)

United States v. Mason, 408 F.2nd 903 (10th Cir. 1969)

United States v. Owens, 484 U.S. 554 (1988)

United States v. Yates, 438 F.3rd 1307 (11th Cir. 2006)

West v. Louisiana, 194 U.S. 258 (1904)

14,25-26

Statutes

Cal. Evid. Code, § 240

2-3 et passim.

Cal. Evid. Code, § 1291

Cal. Code of Civ. Proc., 1218

3,30

Cal. Code of Civ. Proc., 1219

3-4,30

Constitutional Provisions

U.S. Const., Amend. 6

2 et passim.

U.S. Const., Amend. 14

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the

judgment below.

OPINIONS BELOW

The decision of the California Court of Appeal, First Appellate District,

Division Three, in People v. Lawson, 52 Cal.App.5th 1121, 267 Cal.Rptr.3rd 183

(2020), appears here in slip form as Appendix A. The decision was filed on

August 4, 2020. A petition for rehearing to that Court was denied on September 3,

2020, a copy of which order is attached as Appendix B. The California Supreme

Court denied discretionary review on October 14, 2020, and a copy of the order in

this regard is attached as Appendix C.

JURISDICTION

A timely petition for discretionary review to the California Supreme Court

from the Court of Appeal decision in this case was denied on October 14, 2020.

This petition is timely filed within the time allotted by Supreme Court Rule 13.1 as

modified by this Court’s COVID order of March 19, 2020, in accord with which,

the time to petition for certiorari in this case expires on March 15, 2021. (See

Supreme Court Rule 30.1). The jurisdiction of this Court is invoked pursuant 28

U.S.C. section 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

1. Federal Constitutional Provisions:

United States Constitution, Amendment 6: “In all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with the witnesses against

him . . . .”

United States Constitution, Amendment 14: “No State . . . shall . . .

deprive any person of life, liberty, or property, without due process of law . . . .”

2. State Statutory Provisions:

California Evidence Code, section 240(a): (a) . . . “ ‘[U]navailable as a

witness’ means that the declarant is any of the following: [¶] (1) Exempted or

precluded on the ground of privilege from testifying concerning the matter to

which his or her statement is relevant. (2) Disqualified from testifying to the

matter. (3) Dead or unable to attend or to testify at the hearing because of thenexisting physical or mental illness or infirmity. (4) Absent from the hearing and

the court is unable to compel his or her attendance by its process. (5) Absent 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. (6) Persistent in refusing to testify concerning the subject matter of the

declarant’s statement despite having been found in contempt for refusal to testify.”

California Evidence Code section 1291(a): “(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.”

California Code of Civil Procedure, section 1218(a): “(a) Upon the

answer and evidence taken, the court or judge shall determine whether the person

proceeded against is guilty of the contempt charged; and if it be adjudged that he or

she is guilty of the contempt, a fine may be imposed on him or her not exceeding

one thousand dollars ($1000), payable to the court, or he or she may be imprisoned

not exceeding five days, or both. . . . .”

California Code of Civil Procedure, section 1219, subdivisions (a) and

(b): “(a) Except as provided in subdivisions (b) and (c), if the contempt consists

of the omission to perform an act which is yet in the power of the person to

perform, he or he may be imprisoned until he or she has performed it, and in that

case the act shall be specified in the warrant of commitment. [¶] (b)

Notwithstanding any other law, a court shall not imprison or otherwise confine or

place in custody the victim of a sexual assault or domestic violence crime for

contempt if the contempt consists of refusing to testify concerning that sexual

assault or domestic violence crime . . . .”

STATEMENT OF THE CASE

After petitioner’s first jury trial on sexual assault charges against multiple

victims ended in mistrial, petitioner’s second jury trial proceeded, again on sexual

assault charges against multiple victims. The second trial also ended in mistrial in

regard to Jane Does 1 and 2, but petitioner was convicted in regard to Jane Doe 3

of one count of rape (Cal. Pen. Code, § 261(a)(2)), one count of forcible oral

copulation (Cal. Pen. Code, § 288a(c)(2)(A)), and one count of forcible sodomy

(Cal. Pen. Code, § 286(c)(2)(A).) (7RT 1527-1530; 3CT 819-821.) Petitioner was

sentenced to an aggregate term of 22 years in prison. (4CT 916.) The judgment

was appealed to the California Court of Appeal, First Appellate District, Division

Three, which, on August 4, 2020, affirmed the judgment in full. (See Appendix

A.) The court denied a petition for rehearing on September 3 (Appendix B), and

the California Supreme Court denied discretionary review on October 14, 2020.

(Appendix C.)

The issues presented in this petition were presented to the California Court

of Appeal, and presented again to the California Supreme Court for its

discretionary review. These are: (A) Whether the Sixth Amendment allows the

use of testimonial hearsay in a criminal trial when the witness is deemed

“unavailable” because she refuses, without any privilege to do so, to testify about

the charged crimes; and (B) Whether it is consistent with the Sixth Amendment

and with Due Process to legislatively preclude a court from imposing any

incarceratory sanction to coerce a witness who refuses, without privilege, to testify

in a criminal case.

SUMMARY OF FACTS

AND PROCEDURAL BACKGROUND

A very general factual background is set forth in the attached court of appeal

decision in Appendix A (slip op., pp. 1-2), but the operative facts for the issues

presented here are procedural. Although the state court gives an account of this

procedure, a complementary account with more detail will provide a clearer

context for the legal contentions made in this petition.

Doe 3 had testified at the preliminary hearing in December 2016 and at the

first trial in March 2017. The jury hung 11-1 on the charges involving her, and the

People made the decision to retry the case. A date for the second trial was set for

January 2, 2018. Although in October 2017, Doe 3 had informed the prosecution

she would not testify at a second trial, she was nonetheless served with a subpoena

on December 14. At that time, she was advised by a sympathetic District Attorney

Investigator to write the judge a letter explaining the trauma Doe 3 wished to avoid

by not testifying. (2CT 567, 572; see also 6RT 1272-1277.)

The subpoena was for January 4, 2018, and Doe 3 did not appear that day.

(2RT 40.) The day before, on January 3, the defense filed a request for an

evidentiary hearing on Doe’s refusal to testify, while the prosecution filed a motion

to have her declared unavailable as a witness. (2CT 560-561, 566 et seq.) The

prosecution’s legal claim of unavailability was based on subdivision (a)(4) of

Evidence Code section 240, that the declarant, Doe 3, would be “[a]bsent from the

hearing and the court” would be “unable to compel his or her attendance by its

process.” (2CT 568; see above, p. 2.) The prosecution also took the position that

Code of Civil Procedure section 1219, which granted to sexual assault victims

immunity from incarceration as a sanction for contempt of court in refusing to

testify, precluded the threat of incarceration as a sanction for Doe 3’s refusal to

come to court for a hearing on her unavailability vel non. (2CT 568, 569-570; see

above, pp. 3-4.)

The issue was discussed in limine in court on January 8. There was back

and forth discussion regarding whether Doe 3 should be issued an order to show

cause for disobeying the subpoena, or whether she should be subpoenaed again to

appear for an in limine hearing on whether or not she was available to testify. The

defense preferred the stronger measure of an order to show cause. She had already

disobeyed a subpoena, and the efficacy of a second subpoena was doubtful,

“especially when your investigator says, ‘Well that’s great. We respect your

decision to disobey the law.’ That’s not proper. That’s not right.” (2RT 46.) The

Court conceded the point, and stated, “Next time the inspector serves her, he

doesn’t have to say he respects it.” (Ibid.) In any event, the Court agreed to sign

an order to show cause to be served by the prosecution. The matter would then be

heard on January 11. The Court intended to appoint an attorney for Doe 3, and

was inclined to allow her to address the show-cause matter through her attorney

only. (2RT 57-62.)

On January 11, Doe 3 did appear with her attorney Matthew Dalton. (2RT

110-111.) Dalton represented to the court that he had talked to his client and had

himself reviewed some materials related to the case. “I think Ms. Doe the Third

has,” he said, “extremely strong feelings about not participating in this trial for a

whole host of reasons. I don’t believe based on my conversations with her and my

review of the records, that there’s going to be any change any time for any reason

where she will testify in this case for the prosecution or on behalf of the defense.”

Dalton was willing to elucidate Doe 3’s reasons, but it was a waste of time, in his

opinion, to order her back to testify. (2RT 112.) The trial court expressed

sympathy for Doe 3, but had to follow the law. “ . . I believe I have no choice,”

stated the court, “but to issue an order that she appear to testify and to state that if

she does not do so, the Court would have no alternative but to fine her in indirect

or constructive contempt for which she can be fined up to $1,000.” (2RT 112-113;

see above, p. 3.)

Ms. Chavez, the prosecutor, who represented the People and not Doe 3,

objected to the threat of a fine. She had cited case law to the effect that trial courts

do not have to take extreme action before declaring unavailability -- at which

point defense counsel, Mr. Morris, interrupted to object. The Court itself noted

that this argument was improper to make in front of Doe 3, who was still in the

courtroom. (2RT 112-113.)

With Doe 3’s exit from the courtroom, Ms. Chavez argued that she did not

want to be “saddled” with a witness held in contempt, and further urged that

holding her in contempt would be inconsistent with current law. Mr. Morris

pointed out that section 240 in fact requires the witness to be held in contempt

before a declaration of unavailability was possible. (2RT 113-114; above, p. 2.)

Mr. Morris also objected on hearsay grounds that any attempt to obtain through her

attorney alone Doe 3’s reasons for not testifying was hearsay and improper. The

Court insisted on its power to fine Doe 3 up to a $1000. However, the Court

wanted to continue the matter to give Doe 3 an opportunity to change her mind.

The Court discharged the order to show cause, but still ordered Doe 3 to return on

January 24. (2RT 114-115, 119.)

On January 24, Doe 3 returned to court. Dalton reaffirmed her refusal to

testify, but she did take the stand and answered the court’s questions under oath:

“THE COURT: . . . Ms. Doe, as I understand it, you have

testified twice in this matter: Once at the preliminary hearing and

once at a trial; is that correct?

“MS. DOE 3: Yes.

“THE COURT: Are you prepared to testify a third time?

“MS. DOE 3: No.

“THE COURT: If I ordered you to testify, would you testify?

“MS. DOE 3: With all due respect, no, sir.

“THE COURT: Do you understand that there will be a

different jury than there was the last time that there was a trial in this

matter?

“MS. DOE 3: Yes.

“THE COURT: Do you understand that the defense has a right

to have that jury observe you face-to-face in order to judge your

credibility in this case?

“Do you understand the question?

“MS. DOE 3: Yes. And I again, I don’t want to partake in this

hearing.

“THE COURT: Why don’t you want to partake?

“MS. DOE 3: I just don’t want to. I don’t want to re-live the

situation.

“THE COURT: How has the situation affected you?

“MS. DOE 3: In numerous ways.

“THE COURT: Would you be more specific.

“MS. DOE 3: I don’t really want to speak about that.

“MR. MORRIS: I’m sorry. I can’t hear her.

“THE COURT: Would you – Ms. Reporter, would you read

that answer back?

“MS. DOE 3: I said I wouldn’t want to speak about that. I

don’t want to bring it up.

“THE COURT: Do you understand that it is within my

discretion to find you in contempt of court for not testifying, and as a

result, to fine you a maximum of $1000?

“MS. DOE 3: Yes.

“THE COURT: Knowing that, is it still your decision not to

testify?

“MS. DOE: Yes it is.” (2RT 151-153.)

After Ms. Doe left the courtroom, the prosecution argued that Doe 3 was

unavailable under subdivision (a)(4) of section 240 in that she was unamenable to

the court’s process, and unavailable under (a)(5) , i.e., the prosecution had

“exercised reasonable diligence but [had] been unable to procure [her] attendance

by the court’s process.” (Cal. Evid. Code, § 240(a)(5).) (2RT 154; above, p. 2.)

Mr. Morris urged, to the contrary, that it was shocking how the prosecution has

been in fact encouraging Doe 3 not to testify. The Court, however, was of the view

that even if the prosecution had “dropped the ball,” the Court’s own actions made

up for it. (2RT 155-156.) When defense counsel pointed out that under (a)(6),

Doe 3 had to actually be held in contempt before she could be found unavailable

for persistent refusal to testify (above, p. 2), the Court’s peremptory response to

this was: “There is no such provision. There is a provision [‘] is absent from the

hearing and the proponent of his or her statement has been unable to procure his or

her attendance from the Court’s process.[’]” (2RT 157.)1

The Court went on to rule. Initially, Doe 3 would not be found in contempt

of court. “The witness has been respectful; has made all appearances that the

Court has requested; has been respectful on the stand, and I do not feel I have a

basis to find her in contempt of court, so I will not find her in contempt. (2RT

164.) As to unavailability, the Court found People v. Cogswell, 48 Cal.4th 467

(2010) and People v. Smith, 30 Cal.4th 581 (2003) to be dispositive, giving the

Court the authority to declare a witness unavailable without first finding the

Subdivision (a)(6) regarding persistent refusal to testify was in fact a 2010

amendment to Evidence Code section 240 (Cal. Stats. 2010, ch. 537, §1), with

which the trial court was, apparently, not familiar. Indeed, there have been no

post-2010 cases construing California Evidence Code section 240(a)(6). The

relative youth of the amendment may account for the trial court’s ignorance.

Further, as will be seen, the jurisprudence surrounding section 240 generally is

somewhat cavalier about the need for the actual text of the statute. (See below pp.

14 et seq.)

witness in contempt or fining the witness. (2RT 164-167.) When asked for a

specification of the section 240 category the Court was invoking, the Court stated

it was subdivision (a)(4), “absent from the hearing and the Court is unable to

compel his or her attendance by this process.” (2RT 167.) The Court, addressing

Mr. Dalton, extended the invitation to Doe 3 to change her mind at any time about

testifying. (2RT 167-168.) After Doe 3 was released, Mr. Morris placed a formal

objection on the record: “ . . . . Simply put, I believe that when the Court declined

to hold the witness in contempt for refusing to testify, that that was a violation of

my client’s right under the due process clause, and under the Sixth Amendment

guarantee of a speedy trial and confrontation of witnesses.” (2RT 169.)2

Six days later, after the commencement of trial, on January 30, 2018, Jane

Doe 3’s prior testimony from the preliminary hearing and from the first trial was

read to the jurors. (3RT 428 et seq.)

2 The “speedy trial” objection was based on the defense position that preaccusation delay in bringing the Doe 3 prosecution was the cause of Doe 3’s

refusal to testify.

REASONS FOR GRANTING CERTIORARI

CERTIORARI SHOULD BE GRANTED TO

DETERMINE WHETHER THE HISTORICAL

APPROACH TO THE SIXTH AMENDMENT AS

MANFEST IN CRAWFORD AND GILES APPLIES

ALSO TO THE DETERMINATION OF TYPES OF

UNAVAILABIITY SUFFICIENT, UNDER THE

SIXTH AMENDMENT, TO ALLOW THE USE OF

A DECLARANT’S TESTIMONIAL HEARSAY

Petitioner’s federal constitutional claim, as it was advanced in state court, is

simply stated. It has been established by this Court that in determining the various

aspects of the Sixth Amendment right of confrontation, the scope of that right is

based historically, on the understanding of the evidentiary practices prevalent at

common law at the time the Amendment was adopted in 1791. (See Crawford v.

Washington, 541 U.S. 36, 54, 68 (2004); see also Giles v. California, 554 U.S.

353, 366, 377 (2008).) The federal question presented by this case is whether the

same historical approach applies to types of unavailability sufficient to predicate

the use of testimonial hearsay or whether there is some other measure, such as the

state’s own definition of unavailability, or something in-between criterion that is

not purely historical but not completely left to the freedom of legislatures or

common law cases. Under the historical approach, whatever the full list of types

of unavailabiity might be, the type at issue here – an unprivileged refusal by a

physically present witness, to testify – is not a type of “unavailability” recognized

at common law. (See West v. Louisiana, 194 U.S. 258, 262 (1904) [The common

law right to admit a declarant’s deposition as evidence at trial depended on proof

that the declarant, at the time of trial was “dead, insane, too ill ever to be expected

to attend trial, or kept away by the connivance of the defendant.”].)

But logically and legally prior to the federal claim, petitioner advanced a

claim based on state statutory grounds. Although California’s interpretation of its

own Evidence Code section 240 is not subject to this Court’s review, a brief

summary of the interpretive history of section 240 will provide some contextual

background to the federal claim, and, indeed, will take on some importance under

the view that the states control the definition of “unavailability” in a Sixth

Amendment context.

The Interpretative Background of Evidence Code section 240

Although California Evidence Code section 240 has, on the face of its

language, the appearance of an exclusive definitional list, the California Supreme

Court has departed from the language itself, treating the statute as suggestive rather

than definitional, subject to a flexibility injected by judicially expansive

interpretation. This began with People v. Rojas, 15 Cal.3rd 540 (1975), in which

the California Supreme Court upheld the use of testimonial hearsay when a witness

refused to testify out of fear of reprisal, which the trial court found, under section

240(a)(3) to be a “mental . . . infirmity.” The Supreme Court found lexical support

for this surprising understanding of “mental infirmity” in Webster’s, which defined

the word “infirmity” to mean, inter alia, “ ‘a defect in personality or weakness of

will.” (Rojas, id. at pp. 550-551.) One supposes that a frightened witness might be

seen as having the defective personality or weak will of a coward or of a person

beset by some other form of timidity, but the motivating engine of the decision in

Rojas was not dictionary definitions. It was the substantive need of judicial

administration in the face of a contemptuous witness who, without privilege,

refuses to testify, which does not slip easily into any of the listed categories of

“unavailability” in section 240. (See id. at p. 551.)

This motive, unmoored as it was from the reasonable understanding of

otherwise plain language, has been rationalized on its most general level by the

proposition that “Evidence Code sections 240 and 1291” are to be interpreted

broadly so as not “to preclude unlisted variants of unavailability.” (People v.

Reed, 13 Cal.4th 217, 226-227 (1995), emphasis added.) On a slightly less general

level, case law subsequent to Rojas, eschewing verbal niceties of that case such as

those applied to “mental infirmity,” has simply held that the amalgamated thrust of

section 240’s list of forms of unavailability implies further a cognizable type based

on a witness’s unprivileged refusal to testify even after the court has taken

reasonable measures to induce testimony. (People v. Sul, 122 Cal.App.3rd 355,

362-365 (1981); People v. Francis, 200 Cal.App.3rd 579, 581-582 (1988); People

v. Smith, 30 Cal.4th 581, 624 (2003).)3

The state Court of Appeal in the instant case simply followed the

Sul/Francis/Smith rationale, rejecting petitioner’s further argument that the 2010

amendment to section 240 showed a legislative intent to re-assert the definitional

nature of the statute. For in 2010, the Legislature added to the list of types of

unavailability, “[p]ersistent in refusing to testify concerning the subject matter of

the declarant’s statement despite having been found in contempt for refusal to

testify.” This is spelled out in such specificity as to defy any notion that the list in

section 240 can be expanded at judicial will. Thus, in this case, the trial court

expressly declined to hold Doe 3 in contempt, and yet, according to the Court of

Appeal, this was irrelevant under the expansive view of section 240 that the Court

need only take reasonable measures. The Court not only rejected petitioner’s

inference of legislative intent as without evidentiary support, but found succor in

cases recognizing that “reasonable measures,” did not include contempt sanctions

In Sul, the Court could not resort to Rojas’s interpretation of “mental infirmity”

because the witness in Sul gave no reason for his refusal to testify. (Sul, id., at p.

363.) Moreover, the substantive principle enunciated in Sul was simply borrowed

from United States v. Mason, 408 F.2nd 903 (10th Cir. 1969) and loosely tied to

section 240. (Sul, id at pp. 364-365; Francis, id., 581-582.) In Smith, the

California Supreme Court depended on Sul, Francis, and Mason. (People v. Smith,

supra, 30 Cal.4th at p. 624.)

against a witness, especially a sexual assault witness, who, under California Code

of Civil Procedure, section 1219(a) had immunity against any sanction involving

incarceration. (Slip op., pp. 7-10; see also People v. Smith, supra, 30 Cal.4th at p.

624; and People v. Cogswell, 48 Cal.4th 467, 476 et seq.( (2010).) In sum, by the

expansive reading of section 240, Jane Doe 3’s unavailability was within (a)(6), in

a persistent refusal to testify, or (a)(4) as “[a]bsent from the hearing and the court

is unable to compel his or her attendance by its process,” or (a)(5) as “[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.” (See App. A, slip op., pp. 5-7.)

The Sixth Amendment Claim

Petitioner’s federal constitutional claim was disposed of by the Court of

Appeal in a single sentence: “The admission of Jane Doe 3’s prior testimony did

not violate Lawson’s statutory or constitutional rights.” (Slip op., p. 10, App. B.)

This compact sentence is all there is regarding a rather detailed constitutional

argument, and the omission of any reference to this argument was pointed out to

the court in a petition for rehearing, which was denied. But before detailing that

argument, one might draw out from the state court’s single sentence the rationale

for the broad constitutional claim pronouncement made so laconically. It seems

that state court believed it sufficient that Doe 3 was in a sense absent from the

hearing because she refused to testify about the alleged assault; the state court also

seemed to beliefe that this refusal somehow incapacitated court process (section

240(a)(4)), and somehow undermined the prosecution’s due diligence (section

240(a)(5)), categories of unavailability that, perhaps, were federally sanctioned

forms of unavailability. For this the State Court of Appeal could have, but did not,

cite Barber v. Page, 390 U.S. 729 (1968) to give its ruling the color of dispositive

United States Supreme Court precedent. In short, the Court’s succinct

pronouncement, taken in itself is vague and impressionistic, and, in petitioner’s

view, wrong in light of the argument he presented to the state court and with which

he engaged a responsive Attorney General in those courts.

In its broadest formulation, the right guaranteed by the Confrontation Clause

of the Sixth Amendment provides for “a personal examination and crossexamination . . . in which the accused 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 the manner in which he gives his testimony whether he is

worthy of belief.” (Mattox v. United States, 156 U.S. 237, 242 (1895).) Of the

various aspects of this unified description of the Sixth Amendment right, the

physical presence of the witness before the jury and the accused at trial takes

precedence over the substance of the testimony whether on direct or cross-

examination, for it is a fundamental proposition of Sixth Amendment jurisprudence

that physical presence is the irreducible core of the right (see Coy v. Iowa, 487

U.S. 1012, 1016-1017 (1988); see also California v. Green, 399 U.S. 149, 160-161

(maj.), and p. 174 (Harlan, J. conc.) (1970)), while the guarantee in regard to crossexamination is only for “an opportunity for effective cross-examination . . . .”

(United States v. Owens, 484 U.S. 554, 559 ((1988), internal quotations marks

omitted, emphasis in Owens.)

One may pause at the expression of these principles to see how they relate

problematically to the state court’s implied ruling on the constitutional issue. As

one may see from the account of the procedure in this issue, Doe 3 was served by

the prosecution with a subpoena in December 2017 for the retrial (above, p. 5),

which in fact discharged any duty of due diligence on the part of the People.

Although Doe 3 failed (with the connivance of the prosecution) to respond to this

subpoena (pp. 5-6), she did respond to a court order to show cause, and physically

appeared before the court on January 11. (Above, pp. 7-8) She was ordered back

for January 24, when she in fact took the stand physically and gave testimony

under oath affirming that she did not want to testify and would not testify about the

alleged sexual assault. (Above, pp. 9-10.) That day, the first day of trial, the Court

discharged her, excusing her from testifying and imposing no sanction. (Above,

pp. 11-12.)

In the literal sense, Doe 3 was not physically absent from the proceedings at

all. In the legal sense, she had no privilege not to testify. Further, in the

constitutional sense, the State was not at the mercy of her subjective refusal to

testify, because while she was on the stand, and physically present to respond or

refuse to respond in the presence of the jurors, her hearsay statements, in whatever

form they took, were admissible without restriction. (Crawford, supra, 541 U.S.

36, 59, fn. 9 [“Finally, we reiterate that, when the declarant appears for crossexamination at trial, the Confrontation Clause places no constraints at all on the

use of his prior testimonial statements.”].)4

The question then becomes whether, in the circumstances presented here –

the unprivileged refusal of a physically present witness to answer questions ---, the

Sixth Amendment allows the use of hearsay by the rule of necessity that allows the

use of hearsay for a witness who is “unavailable.” As noted at the beginning of

this argument, petitioner’s answer is that the matter is to be determined

historically, and that, historically, there is no precedent for this type of

unavailability as a predicate for the use of hearsay in a criminal trial.

It may be noted that a blanket refusal to testify cannot, as a matter of current

California law, provide the basis for introduction of prior testimony as a prior

inconsistent statement. (People v. Rojas, supra, 15 Cal.3rd at p. 548.) The point

here, however, is that there is no constitutional impediment to a hearsay rule that

allows the use of prior testimony when a physically present witness refuses to

answer questions. (Crawford, ibid.)

In referring to the use of hearsay when a witness is physically absent,

petitioner has not been rigorous in differentiating the type of hearsay at issue. In

Crawford v. Washington, supra, 541 U.S. 36 this Court delimited the scope of the

Sixth Amendment to remove from its purview all hearsay except testimonial

hearsay. (Id., at pp. 50-52.) This was derived from the premise that the

Confrontation Clause was aimed at “the civil law mode of criminal procedure, and

particularly its use of ex parte examinations against the accused,” and “[t]he Sixth

Amendment must be interpreted with this focus in mind.” (id., at p. 50.) Beyond

this:

“The historical record also supports a second proposition: that

the Framers would not have allowed admission of testimonial

statements of a witness who did not appear at trial unless he was

unavailable to testify, and the defendant had had a prior opportunity

for cross-examination. The text of the Sixth Amendment does not

suggest any open-ended exceptions from the confrontation

requirement to be developed by the courts. Rather, the ‘right . . . to

be confronted with the witnesses against him,’ Amdt. 6, is most

naturally read as a reference to the right of confrontation at common

law, admitting only those exceptions established at the time of the

founding. [Citation.] As the English authorities above reveal, the

common law in 1791 conditioned admissibility of an absent witness's

examination on unavailability and a prior opportunity to crossexamine. The Sixth Amendment therefore incorporates those

limitations. The numerous early state decisions applying the same test

confirm that these principles were received as part of the common law

in this country.” (Crawford v. Washington, supra, 541 U.S. at pp. 5354.)

Toward the end of the opinion, the Court summed this up in a more concentrated

form: “Where testimonial evidence is at issue . . . the Sixth Amendment demands

what the common law required: unavailability and a prior opportunity for crossexamination.” (Id. at p. 68.)

Thus in Crawford, this Court’s analysis took the historical approach not only

to establish dispositively that the Sixth Amendment applied only to testimonial

hearsay, but also to establish the internal requirements for such hearsay: first, that

it arose in a proceeding in which the declarant was subject to the opportunity for

cross-examination; and secondly, that the declarant is unavailable to testify at the

current trial or proceeding. While the approach in Crawford sanctions the general

outline of the constitutional law governing the constitutional use of hearsay in a

criminal trial, does this approach also apply to more specific questions such as

what type of unavailability may predicate a constitutional use of testimonial

hearsay?

An all but express answer seems to have been given by this Court in Giles v.

California, supra, 554 U.S. 353. Giles came to this Court from the California

Supreme Court’s decision in People v. Giles, 40 Cal.4th 833 (2007). In Crawford,

this Court made passing reference to forfeiture by wrong-doing, -- viz., forfeiture

of the right to confront an adverse witness when some wrong doing by the

defendant was responsible for the witness’s absence from trial – as an “equitable

principle” that did not violate the Sixth Amendment. (Crawford, supra, 541 U.S.

at p. 62; see also Davis v. Washington, 547 U.S. 813, 833 (2006).) In the

California Supreme Court’s Giles, the Court emphasized this characterization of

forfeiture by wrongdoing as an “equitable principle” outside the realm of the rules

of hearsay (id. at pp. 841-842), which freed the Court, in its view, from the

confinement of the historical inquiry to the common law extant in 1791. Thus

freed from historical strictures, the California Supreme Court in Giles engaged in a

wide-ranging examination of the evolving and continual common-law debate, both

pre- and post-Crawford over the equitable scope of the forfeiture by wrong doing

doctrine. (Id. at pp. 842-859.) Based on this examination, and its own contribution

to the debate over equities, the Court found that the doctrine of forfeiture by

wrongdoing applied even when the wrong doing was not committed with the intent

to suppress the witness’s testimony, even if the wrong doing itself was the crime

for which the defendant was on trial. (Id. at p. 833.)

In Giles v. California, supra, 554 U.S. 353, this Court rejected this. A

forfeiture by wrong doing sufficient to avoid the Sixth Amendment prohibition of

unconfronted testimonial statements required that the wrongdoing be done with the

intent to suppress the witness’s live testimony, and that the wrongdoing be

independent of the crime for which the defendant is on trial. (Id., at pp. 361-365.)

The Court made it clear that this was not a question of an evolving equitable

doctrine, but a question of the scope of an equitable doctrine consistent with the

understanding of the law at or around the time the Sixth Amendment was adopted.

The Court made this clear from the outset in a broad-based declaration of the

analytical framework for the question:

The Sixth Amendment provides that ‘[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him.’ The Amendment contemplates that a

witness who makes testimonial statements admitted against a

defendant will ordinarily be present at trial for cross-examination, and

that if the witness is unavailable, his prior testimony will be

introduced only if the defendant had a prior opportunity to crossexamine him. Crawford, 541 U.S., at 68 . . . . The State does not

dispute here, and we accept without deciding, that Avie's statements

accusing Giles of assault were testimonial. But it maintains (as did

the California Supreme Court) that the Sixth Amendment did not

prohibit prosecutors from introducing the statements because an

exception to the confrontation guarantee permits the use of a witness's

unconfronted testimony if a judge finds, as the judge did in this case,

that the defendant committed a wrongful act that rendered the witness

unavailable to testify at trial. We held in Crawford the Confrontation

Clause is ‘most naturally read as a reference to the right of

confrontation at common law, admitting only those exceptions

established at the time of the founding.’ Id., at 54 . . . . We therefore

ask whether the theory of forfeiture by wrongdoing accepted by the

California Supreme Court is a founding-era exception to the

confrontation right.” (Giles, supra, at pp. 357-358, emphasis added.)

After an examination of the authorities that suggested the limits on the

forfeiture doctrine at the time of the founding, the Court found that the doctrine of

forfeiture by wrongdoing was not understood or applied at that time in the broad

and expansive manner urged by the State, and that “the State’s proposed exception

to the right of confrontation plainly was not an ‘exception established at the time of

the founding.’” (Id., at p. 366.) In vacating the judgment of the California

Supreme Court, this Court stated: “We decline to approve an exception to the

Confrontation Clause unheard of at the time of the founding or for 200 years

thereafter.” (Id., at p. 377.)

It is difficult to see how, if an historical analysis is required to determine the

scope of a type of unavailability recognized as extant in 1791, such an historical

analysis is not required to determine also which other types of unavailability were

extant in 1791 and are thus cognizable under the Sixth Amendment as a predicate

for the use of testimonial hearsay. What then does an historical analysis reveal as

to a contemptuous refusal to testify?

Without plunging into a scholarly and far-reaching research project, the

answer seems fairly simple. Petitioner has referenced and quoted West v.

Louisiana, supra, 194 U.S. 258, and the full version of that pronouncement states:

“At common law, the right existed to read a deposition upon the trial of the

defendant, if such deposition had been taken when the defendant was present and

when the defendant's counsel had had an opportunity to cross-examine, upon proof

being made to the satisfaction of the court that the witness was at the time of the

trial dead, insane, too ill ever to be expected to attend the trial, or kept away by the

connivance of the defendant.” (Id. at p. 262.) It will be noted that the list here

consists of narrow and strict categories of physical absence from the proceeding.

The list does not include a witness’s refusal to testify. It is also possible that

absence from the jurisdiction of the court was also a cognizable common law

category of unavailability (See Barber v. Page, supra, 390 U.S. 719, 722; see also

Government of Virgin Islands v. Aquino, 378 F.2nd 540, 549-550 (3rd Cir. 1967)),

but the refusal of a physically present witness to testify is not part of any traditional

list, and was found to be a matter of first impression by the California Supreme

Court in 1975 (People v. Rojas, supra, 15 Cal.3rd 540, 559-560), just short of 200

years after the adoption of the Sixth Amendment. One need not come up with a

general theory from historical practice (see California v. Green, supra, 399 U.S.

149, 162 [“We have no occasion to map out a theory of the Confrontation Clause”

to decide the issue in this case]) , or even establish the historical pedigree of each

and every type of unavailability in order to conclude that an unprivileged refusal to

testify is not, and was not, a form of legal unavailability recognized at common

law in 1791. But if certiorari is granted, the matter can be examined in even

greater detail.

Further, any perceived problems with petitioner’s contention can also be

aired and settled by this Court as the appropriate tribunal to settle important issues

of Sixth Amendment jurisprudence. Thus, in the state court proceedings, the

Attorney General attacked the thesis that the core of the Sixth Amendment right is

physical availability since privilege and insanity were types of cognizable

unavailability in which there was still physical presence. Petitioner’s answer was

that privilege is the legal predicate that excuses the witness’s physical presence,

while insanity, which impedes the witness’s inherent capacity to answer questions,

destroys the opportunity for cross-examination even when the witness’s body is

capable of sitting on the stand. Moreover, even if there is some inconsistency

shown in these instances, these instances may themselves be justified (or not)

historically as following the rule of necessity. These matters can be elaborated in

adversarial argument, again to be adjudicated in this, the appropriate tribunal.

These matters also provide a further impetus for a grant of certiorari to settle them.

Finally, there is the problem of Maryland v. Craig, 497 U.S 836 (1990).

Two years before Craig, in Coy v. Iowa (1988) 487 U.S. 1012, this Court declared

that the use of a screen placed between the complaining witnesses, who were sixyear-old girls, and the defendant violated the Confrontation Clause of the Sixth

Amendment. The screen allowed defendant to dimly perceive the witnesses as

they testified, but it completely blocked the witnesses’ view of defendant. (Id., at

pp. 1014-1015.) This interference with the right to physical confrontation was not

redeemed by the fact that the witnesses were under oath; were cross-examined;

and, as one learns from consulting the state court decision, were open to the judge

and the jury’s, if not the defendant’s, view while they testified. (See State v. Coy

397 N.W.2nd 730, 734 (Ia.1986).) This Court’s reversal of the Iowa statute in Coy

was certainly in line with the treatment of physical presence as the ineluctable core

of the Sixth Amendment right of Confrontation. In Craig, without overruling Coy,

this Court upheld the procedure of using closed-circuit television to allow the

examination and cross-examination of a witness from a room separate from the

courtroom where the defendant and jury remained. (Craig, supra, 497 U.S., at pp.

840-842.) This court upheld the procedure on the condition that its use was to be

predicated on a case-specific showing of need, a dispensation allowable under the

Sixth Amendment because the procedure otherwise preserved all other incidents of

the right of confrontation: the child must be competent to testify; must testify

under oath; is subject to contemporaneous cross-examination; and can be seen

(albeit through video monitor) by the jury and by the defendant. (Id. at p. 851.)

This is the one case from this Court in which the Court unambiguously

discounts the importance of physical presence, but there are serious questions as to

whether or not Craig in its liberality toward physical presence can be reconciled

with Crawford, with its strictness in this regard. (See United States v. Cox, 871

F.3rd 479, 492-495, Sutton, J. conc. (6th Cir. 2017); see also Coronado v. State 351

S.W.3rd 315, 321, (Tex.Crim.App. 2011); see also Maryland v. Craig, supra, 497

U.S., at pp. supra, at pp. 860 to 870, Scalia, J., dissenting.) Whether or not Craig

is withering on the vine, or whether or not perhaps it may stand to represent a

separate line of Sixth Amendment jurisprudence governing courtroom

arrangements, while Crawford rules over the use of testimony hearsay (see United

States v. Yates, 438 F.3rd 1307, 1330, fn. 14, Tjoflat, J., dissenting (11th Cir. 2006))

would be, again, another major question for this Court to resolve.

The instant case presents important questions of Sixth Amendment

jurisprudence that remain to be adjudicated by the one Court that can dispositively

adjudicate them.

CERTIORARI SHOULD BE GRANTED TO

DETERMINE WHETHER THE IMMUNITY

CALIFORNIA CONFERS ON THE

COMPLAINING WITNESS IN A CRIMINAL

SEXUAL ASSAULT CASE WHO COMMITS

CONTEMPT OF COURT IN REFUSNG TO

ANSWER QUESTIONS, IS IN VIOLATION OF

THE SIXTH AND FOURTEENTH AMENDMENTS

IN LEAVING THE TRIAL COURT WITH ONLY

SUB-MINIMAL POWER TO INDUCE

COMPLIANCE WITH CONSTITUTIONAL

MANDATES OF CONFRONTATION AND DUE

PROCESS

California’s regimen of sanctions for contempt of court is set forth in its

Code of Civil Procedure section 1218 and 1219, which are quoted above. (See pp.

3-4 above.) Under Code of Civil Procedure 1218(a), contempt can be punished by

a fine of no more than one-thousand dollars ($1000). When the contempt consists

of the refusal of a witness to answer questions, each question refused is not

sanctionable by the $1000 fine, but the gross refusal is considered one sanctionable

violation. (In re Keller, 49 Cal.App.3d 663, 669 (1975).) Although, under

1218(a), the length of incarceration for contempt cannot exceed five days, under

1219(a), “if the contempt consists of the omission to perform an act which is yet in

the power of the person to perform, he or she may be imprisoned until he or she

has performed it . . . .” But under subdivision (b), “[n]otwithstanding any other

law, a court shall not imprison or otherwise confine or place in custody the victim

of a sexual assault or domestic violence crime for contempt if the contempt

consists of refusing to testify concerning that sexual assault or domestic violence

crime . . . .”

The power to punish for contempt is an inherently judicial power that

traditionally consists of incarceration or fine or a combination of both. (John Roe,

Inc. v. United States, 142 F.3rd 1416, 1424 (11th Cir. 1998).) The question

presented in state court and renewed here is whether the complete preclusion of an

incarceratory sanction for an unprivileged refusal to answer questions is consistent

with the Sixth Amendment right to confront adverse witnesses in a criminal trial

and to the right under the Fourteenth Amendment to due process of law.

The connection between a fundamental constitutional right and a court’s

ability to enforce that right was stated succinctly by this Court in Glasser v. United

States, 315 U.S 60 (1942), “[u]pon the trial judge rests the duty of seeing that the

trial is conducted with solicitude for the essential rights of the accused.’” (Id. at p.

71.) In People v. McKenzie, 34 Cal.3rd 616, 626 (1983), the California Supreme

Court elaborated further:

“In order to implement this duty, the trial judge is vested with

both the statutory and the inherent power to exercise reasonable

control over all proceedings connected with the litigation before him.

[Citations.] The court has the authority ‘to take whatever steps [are]

necessary to see that no conduct on the part of any person [obstructs]

the administration of justice’ [citation] to ‘maintain the dignity and

authority of the court . . . and to summarily punish for acts committed

in the immediate view and presence of the court when they impede,

embarrass or obstruct it in the discharge of its duties . . . .’

[Citation.] It has further been noted that the trial judge ‘has the

responsibility for safeguarding both the rights of the accused and the

interest of the public in the administration of criminal justice. The

adversary nature of the proceedings does not relieve the trial judge of

the obligation of raising on his or her initiative, at all appropriate

times and in an appropriate manner, matters which may significantly

promote a just determination of the trial.’ [Citations.]” (Id. at pp.

626-627.)

In the instant case, Doe 3 had no right to refuse her testimony. (See People

v. Smith, supra, 30 Cal.4th at p. 624.) The question presented here, as a matter of

state and federal constitutional law, is whether the statutory immunity of section

1219(b) improperly impeded the court from exercising its duty to prevent an undue

encroachment of the essential right of the accused to confront adverse witnesses.

In this regard, it should be noted that a $1000 fine is relatively nugatory while the

absence of any power to incarcerate is deemed sufficiently drastic so as to

extinguish the court’s inherent power to punish contempt in an effective manner

that induces it to end. (See In re Michael G., 44 Cal.3rd 283, 295, fn. 10 (1988).) It

is the removal of the incarceratory sanction that renders renders the immunity

created in section 1219(b) unconstitutional under the Sixth and Fourteenth

Amendments.

In Brooks v Tennessee (1972) 406 U.S. 605, this Court invalidated a

Tennessee law that required the defendant, if he intended to testify, to be the first

witness in the defense case. The law was found to be an imposition on the

defendant’s right under the Fifth Amendment to testify or not, and an interference

with defense counsel’s ability to discharge his constitutional function under the

Sixth Amendment determining when and whether defendant should testify. (Id., at

pp. 605-613.) California Code of Civil Procedure 1219(b) may not directly

encroach on the Sixth Amendment right of confrontation since its operation must

flow through the trial judge. But section 1219(b) enfeebles the trial judge in the

discharge of his duty to enforce the Sixth Amendment right, and to that extent falls

within the rationale by which the Tennessee statute in Brooks was declared

unconstitutional.

It is true that in this case the trial court eschewed a finding of contempt, and

the record suggests that at least part of the reason for this restraint was Doe 3’s

declaration that she would refuse to testify even if the court imposed a $1000 fine.

(2RT 151-153.) Although the court might well have tested Doe 3’s resolve by

actually finding the contempt and sanctioning her the $1000, the court, in the

simple warning of potential sanction, was severely hampered by the absence of any

power of incarceration. The tack taken by the court and Doe’s response might

have been very different if it were not for Section 1219(b), under which Doe 3 had

absolute immunity from incarceration. This record, and the issue that arises out it

because of California’s statutory regimen for punishing contempt, presents a novel

area of constitutional law, specifically under the Sixth Amendment right of

confrontation, that should be explored by this Court under a grant of certiorari.

CONCLUSION

For either or for both of the above reasons presented in this petition, petition

for writ of certiorari should be granted.

Dated: January 4, 2021

Respectfully submitted,

/s/ Mark D. Greenberg

Attorney for Petitioner

Eljarod Lawson

APPENDIX A

DECISION OF THE CALIFORNIA COURT OF APPEAL,

FIRST APPELLATE DISTRICT, DIVISION 3, IN PEOPLE V. LAWSON

FILED ON AUGUST 4, 2020 (SLIP OPINION)

(CITATION: 52 Cal.App.5th 1121, 267 Cal.Rptr.3rd 183 (2020))

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

(Alameda County

Super. Ct. No. 619332)

ELJAROD LAWSON,

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

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

on appeal, we provide a general summary.

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.

DISCUSSION

I. No Error in Finding Jane Doe 3 Was Unavailable to Testify

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

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

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.

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.

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

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.)

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

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

[].)” (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

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.

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, 1011.) 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.)

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 crossexamination, 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.)

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.)

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.

_________________________

Siggins, P.J.

WE CONCUR:

_________________________

Petrou, J.

_________________________

Jackson, J.

People v. Lawson, A154481

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.

APPENDIX B

ORDER DENYING APPELLANT’S PETITION

FOR REHEARING IN THE CALIFORNIA COURT

OF APPEAL, SEPTEMBER 3, 2020

Court of Appeal, First Appellate District

Charles D. Johnson, Clerk/Executive Officer

Electronically FILED on 9/3/2020 by G. King, Deputy Clerk

APPENDIX C

ORDER OF THE CALIFORNIA SUPREME COURT

DENYING DISCRETIONARY REVIEW, OCTOBER 14, 2020

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.