Rodriguez

A jury found defendant guilty of selling heroin in violation of Health & Safety Code section 11501. He appeals from the judgment of conviction and from an order denying his request for probation.

Prosecution evidence mainly consisted of reading testimony which had been given by Michael Homotoff at a preliminary hearing, the testimony of Peter J. Finnigan who was the arresting officer, and the testimony of James Elsaas, the prosecution’s investigator, who detailed his unsuccessful efforts to locate and produce Homotoff as a witness at the trial.

Appellant raises three points on his appeal.

I. Appellant’s Contention That The Prosecution Failed To Produce Substantial Evidence Of Due Diligence To Justify Reading The Absent

Witness’s Testimony.

There is no doubt that an accused has a constitutional right to confront witnesses against him. When the witness is unavailable, however, testimony of the witness given on an earlier occasion may be read into evidence under appropriate circumstances. The requirement and its exception here applicable are set forth in Penal Code section 686, subdivision 3, Evidence Code sections 1291, subdivision (a) (2) and 240 subdivision (a) (5)…