Denson

In this case, we hold that a witness who is a foreign citizen outside of this country at the time of trial is “unavailable” for purposes of admitting his or her prior testimony. Thus, the prosecution’s unsuccessful efforts to obtain the witness’s presence are irrelevant to a determination of whether that prior testimony is admissible at trial.

Facts

Appellant Donald Lee Denson was convicted by a jury of rape by a foreign object (Pen. Code, § 289, subd. (a)), assault with intent to commit oral copulation (Pen. Code, § 220), and assault (Pen. Code, § 240).

The conviction rested primarily upon the videotaped preliminary hearing testimony of the 21-year-old female victim. The prosecution had requested that the testimony be videotaped because the victim was leaving for England shortly after the preliminary hearing. Appellant knew about these plans and objected to the videotaping on the grounds that he was entitled to confront and cross-examine the victim at trial. The magistrate allowed the testimony to be videotaped without ruling on its admissibility at trial.

The crime, which we need not detail here, occurred in Santa Monica on July 24, 1983. At the preliminary hearing,…