Cadogan

A jury convicted defendant Robert Lee Cadogan of forcible rape (Pen. Code, § 261, subd. (a)(2)), forcible oral copulation (§ 288a, subd. (c)(2)), attempted sodomy by use of force (§§ 286, subd. (c)(2), 664), and first degree residential burglary (§ 459). The court sentenced defendant to 37 years to life in prison. Defendant contends in his appeal that the court erred by admitting at trial evidence obtained at a conditional examination of his late wife, because defendant’s competency was in question at the time of the conditional examination. Defendant also asserts the prosecution was unfairly allowed to attack his credibility with prior misdemeanor convictions.

We reject both arguments and affirm the judgment. Trial courts have discretion to allow conditional examinations of dying witnesses to go forward, notwithstanding the suspension of criminal proceedings mandated by section 1368, subdivision (c). The testimony taken at a conditional examination should be excluded from trial only if the defendant is subsequently found to have been incompetent at the time of the conditional examination. Moreover, the court properly allowed the impeachment of defendant based on conduct…