Lopez

David Lopez was convicted after a court trial of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), battery with serious bodily injury (Pen. Code, § 243, subd. (d)) and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)).

The sole contention on appeal is that the trial court erred in admitting the victim’s preliminary hearing testimony. (Evid. Code, § 1291.) Lopez argues that the victim was not unavailable as a witness because the prosecution failed to use reasonable diligence to procure her attendance. (Evid. Code, § 240, subd. (a)(5).) We affirm.

Facts-

David Lopez and Danielle M. had dated for five years. On February 1, 1997, Danielle was talking on the telephone in Lopez’s bedroom. Lopez entered the room and, without saying anything, hit her in the face with his fist. Danielle fell to the ground. Lopez hit her with the telephone headset, punched her in the eye and put her in a headlock. When Danielle tried to flee through the door, Lopez threw a metal chair, striking her. Then Lopez grabbed her neck and tried to choke her.

The beating stopped when Danielle bit Lopez on the finger. Lopez said he was sorry and took her to the…