Sandoval

When a witness who testified at the preliminary hearing is unavailable to testify at trial, it is statutorily and constitutionally acceptable for the former testimony to be used at trial. (See Evid. Code, § 1291; Ohio v. Roberts (1980) 448 U.S. 56 [ 100 S.Ct. 2531 , 65 L.Ed.2d 597 ].) This case presents the question whether the prosecution, to establish the unavailability of a crucial witness who is a Mexican citizen currently residing in Mexico, must show it made a reasonable, good faith effort to obtain the attendance of the witness at trial. We conclude the defendants’ right of confrontation requires such a showing. Since no such showing was made here, we reverse the defendants’ convictions for murder and related crimes.

Background

The defendants, Hilario Larry Sandoval and Curley Carlisle, were charged with the murder of Joaquin Zavala and the attempted robbery of Joaquin Zavala, Elias Zavala, and Francisco Camacho-Trejo, along with other related crimes. They were tried by jury. Upon proof that Elias Zavala, an actual witness to the alleged crimes and brother of the shooting victim, was a Mexican citizen and was residing in Mexico at the time of trial, the trial…