People v. Foy
199 Cal. Rptr. 3d 208
Cal. Ct. App.2016Background
- Alfred Foy was tried (retrial after mistrial) for seven counts of second-degree robbery and one count of felon in possession of a firearm; jury convicted him and court found strike priors true; aggregate sentence 120 years to life.
- At a prior proceeding (June 14, 2012) co-victim Mengqiong Song testified at a videotaped conditional examination (she had moved to Connecticut); Foy cross‑examined then.
- For the 2013 retrial the prosecutor moved to admit Song’s videotaped conditional-exam testimony; Song said she could not attend trial due to work/school and would not travel voluntarily.
- The DA’s investigator contacted Song after locating her a week before trial but did not invoke the Uniform Act or otherwise attempt to compel her attendance from Connecticut.
- The trial court admitted Song’s videotaped conditional-exam testimony over Foy’s confrontation-clause objection; that testimony linked Foy to the robbery via identification of flash‑drive contents.
- The Court of Appeal reversed, holding the People failed to show constitutional (Sixth Amendment) unavailability because they did not make a good‑faith effort (e.g., use the Uniform Act) to procure Song’s live testimony; error was not harmless beyond a reasonable doubt.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admission of Song’s videotaped conditional-exam testimony without showing constitutional unavailability violated the Sixth Amendment | The People argued an out‑of‑state witness who was previously videotaped at a conditional exam is per se unavailable and no further due‑diligence showing was required | Foy argued the Confrontation Clause required the prosecution to make a good‑faith, reasonable effort (e.g., use the Uniform Act) to obtain Song’s live attendance before admitting her prior testimony | Reversed: the prosecution must show constitutional unavailability (good‑faith/due diligence); here they failed to attempt available compulsion procedures, so admission violated the Sixth Amendment |
| Whether the trial court abused discretion by declining an evidentiary hearing on alleged juror misconduct | People argued no abuse of discretion (not litigated in detail on appeal) | Foy argued juror misconduct warranted an evidentiary hearing | Not reached on merits — court reversed on confrontation grounds and did not decide this issue |
| Whether the aggregate sentence (120 years to life) is cruel or unusual punishment | People defended sentence under three‑strikes and enhancement statutes | Foy argued the sentence was cruel and unusual | Not reached on merits — court reversed on confrontation grounds and did not decide this issue |
Key Cases Cited
- Barber v. Page, 390 U.S. 719 (U.S. 1968) (prosecution must make good‑faith efforts to produce an absent witness before admitting prior testimony under the Sixth Amendment)
- People v. Sandoval, 87 Cal.App.4th 1425 (Cal. Ct. App. 2001) (out‑of‑country witness not per se unavailable when procedures exist to obtain testimony; prosecution must pursue reasonable alternatives)
- People v. Herrera, 49 Cal.4th 613 (Cal. 2010) (constitutional unavailability requires showing prosecution satisfied its good‑faith/due‑diligence obligation; federal and state standards harmonize)
- People v. Thompson, 61 Cal.App.4th 1269 (Cal. Ct. App. 1998) (discusses statutory admission of conditional‑exam testimony when witness is out of state — relied on by trial court but distinguished here on constitutional grounds)
- People v. Blackwood, 138 Cal.App.3d 939 (Cal. Ct. App. 1982) (prosecution’s failure to use Uniform Act to compel an out‑of‑state witness undermines showing of reasonable diligence)
- People v. Masters, 134 Cal.App.3d 509 (Cal. Ct. App. 1982) (similar: when witness location is known and interstate compulsion procedures exist, prosecution must invoke them to prove due diligence)