People v. Gomez

Filed 11/3/25


                       CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                               DIVISION ONE

                           STATE OF CALIFORNIA



 THE PEOPLE,                               D083403

        Plaintiff and Respondent,

        v.                                 (Super. Ct. No. SCD299373)

 RAYMUNDO GOMEZ,

        Defendant and Appellant.


       APPEAL from a judgment of the Superior Court of San Diego County,
Joan P. Weber, Judge. Reversed and remanded.
       Aurora Elizabeth Bewicke, under appointment by the Court of Appeal,
for Defendant and Appellant.
       Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Collette
C. Cavalier, Joy Utomi and James H. Flaherty III, Deputy Attorneys
General, for Plaintiff and Respondent.
      This case puts into tension two undeniably important rights: a parent’s
right to protect their child’s emotional wellbeing and a criminal defendant’s
constitutional right to confront the witnesses against him. Raymundo Gomez
was accused of committing multiple lewd acts against children he contacted
in a public swimming pool. One of the victims, an eight-year-old girl named
Katrina G., described the abuse in a forensic interview and a subsequent
preliminary hearing. When it came time for her to testify at trial, however,
her mother (Mother) objected to bringing her to court. In a hearing before the
trial court, Mother testified that she did not want to subject Katrina to the
proceedings any longer, as she believed the courtroom environment was not
appropriate for her child. The court ultimately found Katrina unavailable to
testify and allowed her prior statements to be presented to the jury instead.
      Convicted by jury of committing two lewd act offenses against Katrina,
and a third against another child, Gomez contends the trial court erred in
finding Katrina unavailable and admitting her prior statements, thereby
violating his constitutional rights to confrontation and due process. As we
explain, although a parent’s decision not to permit their child to testify might
in some instances support a finding of the child’s unavailability, the record in
this case falls short of demonstrating Mother was steadfast in her refusal to
bring Katrina to court. Accordingly, we disagree with the unavailability
determination here. Finding the error prejudicial as to all three lewd act
offenses under the applicable standard, we reverse the judgment as to those
counts and remand to the trial court for further proceedings.

            FACTUAL AND PROCEDURAL BACKGROUND

      One weekend in June 2023, 14-year-old Kane F. visited Campland on
The Bay (Campland), a waterfront campground with pools, hot tubs, parks,
and other recreational activities for families. Kane and his friend were

                                       2
taking turns swimming laps in the pool when he noticed Gomez, wearing
a tank top and “boxers underwear,” enter the pool. Kane told his friend,
“ ‘Man, this guy looks like a creep.’ ” When his friend swam to the other side
of the pool, Gomez approached Kane and asked his name and where he was
from. Thinking this was weird, Kane gave fake answers. Gomez then
followed Kane to another area of the pool. Gomez reached out to shake
Kane’s hand, saying it was nice to meet him. Not wanting to aggravate
Gomez, Kane obliged. Gomez then pulled Kane’s hand down and placed the
back of it against his genitals, outside of his boxers. Kane quickly pulled his
hand back and left the pool.
      Soon thereafter, Gomez approached eight-year-old Katrina, who was in
the pool with her brothers while her mother and stepfather were in the hot
tub. Gomez swam up to her, told her, “Don’t drown,” and squeezed her butt.
Afraid that Gomez was going to “kidnap [her],” Katrina swam behind one of
her brothers. Some time later, Katrina’s stepfather joined the children in the

pool. Gomez approached again and touched Katrina on her hip. 1
      Meanwhile, Kane told Campland security what had happened and,
later that same night, reported the incident to the police. The police
contacted Gomez on a bike path leading away from Campland. Kane
identified Gomez in a curbside showup. Police later reviewed surveillance
video of the pool area, which showed Gomez interacting with Kane and
Katrina.




1     The summary of the offenses against Katrina is taken from her
preliminary hearing testimony, as it was read to the jury at trial. The jury
also watched a video of a forensic interview conducted at a local Child
Advocacy Center, in which Katrina gave a similar account of the events.
                                       3
      The prosecution charged Gomez with one count of committing a lewd
act upon a child 14 or 15 years of age (bringing Kane’s hand to Gomez’s penis)

(Pen. Code, 2 § 288, subd. (c)(1); count 1), three counts of committing a lewd
act upon a child under 14 years of age (touching Katrina’s buttocks and hip

area with his hand, and touching a third child’s legs with his feet 3) (§ 288,
subd. (a); counts 2 through 4), and one count of failing to register as a sex
offender (§ 290.018, subd. (b); count 5). As to each count of committing a lewd
act upon a child under the age of 14, the prosecution further alleged the
multiple-victim circumstance pursuant to the One Strike law (§ 667.61,
subds. (b), (c), & (e)). Two aggravating sentencing factors were asserted as
well (Cal. Rules of Court, rule 4.421(b)(2) & (3)).
      A jury convicted Gomez of the offenses against Kane and Katrina
(counts 1 through 3), but found him not guilty of the offense against the
third child (count 4) and found the multiple-victim circumstance not true.
In bifurcated proceedings, Gomez pleaded guilty to failing to register
(count 5) and the court found true both aggravating sentencing factors.
      The court sentenced Gomez to a total determinate term of 11 years,
four months in state prison, comprised of the upper term of eight years for
one lewd act offense against Katrina (count 2) plus three consecutive terms

of eight months for the remaining offenses (counts 1, 3, and 5). 4


2     Further undesignated statutory references are to the Penal Code.
3    The prosecution presented evidence that before encountering Kane and
Katrina, Gomez used his feet to touch the legs of a 13-year-old girl in a hot
tub.
4     These terms do not equal 11 years, four months. It appears the trial
court erred in imposing eight months on count 3, as one-third the midterm for
a section 288, subdivision (a) offense is two years. But since we are reversing
the judgment in this case, Gomez will eventually be resentenced.
                                        4
                                DISCUSSION

      Gomez maintains the trial court violated his Sixth Amendment right
to confront and cross-examine adverse witnesses as well as his Fourteenth
Amendment right to due process when it admitted Katrina’s preliminary
hearing testimony and forensic interview after finding her unavailable.

A.    Additional Background

      Testimony began on October 25, 2023. At the end of that day, after
several witnesses had testified, the prosecutor alerted the trial court that
Katrina’s mother (Mother) had “become uncooperative” and no longer wanted
to bring Katrina to court. The prosecutor explained that Katrina testified
at the preliminary hearing and the district attorney’s (DA) office had
maintained contact with Mother ever since. Mother received a subpoena for

trial, 5 understood she was supposed to bring Katrina to court to testify the
following day, and was initially amenable to doing so. But when the DA
investigator called Mother that afternoon to confirm Katrina would testify
first thing in the morning, Mother was suddenly “adamant” that she would
not bring Katrina “despite any accommodations that we were willing to
offer.” A paralegal in the office also contacted Mother, and she “reiterated
the same thing about no longer coming.” Mother indicated that she did not
like Katrina testifying previously, she felt Katrina no longer remembered the




5     Under section 1328, subdivision (b)(1), if service of a subpoena is to be
made on a minor under 12 years of age, “service shall be made on the minor’s
parent, guardian, conservator, or similar fiduciary . . . . The person served
shall have the obligation of producing the minor at the time and place
designated in the subpoena. A willful failure to produce the minor is
punishable as a contempt pursuant to Section 1218 of the Code of Civil
Procedure.”
                                       5
incident, and she did not want to bring Katrina to court because it was
traumatic for her daughter.
      Given the circumstances, the prosecutor asked the court to declare
Katrina unavailable and allow her preliminary hearing testimony to be read
and her forensic interview to be played for the jury. In response, defense
counsel directed the court to Evidence Code section 240, subdivision (a)(5),
which states that a witness may be deemed unavailable when they are
“[a]bsent from the hearing and the proponent of his or her statement has
exercised reasonable diligence but has been unable to procure his or her
attendance by the court’s process.” Counsel accordingly requested
“statements or an affidavit as to what efforts” the prosecution had made to
secure Katrina’s presence. The prosecutor reiterated that Mother was
subpoenaed. “She was aware, she was initially inclined to come to court but
then changed and now is no longer coming. And there’s no other acts that
produce the witness for trial [sic]. Certainly, the People cannot be required
to otherwise produce an eight-year-old child in court if her parent is not
bringing her.”
      The court was “really concerned”—noting this was “a very serious 15-
to-life” case against Gomez—and requested to hear an explanation from
Mother directly, to ensure she had a legitimate reason for refusing to bring
Katrina to court. The prosecutor confirmed that Mother was willing to come
to court in the morning to speak to the judge. Defense counsel asked “if we
could perhaps do it over the phone right now” instead, so he could research
the issue that night with Mother’s explanation in mind. The prosecutor
agreed.




                                       6
      At the outset of the phone call, the court placed Mother under oath and
apologized for “put[ting] [her] through this,” but emphasized the importance
of the issue given the seriousness of the case. The court first asked whether
Katrina exhibited any signs of trauma—such as problems sleeping—after the
forensic interview or preliminary hearing. Mother said, “No, but she said she
doesn’t want to talk about that anymore” and “she doesn’t remember.” The
court clarified: “And as a result of her just saying she doesn’t want to talk
about it, that’s why you’re not bringing her in?” Mother replied: “I can’t force
her to the car and . . . drag her to . . . the court. She doesn’t want to go.”
When the court asked whether Mother believed Katrina would physically
refuse to get in the car, Mother said she did not know and did not want to try.
      Mother went on to explain that Katrina did not want to discuss the
incident “especially the way how it was [in] the previous court” (i.e., the
preliminary hearing), which Mother described as unpleasant and
inappropriate for a child given the number of people present, the questions
asked, and the perceived rudeness of the previous judge. Katrina had
“problem feelings about that” and Mother did not “want to put her through
this again.”
      The court apologized to the extent the previous judge was rude. It
expressed its intention “to make the courtroom as comfortable as possible”
for Katrina. To that end, the court offered to have a service dog sit beside
Katrina during her testimony, to have Mother present in the courtroom as a
support person, and to move the witness podium so that Katrina would not
have to look at Gomez. The court asked whether Katrina would feel
comfortable testifying with all of those accommodations in place. Mother
responded: “I don’t know. I mean it’s – I understand there are a lot of people
there, right, like a jury?” The court confirmed there would be 14 jurors in the


                                         7
courtroom. Mother expressed that she did not feel it was good for Katrina to
discuss the incident in front of several strangers. She was “afraid this whole
ordeal will traumatize her more than the” incident itself and she did not
“want to put her through this.”
      At the prosecutor’s request, the court confirmed with Mother that she
received the subpoena to bring Katrina to court. Defense counsel did not
have any additional questions for Mother.
      After ending the call, the court told counsel it was inclined to find
Katrina unavailable given Mother’s statement under oath that testifying at
trial would traumatize Katrina. It invited counsel to research the issue and
provide additional argument in the morning. At that time, defense counsel
posited there was no reason to believe Katrina would be traumatized since
there were no signs of trauma after the forensic interview or preliminary
hearing. He asserted that simply refusing to testify did not justify an
unavailability finding. To that point, the prosecutor maintained that the
court did not need to find Katrina suffered trauma in order to deem her
unavailable under Evidence Code section 240, subdivision (a)(5); it only
needed to find that the prosecution exercised due diligence in securing her
testimony, which it had. As the court understood the conversation, Mother
believed that Katrina would be traumatized—not because she lost sleep, had
nightmares, or cried after her prior statements—but because of how she was
treated during the preliminary hearing and because it is generally “very
traumatizing for a young child of that age to come into a courtroom with 20-
some strangers in the courtroom and provide testimony.” The court also
highlighted that Mother was “adamant” she would not bring Katrina despite
the accommodations offered.




                                        8
      By morning, the prosecutor filed a written motion to admit Katrina’s
prior statements. She maintained that Katrina was unavailable under
Evidence Code section 240, subdivision (a)(5) because the prosecution was
unable to procure her live testimony despite reasonable diligence. Their
efforts included maintaining contact with Mother for months leading up to
trial, serving her with a subpoena to bring Katrina to trial, keeping her
apprised of trial scheduling, and arranging to have a service dog available for
Katrina. Mother never indicated she would not bring Katrina to court until
the day before Katrina was due to testify. In support of the motion, the DA
investigator submitted a declaration confirming that he spoke with Mother
by phone. Mother stated she would not bring Katrina to court “because [she]
felt her daughter already provided enough information”; “the investigation
and court process was too traumatic to her daughter, causing her daughter to
now claim she did not remember the events”; and “she would not allow her
daughter to be subjected to any more events causing her to be traumatized.”
      Back in court, before the jury arrived, defense counsel stated he was
unable to find a published case with similar facts addressing the issue at
hand. But he now believed the applicable provision was Evidence Code
section 240, subdivision (a)(3)—under which a declarant who is “unable to
attend or to testify at the hearing because of then-existing physical or mental
illness or infirmity” may be deemed unavailable. Counsel contended this
provision was not satisfied because the prosecution had failed to present
expert testimony regarding Katrina’s mental condition (see id., subd. (c)).
The prosecutor submitted that subdivisions (a)(3) and (a)(5) of Evidence Code
section 240 were alternative grounds for the court to find unavailability, and
she was relying on (a)(5), which only required the court to find the
prosecution exercised due diligence in attempting to procure Katrina’s


                                       9
testimony. In response, defense counsel suggested that subdivision (a)(5) did
not apply because Mother and Katrina were not missing.
      The court expressed great discomfort with the situation. On one hand,
it believed “the DA’s office has done everything in its power to get this child
here in court” and it could not simply issue a material witness warrant since
Katrina was a child and the victim of a sexual offense. On the other hand,
the defense was entitled to have the jury hear that Katrina had purportedly
forgotten the entire incident. The court also acknowledged that, the day
prior, it “was fixated on the trauma to the child” and its tentative findings
were based on Mother’s “representation that her child would suffer trauma if
she testified,” which could reasonably fall under Evidence Code section 240,
subdivision (a)(3). At the same time, defense counsel had not furnished any
authorities suggesting that subdivision (a)(5) could not apply to the situation
before it.
      Ultimately, the court found “under 240(a)(5) that the district attorney
has exercised reasonable diligence to secure Katrina’s testimony; has
subpoenaed her mother; has been in good contact with the mother; and that it
is through no-fault of the DA’s office that yesterday the mother just decided
she was refusing to bring Katrina to court for the reasons that are on the
record.” Its admission of Katrina’s prior statements, however, was
conditioned upon a stipulation being read to the jury explaining the situation.
Subject to the defense’s objection on unavailability, counsel agreed to the
following stipulation, which was read to the jury before the preliminary
hearing testimony and forensic interview were presented:
             “Witness Katrina. Her mother has indicated to the Court
             that she is refusing to bring Katrina to court. She does not
             want Katrina to be subject to the court process any longer.
             Her mother indicates that Katrina now says that she has
             no memory of the specifics of this incident on June 9, 2023.”

                                          10
      The court instructed the jury “to regard those facts as having been
conclusively proved.”

B.    Legal Principles Regarding Unavailability

      “It is axiomatic that a criminal defendant has a fundamental right to
confront the witnesses against him. (U.S. Const., 6th & 14th Amends.; Cal.
Const., art. I, § 15; Pen. Code, § 686.) It is equally well settled that the right
of cross-examination is the primary interest secured by the confrontation
guarantee and an essential safeguard of a fair trial.” (People v. Brock (1985)
38 Cal.3d 180, 188–189.) Accordingly, “to deprive an accused of the right to
cross-examine the witnesses against him is [also] a denial of the Fourteenth
Amendment’s guarantee of due process of law.” (Pointer v. Texas (1965) 380
U.S. 400, 405.) “Although important, the constitutional right of confrontation
is not absolute.” (People v. Herrera (2010) 49 Cal.4th 613, 621 (Herrera).)
“[T]here has traditionally been an exception to the confrontation requirement
where a witness is unavailable and has given testimony at previous judicial
proceedings against the same defendant which was subject to cross-
examination by that defendant.” (Barber v. Page (1968) 390 U.S. 719, 722
(Barber); accord, Crawford v. Washington (2004) 541 U.S. 36, 59 (Crawford).)
      This exception is codified in Evidence Code section 1291, subdivision
(a)(2), which provides that “[e]vidence of former testimony is not made
inadmissible by the hearsay rule if the declarant is unavailable as a witness
and [¶] . . . [¶] [t]he party against whom the former testimony is offered was a
party to the action or proceeding in which the testimony was given and had
the right and opportunity to cross-examine the declarant with an interest and
motive similar to that which he has at the hearing.” Accordingly, “when the
requirements of [Evidence Code] section 1291 are met, the admission of



                                        11
former testimony in evidence does not violate a defendant’s constitutional
right of confrontation.” (Hererra, supra, 49 Cal.4th at p. 621.)
      Here, the parties do not dispute that Katrina’s statements during the
preliminary hearing and forensic interview were testimonial. (See Crawford,
supra, 541 U.S. at p. 68 [the term “ ‘testimonial’ . . . applies at a minimum to
prior testimony at a preliminary hearing”]; People v. Sisavath (2004) 118
Cal.App.4th 1396, 1400–1403 [child’s statements in forensic interview may be
testimonial].) At issue is whether she was unavailable.
      “The fundamental purpose of the unavailability requirement is to
ensure that prior testimony is substituted for live testimony, the generally
preferred form of evidence, only when necessary.” (People v. Reed (1996) 13
Cal.4th 217, 225 (Reed).) A witness is not “ ‘unavailable’ in the constitutional
sense unless the prosecution has made a ‘good faith effort’ to obtain the
witness’s presence at the trial.” (Hererra, supra, 49 Cal.4th at p. 622, quoting
Barber, supra, 390 U.S. at pp. 724–725.) “The United States Supreme Court
has described the good-faith requirement this way: ‘The law does not require
the doing of a futile act. Thus, if no possibility of procuring the witness exists
(as, for example, the witness’ intervening death), “good faith” demands
nothing of the prosecution. But if there is a possibility, albeit remote, that
affirmative measures might produce the declarant, the obligation of good
faith may demand their effectuation. “The lengths to which the prosecution
must go to produce a witness . . . is a question of reasonableness. [Citation.]
The ultimate question is whether the witness is unavailable despite good-
faith efforts undertaken prior to trial to locate and present that witness.” ’ ”
(Hererra, at p. 622, quoting Ohio v. Roberts (1980) 448 U.S. 56, 74.)




                                       12
      Our state Evidence Code—specifically, section 240—includes a
nonexhaustive list of circumstances under which a witness may be deemed
unavailable. (People v. Smith (2003) 30 Cal.4th 581, 623–624 (Smith).) Two
enumerated categories of unavailability were discussed in the proceedings
below. As noted, under Evidence Code section 240, subdivision (a)(3), an
unavailable witness includes one who is “unable to attend or to testify at the
hearing because of then-existing physical or mental illness or infirmity.” To
establish unavailability under this subdivision, the illness or infirmity must
be so severe that it is relatively impossible, and not merely inconvenient, for
the witness to testify. (People v. Stritzinger (1983) 34 Cal.3d 505, 517–518
(Stritzinger).) “In the context of mental illness or infirmity, the phrase
‘relatively impossible’ . . . includes the relative impossibility of eliciting
testimony without risk of inflicting substantial trauma on the witness.”
(People v. Winslow (2004) 123 Cal.App.4th 464, 471–472 (Winslow).)
      While the statute does not specifically require expert testimony on this
point, the Supreme Court has determined that expert testimony is generally
necessary to demonstrate “the likely effect of the court appearance on the
physical or mental health of the witness.” (Stritzinger, supra, 34 Cal.3d
at p. 518; see also Evid. Code, § 240, subd. (c) [“Expert testimony that
establishes that physical or mental trauma resulting from an alleged crime
has caused harm to a witness of sufficient severity that the witness is
physically unable to testify or is unable to testify without suffering
substantial trauma may constitute a sufficient showing of unavailability
pursuant to paragraph (3) of subdivision (a)”].) Alternatively, the trial court
may properly find that a witness’s mental infirmity renders it relatively
impossible for them to testify if the witness appears before the court in
person, allowing the court to directly observe the witness’s demeanor.


                                         13
(Stritzinger, at pp. 517–519, citing People v. Rojas (1975) 15 Cal.3d 540, 547–
551 [witness advised the trial court that he would not testify because he
feared for his life and that of his family].)
      In addition, under Evidence Code section 240, subdivision (a)(5), a
witness who is “[a]bsent from the hearing” may be deemed unavailable where
“the proponent of his or her statement has exercised reasonable diligence but
has been unable to procure his or her attendance by the court’s process.”
This provision is often invoked in cases where the witness is missing and/or
residing outside of California. (See, e.g., Hererra, supra, 49 Cal.4th at
p. 623–629 [witness deported to El Salvador]; People v. Cogswell (2010)
48 Cal.4th 467, 477–479 [victim returned to Colorado] (Cogswell); Smith,
supra, 30 Cal.4th at pp. 608–611 [witness returned to Japan]; People v. Ayala
(2024) 101 Cal.App.5th 62, 64–65 [transient witness could not be found before
trial].) Factors relevant to evaluate reasonable diligence—also referred to
as due diligence in the case law—“ ‘include the timeliness of the search, the
importance of the proffered testimony, and whether leads of the witness’s
possible location were competently explored.’ ” (Hererra, at p. 622.)
      In their briefs, the parties discuss another category of unavailability
developed by caselaw. When a witness is physically present in court but
refuses to testify, the trial court may find the witness unavailable “ ‘only after
taking reasonable steps to induce the witness to testify unless it is obvious
that such steps would be unavailing.’ ” (Smith, supra, 30 Cal.4th at p. 624.)
In these cases, reasonable efforts typically include some combination of
questioning the witness under oath as to the reasons for their refusal; an
express order to answer questions; and a determination as to whether
additional time or a finding of contempt would change the witness’s mind.
(See, e.g., ibid.; People v. Lawson (2020) 52 Cal.App.5th 1121, 1126–1127,


                                         14
1129 (Lawson); People v. Francis (1988) 200 Cal.App.3d 579, 585, 587;
People v. Walker (1983) 145 Cal.App.3d 886, 891–894.) At the same time,
“[t]rial courts ‘do not have to take extreme actions before making a finding
of unavailability.’ ” (Smith, at p. 624; see, e.g., Lawson, at pp. 1129–1130
[where victim confirmed that a finding of contempt and $1,000 fine would not
persuade her to testify, the trial court was not required to actually take such

action before finding her unavailable].) 6
      “When a witness . . . has been the victim of sexual assault, the
determination of reasonableness must take into account the import of Code of
Civil Procedure section 1219, subdivision (b)” (Lawson, supra, 52 Cal.App.5th
at p. 1128), which prohibits a court from jailing such witnesses for contempt
based on their refusal to testify concerning the sexual assault. The purpose
of this provision “ ‘is not only to protect victims of sexual assault from further
victimization resulting from imprisonment or threats of imprisonment by our
judicial system, but also to begin to create a supportive environment in which
more victims might come forward to report and prosecute [perpetrators of]
sexual assault.’ ” (Cogswell, supra, 48 Cal.4th at p. 478.)
      In any case, the proponent of the evidence has the burden of showing
by a preponderance of competent evidence that the witness is unavailable.
(Smith, supra, 30 Cal.4th at p. 609; Winslow, supra, 123 Cal.App.4th at
p. 471.) We review the trial court’s resolution of disputed factual issues for


6      In 2010, subdivision (a)(6) was added to Evidence Code section 240.
(Stats. 2010, ch. 537, § 1.) This provision states that a witness who is
“[p]ersistent in refusing to testify concerning the subject matter of the
declarant’s statement despite having been found in contempt for refusal
to testify” may be found unavailable. The Lawson court held that this
amendment did not necessarily require a trial court to find a witness
who was refusing to testify in contempt before it could deem the witness
unavailable. (Lawson, supra, 52 Cal.App.5th at pp. 1130–1131.)
                                        15
substantial evidence and independently determine whether the facts
establish the witness’s unavailability. (Herrera, supra, 49 Cal.4th at p. 623.)

C.    The Prosecution Failed To Establish Katrina’s Unavailability

      Covering all bases, Gomez contends the prosecution failed to
demonstrate that Katrina was unavailable under any of the foregoing
standards. Applying our independent judgment to the record here, we agree.
      The question of whether the prosecution established Katrina’s
unavailability within the meaning of Evidence Code section 240, subdivision
(a)(3) need not detain us long. While the trial court believed that Mother felt
Katrina would be traumatized if she were to testify at trial—a credibility
finding we do not second guess on appeal—the record is devoid of evidence,
from either an expert or Katrina herself, suggesting that testifying would
cause her substantial trauma such that it was relatively impossible for her
to testify. (Compare, e.g., People v. Christensen (2014) 229 Cal.App.4th 781,
791–795 [physician and therapist of child with Asperger’s syndrome opined
that testifying would result in severe and long-lasting regression in emotional
health],Winslow, supra, 123 Cal.App.4th at pp. 469–470, 473 [psychiatrist of
child with posttraumatic stress disorder and developmental disabilities
opined he would suffer a setback in his recovery if he were to testify] with
Stritzinger, supra, 34 Cal.3d at pp. 516–518 [mother’s testimony describing
daughter’s emotional state was insufficient as a matter of law to establish the
effect that testifying would have on the daughter’s mental health], People v.
Williams (1979) 93 Cal.App.3d 40, 49–50, 54 [evidence showing that witness
would suffer temporary mental anguish from testifying was insufficient to
establish unavailability].) The Attorney General expressly denies that
Evidence Code section 240, subdivision (a)(3) applies here.



                                      16
      Whether the prosecution exercised good faith and reasonable diligence
in attempting to procure Katrina’s testimony within the meaning of Evidence
Code section 240, subdivision (a)(5) and the constitutional standard (see
Herrera, supra, 49 Cal.4th at p. 622 [“In this regard, ‘California law and
federal constitutional requirements are the same’ ”]) presents a more difficult
question. As defense counsel pointed out below, Katrina was not “[a]bsent

from the hearing” because she was missing or out-of-state, 7 as in the typical
case. The reason was that Mother, who was responsible for bringing young
Katrina to court (§ 1328, subd. (b)(1)), objected to doing so. Because Katrina
was not present in court refusing to testify, this case is also distinguishable
from those in which the trial court must make a reasonable attempt to induce
the witness to testify before finding them unavailable.
      In any event, our analysis does not rise and fall on how neatly the
established categories of unavailability apply to the circumstances before
us. The fundamental question remains whether, in our independent
judgment, the prosecution established that Katrina’s live testimony was
not available. (See Smith, supra, 30 Cal.4th at pp. 623–624; Reed, supra,
13 Cal.4th at pp. 226–228.) There were, essentially, two “layers” to Katrina’s
unavailability here. The first was Mother’s reluctance to bring Katrina to
court, and the second was Katrina’s ability or willingness to testify once in
court. Because the trial court found Katrina unavailable based on Mother’s
refusal, it did not reach the second “layer” of the analysis. In our view,
however, the record fails to establish that Mother was absolutely refusing
to bring Katrina to court.




7     The prosecutor represented that Mother lived in the county.
                                       17
      To be sure, substantial evidence supports the trial court’s findings that
the prosecution duly subpoenaed Mother; had maintained contact with her;
and was essentially blindsided in the middle of trial when she suddenly
decided she would not bring Katrina to court. We also appreciate that the
prosecutor promptly alerted the court and defense counsel about the issue
and arranged for Mother to appear before the court—telephonically, at
defense counsel’s request—for an unavailability hearing that same evening.
We disagree, however, that this sufficed to show Katrina’s unavailability.
      The problem is that the overall focus of the unavailability hearing was
determining why Mother did not want to bring Katrina to court, not the
extent to which Mother was resolute in that position. Whether based on the
prosecution’s due diligence duty or the court’s inducement duty, there are two
points in the unavailability hearing where the questioning of Mother fell
short. First, when the court offered various accommodations—providing a
service dog, allowing Mother to serve as a support person, and arranging the
courtroom so Katrina would not have to see Gomez—and asked whether
Katrina would feel more comfortable testifying with all that in place, Mother
responded, “I don’t know” and changed the subject to the number of jurors
that would be present in the courtroom. In our view, the prosecution or the
court should have pressed Mother to consider the accommodations offered—
perhaps overnight in discussion with Katrina—and unequivocally affirm that
they, nor any other accommodations, would sufficiently alleviate her

concern. 8


8     Before the unavailability hearing, the prosecutor generally represented
that Mother “would not be bringing Katrina in, despite any accommodations
that we were willing to offer.” But the DA investigator did not discuss this
point in his declaration supporting the motion to admit Katrina’s prior
statements.
                                      18
      Second, the prosecution had the court confirm that Mother received the
subpoena to bring Katrina to trial, but it was not confirmed that Mother
understood the subpoena was a court order that she was willing to violate to
avoid bringing Katrina to court. As noted above, the “willful failure” of a
parent to produce their child “at the time and place designated in [a]
subpoena” is punishable as a contempt. (§ 1328, subd. (b)(1).) We are not
suggesting the court needed to actually find Mother in contempt or even
threaten to do so, especially considering that this is a case of sexual abuse.
(See Lawson, supra, 52 Cal.App.5th at pp. 1129–1130 [in light of Code Civ.
Proc., § 1219, it would be “ ‘ “extreme” ’ ” to hold sexual assault victim in
contempt before finding her unavailable]; Cogswell, supra, 48 Cal.4th at
p. 478 [prosecution reasonably declined to request to have sexual assault
victim taken into custody and transported from Colorado to California to
testify].) But where a court is faced with a refusal to testify—or, as here,
reluctance to bring a child witness to testify—the caselaw reflects the
importance of impressing upon the refuser the solemnity of the court order
and determining their resolve in refusing to testify despite the order. (See,
e.g., Lawson, at p. 1129 [the prosecution advised the witness of the
consequences of ignoring a subpoena and the court asked whether a

contempt finding and a $1,000 fine would change her mind].) 9




9     The Attorney General suggests the prosecution “impliedly informed”
Mother that she was refusing a court order by confirming that she “received
the subpoena and understood its requirements.” But the DA investigator’s
declaration merely states that Mother “confirmed she received the subpoena
to bring her daughter Katrina . . . to court sent to her by email . . . .” There is
no indication that Mother appreciated the significance of refusing to comply
with the subpoena.
                                        19
      We also understand that the prosecution is not required to try
“everything that can be suggested in hindsight” in order to establish good
faith and due diligence. (People v. Sanchez (2016) 63 Cal.4th 411, 442; see
also People v. Diaz (2002) 95 Cal.App.4th 695, 706 [“ ‘[t]he law requires only
reasonable efforts, not prescient perfection’ ”].) But considering that Katrina
was a critical prosecution witness and Mother very suddenly changed her
mind about bringing her to court to testify, it would have been reasonable to
meaningfully explore available accommodations and to confirm that Mother
understood she would be violating a court order if she failed to do so. In other
words, the court needed to discern whether she did not want to bring Katrina
to testify or would not bring her. Although the DA investigator averred in
a declaration that Mother stated she “would not allow her daughter to be
subjected to any more events causing her to be traumatized” and “would not
bring Katrina to court.” her statements in the subsequent unavailability
hearing before the court were considerably more equivocal. For instance,
she repeatedly stated she did not “want to put [Katrina] through this” again
given the child-unfriendly environment of the preliminary hearing. In light
of her less firm responses, focus on the courtroom environment, and prior
cooperation with the prosecution, it would not have been plainly futile to
press these two lines of inquiry a bit further.
      To be clear, we are not suggesting that a parent’s staunch refusal to
bring their young child to court to recount a criminal offense committed
against them can never support an unavailability finding. But on the record
in this particular case, we are not convinced that Mother’s refusal was so
demonstrably solid. On such ambiguous terrain, it is the prosecution, not
the defense, that must bear the consequences. (See Barber, supra, 390 U.S.




                                       20
at p. 725 [“[t]he right of confrontation may not be dispensed with so

lightly”].) 10

D.     The Error Was Not Harmless Beyond a Reasonable Doubt

       Because the prosecution failed to demonstrate Katrina’s unavailability,
the trial court violated Gomez’s constitutional right to confrontation in
admitting Katrina’s preliminary hearing testimony and forensic interview.
(See Stritzinger, supra, 34 Cal.3d at p. 519.) We must therefore determine
whether the error was harmless beyond a reasonable doubt. (Id. at p. 520,
citing Chapman v. California (1967) 386 U.S. 18.) In conducting this inquiry,
we ask “ ‘whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction.’ ” (Stritzinger, at
p. 520.) “Where a fundamental constitutional right is at issue, erroneous
evidentiary rulings are seldom harmless under this standard . . . .” (Ibid.)
       Gomez asserts the erroneous admission of the preliminary hearing and
forensic interview requires reversal of all three lewd act offenses. Without
these prior statements, he argues, there was no evidence supporting the
offenses against Katrina (counts 2 and 3). The Attorney General specifically
concedes that if the prior statements were improperly admitted, reversal of
the offenses against Katrina is required. We accept the concession.
       As to the offense against Kane (count 1), Gomez argues that because
the jurors were instructed with CALCRIM No. 1191B—which told them if
they found beyond a reasonable doubt that he committed one or more lewd


10    Since we conclude the preliminary hearing and forensic interview were
improperly admitted based on the erroneous unavailability finding, we need
not address Gomez’s alternative claim that the forensic interview should not
have been admitted because he did not have a sufficient opportunity, motive,
and interest to cross-examine Katrina regarding her statements in the
interview.
                                       21
act offenses charged, they could conclude that he “was likely to commit and
did commit the other sex offenses charged in this case”—the admission of
Katrina’s prior statements was prejudicial as to him as well. The Attorney
General does not at all address the prejudicial impact the error might have
had with respect to the offense against Kane. (See In re Lopez (2023) 14
Cal.5th 562, 585 [“The Attorney General bears the burden of showing that
the error was harmless beyond a reasonable doubt”].)
      Since the jury convicted Gomez of the lewd act offenses against
Katrina, it necessarily found those offenses true beyond a reasonable doubt,
and the instruction expressly allowed the jury to consider those offenses in
deciding whether he committed the offense against Kane. Indeed, a finding
that Gomez abused another child in the pool on the same day tends to
undercut the defense theory that Kane’s hand accidentally touched his crotch
while they were shaking hands and treading water in the deep end of the
pool. Given this record, the Attorney General’s silence, and the exacting
standard of prejudice, we agree we must reverse count 1 as well.




                                      22
                               DISPOSITION

      The judgment is reversed as to counts 1, 2, and 3 and the matter is

remanded to the trial court for further proceedings. 11



                                                                      DATO, J.

WE CONCUR:



O’ROURKE, Acting P. J.



KELETY, J.




11    Our reversal means that Gomez will eventually be resentenced.
Accordingly, we need not decide his additional claims that the trial court
erred in imposing sentence on count 3 (see fn. 4, ante) and in declining to stay
(§ 654) one or two terms for the lewd act offenses.
                                      23