Lead Opinion
Opinion
Defendant Honorio Moreno Herrera was a member of the criminal street gang known as “Krazy Proud Criminals” or “KPC.” In June 2005, he and two fellow KPC members drove into the territory of a rival gang called “Logan,” and shot and killed Erick Peralta. In June 2006, Jose Portillo testified at a preliminary hearing that defendant confessed to the shooting. Defendant was then charged by information with one count of first degree murder, with a criminal street gang special circumstance and two gang-related enhancements. He was also charged with one count of street terrorism.
By the time defendant’s case was ready for trial in May 2007, Portillo could not be found. The prosecution filed a pretrial motion to admit Portillo’s preliminary hearing testimony, contending he was unavailable as a witness. After hearing evidence that Portillo had been deported to El Salvador in September 2006, and that El Salvador and the United States had no treaty providing for his extradition to this country to testify as a witness, the trial court ruled Portillo unavailable and allowed his testimony to be read to the jury. The Court of Appeal reversed, concluding the prosecution had failed to establish Portillo’s unavailability as required by the confrontation clauses of the federal and state Constitutions and the Evidence Code. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Evid. Code, §§ 1290, 1291, 240, subd. (a)(4), (5).)
Consistent with decisions of the United States Supreme Court and our state courts, we hold that the prosecution’s showing of Portillo’s unavailability, which was based on undisputed testimony, satisfied constitutional and state law requirements. Accordingly, we reverse the judgment of the Court of Appeal, and remand the matter to that court for further proceedings consistent with our opinion.
About 10:30 p.m. on June 19, 2005, Erick Peralta and his cousin Efren Enriquez were walking on Spurgeon Street in Santa Ana toward a convenience store. According to Enriquez, a blue four-door car with three people passed them and stopped. A man exited the car and asked where they were from. Enriquez put his hand up and said, “What’s up?” as he and Peralta kept walking. A second man with a gun got out of the car and fired at them once. Peralta was shot in the head and killed. The two men got back in the car, someone yelled out “KPC,” and the car drove off.
Santa Ana Police Detective Richard Ashby interviewed Enriquez shortly after the shooting. Enriquez was shown photographs of active KPC gang members, but he did not identify anyone as the suspects.
Three months later, on September 17, 2005, Jose Portillo, a former KPC member, was driving a car with defendant as one of the passengers. Portillo sped away when he saw the police. The police gave chase, and Portillo was arrested for felony evading. Defendant was arrested for attempting to flee from Portillo’s car.
On September 19, 2005, Portillo told Detective Ashby that defendant had bragged to him about shooting a person who identified himself as a Logan gang member. Defendant had said two people, a guy from “Clown Town” and another “youngster” he did not identify, were with him at the time of the shooting. Portillo also described the car used in the shooting as a dark purple Chevrolet Beretta. Portillo had previously seen defendant driving this car and had seen him with Luis Estadillo and Paul Del La Cruz, additional suspects in the case.
On or about November 19, 2005, defendant had a two-hour interview with Detective Ashby after waiving his right to an attorney and right to remain silent. Defendant initially denied knowledge of the shooting, but then admitted witnessing it. He named “Striker,” an Anaheim “Clown Town” gang member, as the driver involved in the crime, but refused to name the shooter.
Several months later, on June 19, 2006, Portillo testified at defendant’s preliminary hearing. According to Portillo, defendant told Portillo in June of 2005 that defendant was the shooter who killed Peralta. Defendant was bound over for trial and charged by information with one count of first degree murder (Pen. Code, § 187, subd. (a)), with a criminal street gang special circumstance (id., § 190.2, subd. (a)(22)), a gang-benefit enhancement (id., § 186.22, subd. (b)), and an enhancement for gang member vicarious discharge of a firearm causing death (id., § 12022.53, subds. (d), (e)(1)). Defendant was also charged with one count of street terrorism. (Id., § 186.22, subd. (a).)
On May 30, 2007, the prosecution filed a motion to admit Portillo’s preliminary hearing testimony. Claiming that Portillo was unavailable to testify at trial, the prosecution requested a hearing on the issue of due diligence. According to the motion, Portillo had been in custody on an unrelated matter at the time of defendant’s June 19, 2006, preliminary hearing, and he agreed to provide truthful testimony in exchange for a more lenient sentence. After testifying at the preliminary hearing, Portillo entered a plea in the unrelated matter and was sentenced. Records maintained by the United States Department of Homeland Security indicated that Portillo was later flown to El Salvador, his country of origin, and released.
That same day, May 30, 2007, the trial court held an evidentiary hearing on the prosecution’s motion. Investigator Ed Wood of the Orange County District Attorney’s Office testified regarding his efforts to secure Portillo’s presence for trial and his communications with the Department of Homeland Security concerning Portillo’s whereabouts. Wood said he began looking for Portillo the Friday before, on May 25. He started by running Portillo’s name through the law enforcement database and discovered two outstanding “no bail” warrants for his arrest.
Wood also obtained a “Local Arrest Record” printout listing two telephone numbers for Portillo’s family members or friends, but he ascertained those numbers had been disconnected or changed. Wood additionally asked Detective Ashby to try contacting Portillo’s friends and family, in case Ashby had information in the database that was not accessible to Wood.
Around 3:00 or 3:30 p.m. that same Friday, Wood contacted Special Agent Mark Johnston of the United States Department of Homeland Security. When asked if Portillo had been deported, Johnston checked and confirmed he had been deported to El Salvador, his country of origin. The deportation had
At 8:30 a.m. on Tuesday, May 29, 2007, Wood spoke with Art Zorilla, an investigator in the foreign prosecution unit of the Orange County District Attorney’s Office. At Wood’s request, Zorilla contacted INTERPOL, the agency in El Salvador that would search a database for Portillo and send officers out. As of 1:00 p.m. on Wednesday, May 30, Wood had heard nothing from El Salvador about Portillo. Zorilla, however, informed Wood that even if Portillo could be located in El Salvador, that country had no treaty with the United States and would not extradite him.
After Wood concluded his testimony, the prosecution reminded the court that Portillo “entered into an agreement” before testifying at the preliminary hearing. The prosecution offered to stipulate that agreement into evidence, as well as any moral turpitude prior conviction that would have been available to the defense for impeachment purposes had Portillo been present to testify. Finding the prosecution acted with “due diligence” in attempting to secure Portillo’s presence, the trial court permitted the use of his preliminary hearing testimony at trial.
A jury convicted defendant of the charged crimes and found true the alleged enhancements and the gang special circumstance allegation. He was sentenced to life in prison without the possibility of parole.
A divided Court of Appeal reversed the judgment, concluding that admission of Portillo’s preliminary hearing testimony at trial was reversible error.
Discussion
The central issue is whether admission of Portillo’s preliminary hearing testimony was erroneous or in violation of defendant’s constitutional right of confrontation.
A criminal defendant has the right, guaranteed by the confrontation clauses of both the federal and state Constitutions, to confront the prosecution’s witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) The right of confrontation “seeks ‘to ensure that the defendant is able to conduct a
Although important, the constitutional right of confrontation is not absolute. (Chambers v. Mississippi, supra,
This traditional exception is codified in the California Evidence Code.
There is no dispute that defendant was a party to the action in which Portillo’s former testimony was given, and that he actually exercised his right
A witness who is absent from a trial 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. (Barber v. Page, supra, 390 U.S. at pp. 724-725 (Barber).) 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.” (Ohio v. Roberts (1980)
Our Evidence Code features a similar requirement for establishing a witness’s unavailability. Under section 240, subdivision (a)(5) (section 240(a)(5)), a witness is unavailable when he or she is “[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.” (Italics added.) The term “[reasonable diligence, often called ‘due diligence’ in case law, ‘ “connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.” ’ ” (People v. Cogswell (2010)
Before analyzing the good faith and due diligence requirements in depth, we briefly address section 240, subdivision (a)(4) (section 240(a)(4)), which provides that a witness is unavailable when he or she is “[a]bsent from the hearing and the court is unable to compel his or her attendance by its process.” In contrast to section 240(a)(5), section 240(a)(4) makes no mention of a “reasonable diligence” requirement, thus indicating the Legislature’s intent to dispense with such a showing in those cases where the court has no
As indicated, to establish unavailability, the prosecution must show that its efforts to locate and produce a witness for trial were reasonable under the circumstances presented. (Ohio v. Roberts, supra,
In this case, we must consider what prosecutorial efforts will sustain a finding of unavailability when the absent witness was not in this jurisdiction but in another country. We start by consulting two decisions of the United States Supreme Court: Barber, supra,
In Barber, supra,
Barber began by noting the state had made “absolutely no effort to obtain the presence of [the witness] at trial other than to ascertain that he was in a federal prison outside Oklahoma.” (Barber, supra,
Mancusi, supra,
Mancusi concluded the use of the second Tennessee conviction did not violate the petitioner’s right of confrontation. Mancusi observed that in Barber, the uniform act to secure the attendance of witnesses from without a state, the availability of appropriate federal writs, and the policy of federal prisons to honor writs issued out of state courts, all supported Barbed s conclusion that “the State had not met its obligations to make a good-faith effort to obtain the presence of the witness merely by showing that [the witness] was beyond the boundaries of the prosecuting State.” (Mancusi, supra,
Under those circumstances, “good faith” did not require additional efforts by the prosecution. As far as the high court was concerned, “[u]pon discovering that Holm resided in a foreign nation, the State of Tennessee, so far as this record shows, was powerless to compel his attendance at the second trial, either through its own process or through established procedures depending on the voluntary assistance of another government.” (Mancusi, supra,
Subsequent to Mancusi, the Supreme. Court stated in Ohio v. Roberts, supra,
California decisions are in accord. In People v. Ware (1978)
People v. St. Germain (1982)
People v. Sandoval (2001)
Although acknowledging that the trial court had no power to compel the witness’s appearance at trial (Sandoval, supra,
Finally, Smith, supra,
Applying the independent review standard to the undisputed facts, Smith found the prosecution satisfied its burden of showing due diligence upon obtaining “three important pieces of information; (1) Fukumoto testified at the preliminary hearing that he was a Japanese national and intended to
The foregoing authorities make clear that, when a criminal trial is at issue, unavailability in the constitutional sense does not invariably turn on the inability of the state court to compel the out-of-state witness’s attendance through its own process, but also takes into consideration the existence of agreements or established procedures for securing a witness’s presence that depend on the voluntary assistance of another government. (Mancusi, supra, 408 U.S. at pp. 211-213.) Where such options exist, the extent to which the prosecution had the opportunity to utilize them and endeavored to do so is relevant in determining whether the obligations to act in good faith and with due diligence have been met.
Mindful of the foregoing authorities, we now consider whether the admission of Portillo’s preliminary hearing testimony at trial was erroneous or violated defendant’s constitutional right of confrontation. In assessing whether or not Portillo was properly found unavailable, we review the trial court’s factual findings under the substantial evidence standard and independently review whether the facts demonstrate prosecutorial good faith and due diligence. (Cromer, supra, 24 Cal.4th at pp. 902-903.)
Here, the evidence concerning Portillo’s unavailability as a witness was as follows. District attorney investigator Ed Wood took the stand on Wednesday, May 30, 2007, and testified that on May 25, the Friday before, he learned from Special Agent Mark Johnston of the United States Department of Homeland Security that Portillo had been deported to his native El Salvador in September 2006. On Tuesday, May 29, at 8:30 a.m., Wood requested that
After hearing this testimony, the trial court determined that Portillo “certainly was deported.” The court further stated that “it would be speculative to come up with further efforts that could be fruitful in obtaining his presence, especially given the testimony we heard with regard to the relationship between El Salvador and this country with regard to extradition.” Concluding the prosecution had acted with due diligence, the trial court ruled Portillo’s preliminary hearing testimony admissible.
Reviewing the record, we observe that Wood’s testimony amply supported the trial court’s finding that Portillo had been deported to his native El Salvador in September 2006, about three months after the preliminary hearing and more than eight months before defendant’s trial. Wood’s testimony also provided substantial support for the court’s determination that Portillo was not in California at the time of trial, but was in El Salvador and therefore beyond the court’s own process.
In finding to the contrary, the Court of Appeal emphasized that the prosecution made no effort to locate Portillo until the last business day before defendant’s trial was scheduled to start, thus leaving insufficient time for an
The Court of Appeal’s analysis is flawed in several respects. First, its characterization of Portillo’s deportation as a “not unexpected event” has no evidentiary foundation in the record. Indeed, defendant has never claimed that the prosecution knew or should have known of Portillo’s immigration status or of any pending deportation issue. Ordinarily, “[t]he prosecution is not required ‘to keep “periodic tabs” on every material witness in a criminal case . . . .’ [Citation.]” (People v. Wilson, supra,
Second, although the timing and competence of the prosecution’s efforts to locate the absent witness within the jurisdiction are important factors in measuring good faith and due diligence (e.g., People v. Wilson, supra, 36 Cal.4th at pp. 341-342; Cromer, supra, 24 Cal.4th at pp. 903-904), the Court of Appeal failed to give sufficient weight to the information learned by the prosecution during its search efforts, i.e., that Portillo, a foreign national, had been deported eight months before to a country that lacked an agreement with the United States for procuring a witness’s attendance at a trial in this state. Thus, even assuming the prosecution should have started its search weeks earlier, further efforts to locate Portillo in California would have been futile and hence were unnecessary. (Ohio v. Roberts, supra,
Third, the Court of Appeal’s suggestion that Portillo might have returned on his own to California was pure conjecture. Wood’s search efforts turned up no indication that Portillo had returned from El Salvador. A check of the law enforcement database, and Wood’s discovery that warrants for Portillo remained unexecuted, confirmed that Portillo had not had any contact with authorities.
Finally, the Court of Appeal did not specify what more the prosecution should have done to obtain Portillo’s return to this country had it started its search weeks before the trial date and discovered the fact of his deportation sooner.
Relying on U.S. v. Bourdet (D.D.C. 2007) 477 F.Supp.2d 164, defendant contends that, had Portillo been located in El Salvador, the prosecution could have secured his presence in the United States outside the terms of any treaty. Even had Portillo been found, defendant’s reliance on Bourdet is misplaced. In Bourdet, the defendants were Guatemalan nationals who were arrested in
Conclusion and Disposition
For all the foregoing reasons, we conclude the trial court properly admitted Portillo’s preliminary hearing testimony at defendant’s trial. Based on the undisputed testimony presented to that court, we agree the prosecution satisfied its obligations of good faith and due diligence in demonstrating Portillo’s unavailability as a witness, and find the Court of Appeal erred in determining otherwise. The judgment of the Court of Appeal is reversed, and the matter is remanded to that court for further proceedings consistent with our opinion.
George, C. J., Kennard, J., Chin, J., Moreno, J., and Corrigan, J., concurred.
Notes
The prosecutor informed the court that he personally spoke with the Orange County Probation Department and ascertained that one arrest warrant had been issued in April 2007 for Portillo’s failure to report to probation after his release from custody in June 2006. The record is unclear as to the source and date of the other warrant.
Strictly speaking, the United States and El Salvador did have an extradition treaty. (Treaty of Extradition Between the United States of America and El Salvador, Apr. 18, 1911, 37 Stat. 1516, T.S. No. 560.) That treaty, however, would not have permitted Portillo’s extradition or return to the United States to testify as a witness at defendant’s trial.
All further statutory references are to this code unless otherwise indicated.
For purposes of the Evidence Code, former testimony includes “testimony given under oath” in “a former hearing or trial of the same action.” (§ 1290, subd. (a).)
Mancusi declined to consider a 1964 amendment to 28 United States Code section 1783 because it was not available to the Tennessee authorities at the time of the petitioner’s retrial. (Mancusi, supra,
The version of 28 United States Code section 1783 that applied in St. Germain differed substantially from the version existing at the time of the relevant events in Mancusi. (Compare St. Germain, supra,
Sandoval described the treaty as follows. “Article 7 allows a prosecutor in the United States to request that a witness in Mexico be compelled by Mexican authorities to appear and testify, but only in Mexico. Article 8 provides for the transportation to the United States of a
We note Sandoval suggested that good faith also required the prosecution to go beyond the treaty in trying to secure the absent witness’s presence. That part of its discussion, however, was based on additional facts not presented here, i.e., there, the deported witness had previously disclosed at the preliminary hearing that he was in the country illegally (Sandoval, supra,
In Smith, supra,
Relying on concessions made by the defendant, one California decision stated bluntly that no showing of due diligence is required if the witness is a foreign citizen outside of the United States at the time of trial. (People v. Denson, supra, 178 Cal.App.3d at pp. 791, 793.) Unavailability in the constitutional sense, however, requires a showing that the prosecution acted in good faith, and the lengths to which the prosecution must go to produce a witness in a given set of circumstances is a question of reasonableness.
Defendant complains no effort was made to contact the consulate or embassy of El Salvador to confirm Portillo’s presence and/or residence in that country. As indicated, defendant made no objection whatsoever to Wood’s testimony at the hearing.
Wood testified he started his search for Portillo on May 25, 2007, the Friday (before a three-day weekend) when both parties announced they were ready for trial. At that time, the trial was scheduled to begin the following Tuesday, May 29, 2007, although it was trailed one more day.
Our conclusion on this point disposes of defendant’s specific contention that good faith and due diligence obligated the prosecution to track down and speak with Portillo’s last known attorney, his local KPC gang associates, and his child, mother, and sister living in Santa Ana, California.
Portillo made clear at the June 19, 2006, preliminary hearing that he had been on probation before, that he would go to great lengths to avoid being charged with a probation violation, and that he understood he would be placed on three years of formal probation on a pending felony evading charge if he agreed to testify truthfully at the preliminary hearing. Portillo’s own words gave rise to the reasonable inference that he would be highly reluctant to return to the United States to face a likely probation violation charge for failing to report to his probation officer while absent from the United States.
The Court of Appeal does not indicate what date it believed the prosecution’s search for Portillo should have started.
Concurrence Opinion
As the majority frames the issue, this case requires that we consider what prosecutorial efforts will sustain a finding of unavailability when the absent witness was not in this jurisdiction but in another country. (Maj. opn., ante, at p. 623.) The majority concludes that if evidence supports the trial court’s finding that the witness was out of the country and in a country with which no treaty exists for the production of witnesses for trials in the United States, the prosecution has “fulfilled its obligation of good faith and due diligence” (id. at p. 629) in demonstrating the witness’s unavailability; consequently, the trial court properly admitted Portillo’s preliminary hearing testimony (ibid.; see also id. at p. 632). I concur that the trial court properly admitted Portillo’s preliminary hearing testimony at defendant’s trial. I do so, however, not on grounds the prosecution exercised due diligence, but on grounds of harmless error; as the
The facts of this case are analogous to a situation in which the prosecution is unjustifiably late in beginning its search for a witness, but then discovers the witness died several months earlier. In that situation, even had the prosecution commenced its search in a timely manner, the result would be the same. Hence, any dereliction of the prosecution’s duty to exercise due diligence to procure the witness’s attendance at trial would be harmless.
The same is true here. Evidence showed Portillo had been deported to El Salvador eight months before trial. The prosecution did not begin looking for him until the last court day before the trial was scheduled to begin. But even had the prosecution begun its search several days or weeks earlier, it would merely have discovered Portillo was out of the country and immune from the court’s process. In short, even had the prosecution been reasonably diligent, the result would have been the same.
Although I thus agree with the majority’s decision to reverse the Court of Appeal’s contrary ruling, I do not join that part of its analysis that concludes the prosecution satisfied its obligation of exercising due diligence in seeking to locate Portillo. As the majority relates, trial was scheduled for March 7, 2007, but was continued two months to May 21 because neither side was ready. On and after May 21 the trial was trailed three times, but by Friday, May 25, it was fairly certain the trial would commence on the next court day, Tuesday, May 29. Only then did investigator Wood begin to search for Portillo. “We have said that the term ‘due diligence’ is ‘incapable of a mechanical definition,’ but it ‘connotes persevering application, untiring efforts in good earnest, efforts of a substantial character. ’ ” (People v. Cromer (2001)
In my view, the prosecution’s belated efforts to locate Portillo—its star witness—do not satisfy this rigorous standard. Rather, in finding good faith and due diligence, the majority seems to be assessing the prosecution’s efforts in hindsight; that is, because ultimately the evidence showed any reasonable efforts to locate Portillo would have been futile, the majority concludes the prosecution’s efforts, however meager, were sufficient. But harmless error is not due diligence.