THE PEOPLE, Plаintiff and Appellant, v. ARMANDO MONTER JACINTO, Defendant and Respondent.
No. S164011
Supreme Court of California
May 27, 2010.
49 Cal. 4th 263
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Donald E. de Nicola, Deputy State Solicitor General, Laurence K. Sullivan, Stan Helfman and Amy Haddix, Deputy Attorneys General, for Plaintiff and Appellant.
Stephanie Clark, under appointment by the Supreme Court, for Defendant and Respondent.
OPINION
WERDEGAR, J.—In the circumstances of this case, did the deportation of the sole witness favorable to the defense violate defendant‘s federal аnd state constitutional rights to the compulsory attendance of witnesses in his favor? Reversing the trial court, the Court of Appeal held it did not. We affirm.
FACTS1
On May 12, 2006, Eric Garcia and victim Victor Retana went to a restaurant in Santa Rosa and put $10 into the jukebox. When a technical problem caused the music suddenly to stop playing, they asked the restaurant owner for a refund. At the time, defendant Armando Monter Jacinto and an unidentified woman were also present in the restaurant, and defendant was talking to the restaurant‘s owner. Appаrently unhappy with Garcia and Retana‘s music selections, defendant advised the owner against providing a refund, but he nevertheless refunded the money. As Garcia and Retana prepared to leave, an altercation began. Garcia testified he had already exited the restaurant‘s front door when he turned to look back and saw Retana standing just inside the door. Defendant, the restaurant owner, the unidentified
Detective Carlos Basurto of the Sonoma County Sheriff‘s Department interviewed Retana in the hospital a week after the crime. According to Dеtective Basurto, Retana reported that it was Garcia, not he, who became embroiled in an altercation with the people in the restaurant. Retana stated that during the melee people were pushing and shoving and some punches were thrown. He went to assist his friend Garcia and pulled defendant away from the crowd, whereupon defendant drew some sort of blade and stabbed him. Retana told Detective Basurto he was sure the woman had not stabbed him. Police arrested defendant and charged him with attеmpted murder and assault with a deadly weapon.
Before trial, the defense employed Carlos Escobedo to investigate the case. Defendant‘s family contacted Escobedo and urged him to interview someone named Nicolas Esparza,2 who claimed to be a percipient witness to the stabbing. Escobedo located Esparza in county jail, where he was being held on an unrelated domestic violence charge, and interviewed him on July 19, 2006. During this interview, Esparza told Escobedo he worked in a lunch truck sponsored by the restaurant. At the time of the stabbing, Esparza said he was outside the restaurant, cleaning the truck. He said he saw the entire altercation and saw the woman in the group take something out of her purse and “hit[] [Retana] with a blade.” Esparza reported seeing blood spurt from the victim‘s body. When asked to describe the knife, Esparza said he did not “exactly” see the blade, but later agreed when Escobedo asked if he “saw her put the blade in the [victim‘s] abdomen.” Esparza said he was not drunk at the time (having just finished his day‘s work) and was 99 percent sure the woman did the stabbing. According to Escobedo, Esparza told him that although he might get into trouble by revealing what he saw, “he thought it was unfair [that defendant] was in jail for something he didn‘t do.” On October 6, Escobedo returned to the jail and served the sheriff with a subpoena for Esparza.
On October 16, Escobedo again returned to the jail, this time to serve Esparza personally with a subpoena and to reinterview him. Before the
Esparza was in fact released to federal authorities аnd deported on October 18, 2006. As a consequence, defendant moved to dismiss the charges, claiming that Esparza‘s deportation violated his constitutional rights under the federal due process and compulsory process clauses. (
DISCUSSION
For those accused by the government of having committed a crime, thе
The right of an accused to compel witnesses to come into court and give evidence in the accused‘s defense is a fundamental one. As the high court has
A criminal defendant‘s rights under the сompulsory process clause can be infringed in several ways. “They include, for example, statements to defense witnesses to the effect that they would be prosecuted for any crimes they reveal or commit in the course of their testimony. [Citations.] They also include statements to defense witnesses warning they would suffer untoward consequences in other cases if they were to testify on behalf of the defense. [Citations.] Finally, they include arresting a defense witness before he or other defense witnesses have given their tеstimony.” (In re Martin, supra, 44 Cal.3d at pp. 30–31.) In this case, defendant contends the prosecution violated his rights under the compulsory process clause when the sheriff released Esparza to federal officials from United States Immigration and Customs Enforcement (ICE), knowing he would most likely be deported and thus unavailable to testify on defendant‘s behalf.
To prevail on a claim of prosecutorial violation of the right to compulsory process, a defendant must establish three elements. ” ‘First, he must demonstrate prosecutorial misconduct, i.e., conduct that wаs “entirely unnecessary to the proper performance of the prosecutor‘s duties and was of such a nature as to transform a defense witness willing to testify into one unwilling to testify.” ’ ” (In re Williams (1994) 7 Cal.4th 572, 603 [29 Cal.Rptr.2d 64, 870 P.2d 1072].) Second, he must establish the prosecutor‘s misconduct was a substantial cause in depriving the defendant of the witness‘s testimony. (Ibid.) The defendant, however, ‘is not required to prove
Applying this test to the facts of this case, we conclude defendant did not satisfy the first element, i.e., prosecutorial misconduct. Preliminarily, we note that although defendant subpoenaed Esparza to appear at trial, the trial was set for a date after Esparza‘s scheduled release from local custody. Accordingly, the sheriff in any event would have had no responsibility for ensuring Esparza‘s appearance at trial. But even if we assume, as is apparently the case, that county jail officials released Esparza to federal immigration authorities immediately upon the expiration of his jail term, thereby rendering him unavailable to testify at trial, defendant fails to show prosecutorial misconduct, i.e., that the prosecutor acted in a manner ” ‘entirely unnecessary to the proper рerformance of [his] duties’ ” and thereby prevented Esparza from testifying on defendant‘s behalf. (In re Williams, supra, 7 Cal.4th at p. 603; accord, People v. Mincey (1992) 2 Cal.4th 408, 460 [6 Cal.Rptr.2d 822, 827 P.2d 388].) Because it was the sheriff, not the prosecutor, who released Esparza to immigration officials, to satisfy this element defendant must show the jail officials were part of the prosecution team (or otherwise acted at the prosecution‘s behest). This he did not do.
As in other counties, the Sonoma County Sheriff has legal authority to run the county jail and acts as the custodian of the prisoners and detainees therein. (
Our decision is consistent with United States v. Valenzuela-Bernal, supra, 458 U.S. 858, cited by both parties. In that case, the defendant, an alien present in the сountry illegally, was driving a car with five other men, all of whom had crossed the border illegally. At a checkpoint near Temecula, border patrol agents noticed the five passengers lying down in the car and motioned for the defendant to stop. He instead sped through the checkpoint and engaged agents in a high-speed chase before stopping the car and attempting to flee on foot. The defendant and three of the five passengers were captured, whereupon the defendant admitted he was in thе country illegally and was transporting the other men in order to assist human smugglers. The three passengers confirmed this story and admitted their undocumented status. All three identified the defendant as the driver of the car.
After determining the three passengers possessed no additional material evidence related to the charge against the defendant (i.e., transporting illegal aliens), the Assistant United States Attorney arranged for the deportation of two of the three, detaining the third to permit him to testify for the prosecution at the defendant‘s criminal trial. The defendant subsequently moved to dismiss the indictment on the ground that “the Government‘s deportation of the two passengers... violated... his Sixth Amendment right to compulsory process for obtaining favorable witnesses.” (Valenzuela-Bernal, supra, 458 U.S. at p. 861.) The high court disagreed. The court explained that the compulsory process clause “does not by its terms grant to a criminal defendant the right to secure the attendance and testimony of any and all witnesses; it guarantees him ‘compulsory process for obtaining witnesses in his favor.’ ” (Id. at p. 867.) The court observed that in Washington v. Texas, supra, 388 U.S. 14, the seminal decision on the mеaning of the compulsory process clause, the State of Texas had violated the defendant‘s compulsory process rights because he had been deprived of ” ‘relevant and material’ ” testimony ” ‘vital’ ” to his defense. (Valenzuela-Bernal, at p. 867, italics omitted.) From this, the Valenzuela-Bernal court concluded a defendant
[racial discrimination by a private restaurant that leased space from a state agency constitutes state action].) The sheriff‘s department is clearly a governmental agency and acts with state action. (See Lugar v. Edmondson Oil Co. (1982) 457 U.S. 922 [73 L.Ed.2d 482, 102 S.Ct. 2744] [execution of a writ of attachment by the county sheriff constitutes stаte action].) The pertinent question here is not whether state action exists, but whether the sheriff‘s actions are attributable to the prosecution.
Here, of course, defendant was deprived of the testimony of the sole witness in his defense, one whose testimony, if believed, would have fully еxonerated him. Seeking to distinguish Valenzuela-Bernal, the People note the prosecutor in that case was directly responsible for the witnesses’ removal from the country, whereas in this case no evidence shows the prosecutor played any part in Esparza‘s deportation. Instead, deputy sheriffs working in the jail acted on their own in cooperating with ICE. For the reasons previously discussed, we agree.
Moreover, even were the jail personnel to be characterized as members of the prosecution team, defendant would face an additional obstacle to establishing his claim of prosecutorial misconduct: no misconduct occurred in connection with Esparza‘s deportation because the sheriff properly acquiesced to ICE‘s request for Esparza, as represented by the issuance of the federal immigration detainer. That Esparza was present in the country in violation of immigration laws is undisputed. The prosecutor, arguing in opposition to the motion to dismiss before the trial court, assumed ICE had issued a federal immigrаtion detainer seeking Esparza‘s custody once his misdemeanor term in county jail expired.4 Although the prosecution presented no direct evidence of the detainer, one in fact existed and the Court of Appeal took judicial notice of it.5
The federal government‘s power over immigration issues is supreme. (See generally De Canas v. Bica (1976) 424 U.S. 351, 354 [47 L.Ed.2d 43,
Defendant, we observe, was not powerless to ensure that Esparza would appear at his trial. Indeed, the law requires him to take an active role in ensuring the presence of his witnesses. As the United States Supreme Court has observed: “There is a significant difference betwеen the Compulsory Process Clause weapon and other rights that are protected by the Sixth Amendment—its availability is dependent entirely on the defendant‘s initiative. Most other Sixth Amendment rights arise automatically on the initiation of the adversary process and no action by the defendant is necessary to make them active in his or her case. While those rights shield the defendant from potential prosecutorial abuses, the right to compel the presence and present the testimony of witnesses provides the defendant with a sword that may be employed to rebut the prosecution‘s case. The decision whether to employ it in a particular case rests solely with the defendant. The very nature of the right requires that its effective use be preceded by deliberate planning and affirmative conduct.” (Taylor v. Illinois (1988) 484 U.S. 400, 410 [98 L.Ed.2d 798, 108 S.Ct. 646], italics added, fn. omitted.)
Thus, in addition to serving a subpoena on Esparza, other procedures were potentially available to defendant to ensure Esparza‘s testimony at trial. For example, if a witness is in jail,
Defendant also could have approached ICE and invoked
In short, defendant was not without legal tools to ensure that Esparza was available to testify on his behalf.
CONCLUSION
The decision of the Court of Appeal reversing the trial court is affirmed.
George, C. J., Baxter, J., Chin, J., and Corrigan, J., concurred.
KENNARD, J., Concurring.—Defendant subpoenaed a witness to testify at his upcoming criminal trial. At the time, the witness was in the custody of the
As the majority points out, to establish a violation of the right to compel the attendance of witnesses a defendant must show, among other things, misconduct by the prosecution. (People v. Lucas, supra, 12 Cal.4th at p. 457.) The prosecution team comprises not only the prosecutor but also “others acting on the government‘s behalf in the case, including the police.” (Kyles v. Whitley (1995) 514 U.S. 419, 437 [131 L.Ed.2d 490, 115 S.Ct. 1555].) Here, defendant has not established prosecutorial misconduct because the federal immigration detainer required the Sonoma County Sheriff to deliver the witness to the custody of federal officials; defendant has failed to establish prosecutorial involvement in the deportation of the witness. (Maj. opn., ante, at pp. 270, 272–273.) This conclusion is sufficient to resolve this issue.
But the majority also holds that even though the Sonoma County Sheriff‘s Department investigated the crime with which defendant was charged, thе sheriff‘s deputies operating the jail cannot be considered members of the prosecution team, and therefore any misconduct by those deputies cannot be attributed to the prosecution. (Maj. opn., ante, at pp. 270–271.)
This is a difficult issue that, in light of the majority‘s correct conclusion pertaining to the federal immigration detainer, need not be addressed in this case. Whether the prosecution team includes the investigating law enforcement agency itself or only some of its personnel and, if so, which personnel under what circumstances, are substantial questions as shown by language in a couple of our cases suggesting that the agency itself is part of the prosecution team (see People v. Zambrano (2007) 41 Cal.4th 1082, 1133 [63 Cal.Rptr.3d 297, 163 P.3d 4]; In re Steele (2004) 32 Cal.4th 682, 696–697 [10 Cal.Rptr.3d 536, 85 P.3d 444]) and language in an earlier decision suggesting that only the agency‘s investigators are part of the prosecution team (In re Brown (1998) 17 Cal.4th 873, 879 [72 Cal.Rptr.2d 698, 952 P.2d 715]).
Moreno, J., concurred.