People v. Herrera
110 Cal. Rptr. 3d 729, 232 P.3d 710, 49 Cal. 4th 613 (2010)
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Rule of Law:
The prosecution satisfies its Sixth Amendment obligation to make a good faith effort to obtain a witness's presence for trial when it demonstrates that the witness has been deported to a foreign country with which the United States has no treaty or other established procedure to compel the witness's attendance, as further efforts would be futile.
Facts:
- In June 2005, Erick Peralta was shot and killed in Santa Ana, in territory claimed by the 'Logan' street gang.
- Honorio Moreno Herrera was a member of the rival 'Krazy Proud Criminals' (KPC) gang.
- In September 2005, Jose Portillo, a former KPC member, told Detective Richard Ashby that Herrera had bragged to him about committing the shooting.
- In November 2005, Herrera admitted to Detective Ashby that he witnessed the shooting but did not identify the shooter.
- In June 2006, Portillo testified at Herrera's preliminary hearing, stating that Herrera had confessed to being the shooter.
- In September 2006, Portillo was deported by federal authorities to his native country of El Salvador.
Procedural Posture:
- Honorio Moreno Herrera was charged by information in a California superior court (trial court) with first-degree murder and street terrorism.
- The prosecution filed a pretrial motion to admit the preliminary hearing testimony of witness Jose Portillo, arguing he was unavailable.
- The trial court held an evidentiary hearing, found the prosecution exercised due diligence, declared Portillo unavailable, and granted the motion.
- A jury convicted Herrera on all counts and found all enhancements true.
- The trial court sentenced Herrera to life in prison without the possibility of parole.
- Herrera appealed to the California Court of Appeal (intermediate appellate court), which reversed the conviction, holding the prosecution had failed to establish Portillo's unavailability.
- The prosecution (the People) petitioned for review by the Supreme Court of California (highest state court), which was granted.
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Issue:
Does the admission of a deported witness's prior preliminary hearing testimony violate a defendant's Sixth Amendment right to confrontation when the prosecution demonstrates the witness is in a foreign country that has no extradition treaty or other mechanism to compel their attendance at trial?
Opinions:
Majority - Baxter, J.
No. The admission of the deported witness's prior preliminary hearing testimony does not violate the defendant's Sixth Amendment right to confrontation. The prosecution fulfilled its obligation of good faith and due diligence by showing the witness was deported to a foreign country with no treaty or established procedures to compel his attendance, rendering further efforts to secure his presence futile. The Confrontation Clause's exception for unavailable witnesses who were previously subject to cross-examination applies when the prosecution has made a good faith effort to procure the witness's attendance. Citing Mancusi v. Stubbs, the court reasoned that when a witness is in a foreign country and the state is powerless to compel attendance through its own process or cooperative international procedures, the witness is constitutionally unavailable. Here, undisputed evidence showed Portillo was deported to El Salvador, a country lacking a relevant treaty to extradite him as a witness. Because any further or earlier efforts would have been futile once this fact was established, the prosecution was not required to do more to satisfy its due diligence obligation.
Concurring - Werdegar, J.
No. The admission of the testimony was proper, but on the grounds of harmless error, not due diligence. The prosecution failed to exercise due diligence by waiting until the last business day before trial to begin its search for a star witness. This belated effort does not meet the standard of 'persevering application' and 'untiring efforts' required for due diligence. However, this lack of diligence was harmless because even a timely search would have revealed the same outcome: Portillo had been deported eight months earlier to a country from which he could not be compelled to return. Because the result would have been the same regardless of the prosecution's diligence, the error in failing to conduct a timely search did not prejudice the defendant.
Analysis:
This decision clarifies the 'due diligence' standard under the Confrontation Clause for witnesses located in foreign countries. It establishes that the futility of an action is a paramount consideration, potentially excusing what might otherwise be seen as a tardy or incomplete search. The ruling effectively lowers the prosecution's burden when a witness is deported to a non-cooperative country, emphasizing the objective reality of the witness's unavailability over the subjective timing of the prosecution's efforts. This precedent makes it easier for prosecutors to use preliminary hearing testimony from key witnesses who have been deported, impacting cases involving non-citizen witnesses.
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