Metropolitan News-Enterprise


Friday, July 2, 2010


Page 3


High Court Upholds Use of Deportee’s Prior Testimony


By a MetNews Staff Writer


The use of a deportee’s preliminary hearing testimony at the trial of an alleged murderer did not violate the defendant’s right to face his accuser, the state Supreme Court ruled yesterday.

The court reversed a decision of the Fourth District Court of Appeal, which held that Jose Portillo was not “unavailable” as a trial witness because prosecutors were less than diligent in their efforts to produce him.

Justice Marvin Baxter, writing for six members of the court, said there was no violation of defendant Honorio Herrera’s confrontation rights because the prosecution did not know of Portillo’s deportation until months later and had no way of locating the witness or forcing his return to the United States.

Justice Kathryn M. Werdegar concurred in the ruling, agreeing with the Court of Appeal that prosecutors failed to use reasonable diligence, but concluding this was harmless because even a diligent effort would have resulted in the discovery that Portillo was out of the country and could not be forced to testify.

Portillo testified at Herrera’s preliminary hearing that he was a former member of the gang to which Herrera belonged, Krazy Proud Criminals, or KPC, and that the defendant confessed to the murder of Erick Peralta. Other evidence established that Herrera and two other members drove into the territory of the rival Logan gang in Santa Ana, where Peralta was shot.

Herrera told police that he witnessed the shooting, but was not involved.

In May 2007, about 11 months after the preliminary hearing, prosecutors moved to admit Portillo’s preliminary hearing testimony at Herrera’s trial for first degree murder with a street-gang special circumstance.

After hearing evidence that Portillo had been deported to El Salvador eight months earlier, that government contacts with INTERPOL in El Salvador had produced no information about his whereabouts, and that the United States and El Salvador do not have a treaty allowing extradition of witnesses, Orange Superior Court Judge Daniel Didier granted the motion under the former testimony exception to the hearsay rule.

Jurors found Herrera guilty and he was sentenced to life imprisonment without possibility of parole.

Baxter, writing for the high court, said the Court of Appeal—which emphasized that the prosecution had made no efforts to determine Portillo’s whereabouts between the preliminary hearing and just before trial—erred in failing to consider the lack of an extradition treaty as a significant part of the unavailability analysis.

The lower court’s decision was also flawed, the justice said, in characterizing the deportation as a “not unexpected event,” when there was no evidence prosecutors knew Portillo’s immigration status, and in concluding on “pure conjecture” that Portillo might have returned to California after deportation.

“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,” the justice wrote.

Chief Justice Ronald M. George and Justices Joyce L. Kennard, Ming Chin, Carlos Moreno, and Carol Corrigan joined in Baxter’s opinion.

Werdegar, writing separately, said prosecutors failed to meet the “rigorous standard” requiring that they conduct a timely search when they do not know the whereabouts of a witness, particularly one who is important to the case. She noted that prosecutors did not begin to search for Portillo until nearly three months after the original trial date.

“[I]n 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,” the dissenting jurist argued. “But harmless error is not due diligence.”

The case is People v. Herrera, 10 S.O.S. 3689.


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