Wednesday, May 6, 2020
Court of Appeal:
Preliminary Hearing Testimony of Witness, Who Was Deported Before Trial, Held Improperly Admitted;
Majority Says Prosecution Should Have Given Written Notice to Defense of His Potential Unavailability
By a MetNews Staff Writer
Div. Eight of the Court of Appeal for this district has held, in a 2-1 decision, that if the prosecution knows that one of its witnesses at the preliminary hearing might not be available at trial, it must alert the defense, in writing, to that fact, and take other steps to avoid the defendant being deprived of the right of confrontation.
Justice John Sheppard Wiley wrote the majority opinion in which Justice Maria Stratton joined. He portrayed the opinion as one that simply applies the 2012 holding by the Fourth District’s Div. Three in People v. Roldan that preliminary hearing testimony by the key witness (who was also the victim) should not have been introduced at trial because the prosecution did not do enough to try to delay the man’s deportation or otherwise preserve the defendant’s rights.
Wiley explained in the seminal sentence of his opinion, filed Monday:
“We publish this opinion hoping management in prosecutorial offices will forestall more mishaps of this sort.”
Dissenting from the reversal, Presiding Justice Tricia Bigelow insisted that Wiley’s opinion “significantly expands” the holding in Roldan, as well the state Supreme Court’s opinion on which it was founded: People v. Louis, decided in 1986. Bigelow complained that “the majority finds—for the first time—that a prosecutor must give advance written notice, on the record, of a witness’s potential unavailability.”
Wiley set forth that “[t]he prosecutor agreed the defense never got notice ‘of possible deportation or [federal] custody’ ” but later acknowledged that oral notice was provided at the preliminary hearing of that prospect, which the justice discounted as inadequate.
The opinions come in the case of Albert Torres, convicted by a jury of attempted murder and assault with a deadly weapon in connection with the March 29, 2016 stabbing of his fellow gang member Ramon Quinones. At trial, Quinones was the only live prosecution percipient witness although a transcript of preliminary hearing testimony by another member of their gang, Alex Hernandez, was admitted.
Hernandez had been deported to Guatemala prior to the trial.
At the preliminary hearing, Hernandez did not testify to having actually seen Torres stab Quinones; he did say, however, that he saw the two, as Wiley put it, “face off for a fight in an alley,” with Quinones then running off. The opinion recounts that Quinones was bleeding; Hernandez took him to a hospital; he told Hernandez that Torres stabbed him.
Quinones testified at trial that he was under the influence of methamphetamine during his preliminary hearing appearance. He provided confused and see-sawing testimony at trial in the course of which he indicated, variously, that he did not know whether it was Torres or Hernandez who stabbed him, or that Hernandez was the assailant.
Wiley declared that Los Angeles Superior Court Judge James D. Otto erred in admitting the preliminary hearing testimony; Bigelow countered that “substantial evidence supports the trial court’s factual findings” that the Office of Los Angeles County District Attorney did all that was legally required of it.
Wiley wrote that the opinion in Roldan—authored by Justice William W. Bedsworth—“held that, before invoking the former testimony exception” to the rule barring hearsay testimony, “prosecutors should react appropriately to the impending deportation risk.” He said:
“Roldan counseled four logical steps: alert the defense to the risk; videotape the preliminary hearing testimony; use judicial measures to try to delay deportation; and consider an array of other specific measures….
“At oral argument in this case, the prosecution conceded prosecutors were simply unaware of Roldan. They did not comply with it. At trial, the court admitted the witness’s former testimony. Applying Roldan, we reverse.”
He recited that the deputy district attorney in Torres’s case told Otto:
“I’m not aware of a case stating that the People have some sort of obligation to interfere with the purview of the federal government as it relates to deportation proceedings to stop or halt the deportation of a convicted felon... I’m not aware of a law that it’s the People’s responsibility to put on the record that a person may be deported….”
“Roldan was a case of the sort the prosecutor said ‘I’m not aware of....’ The prosecutor made this statement in 2017. The court decided Roldan in 2012.”
“This case is like Roldan,” Wiley commented. “In both instances, prosecutorial efforts fell short of due diligence.”
“The prosecutors in both cases searched for the deported witness after deportation. But the requirement of due diligence includes the duty to make reasonable efforts before deportation when, as here, the prosecution knows there is a risk of deportation. The prosecution cannot establish due diligence if it fails in its pre-deportation duty….
“In this case, the prosecution effectively did nothing to comply with Roldan. The prosecutors did not satisfy Roldan by mentioning, off the record, they were ‘unsure of Mr. Hernandez’s future availability due to his current immigration status at that time.’ As the prosecution conceded at oral argument on appeal, ‘probably a lot of people are illegal’ but are not actively in deportation proceedings.”
In Roldan, the prosecution made a slight effort to work with immigration officials to delay the witness’s deportation, Wiley said, while prosecutors in Torres’s case made no such attempt.
Error Wasn’t Harmless
The jurist went on to say that the error cannot be viewed as harmless, setting forth:
“If we subtract Hernandez’s hearsay testimony from the trial evidence, this leaves only one testifying eyewitness to the stabbing: victim Quinones. The prosecution described Quinones’s trial performance as ‘a bunch of crazy stuff.’ We already have recounted Quinones’s uncontradicted vacillation and uncontradicted drug use. We agree with the prosecution’s description. Quinones was too crazy a witness to be the sole foundation for a conviction for attempted murder.
“Fear of gang retribution is the probable reason Quinones recanted his early statements identifying Torres as the stabber. Recantations are common in gang and domestic violence cases. But between the methamphetamine and his continuously evolving contradictions, Quinones proved himself an impressively unreliable witness. Without Hernandez, the confluence of facts at trial did not establish Torres’s guilt for these crimes beyond a reasonable doubt.
“In one brief paragraph, the prosecution’s brief to us makes a halfhearted effort to marshal proof of guilt. But this cursory showing is not proof beyond a reasonable doubt.”
Bigelow concurred with the majority’s view that sentencing enhancements were improperly imposed, but otherwise dissented.
She began by observing:
“When first arrested, Torres said ‘May I ask you a question?.... If the victim did not want to be a victim would [I] be let go?’ He asked police the same question two more times. As it turned out, this case played out just as Torres wanted, as it does in many gang cases that go to trial: the victim recanted his original statements to police and his preliminary hearing testimony identifying Torres as his lone attacker, owing to his fear of gang retaliation. The jury saw through the scheme and convicted. Unfortunately, the majority does not. Instead, it answers Torres’s repeated question with an unequivocal yes. I would not.”
The presiding justice pointed to the 2010 California Supreme Court decision in People v. Herrera, which was relied upon by Otto. There, a key witness, one Jose Portillo, had testified at a preliminary hearing and, before trial, was deported to El Salvador.
Then-Justice Marvin Baxter (now retired) wrote:
“There was no dispute that attempts to locate Portillo in El Salvador proved unsuccessful. Likewise, there was no dispute that even if Portillo could be found there, the United States and El Salvador had no agreement or treaty providing for an alternative means to compel or facilitate his attendance at defendant‘s trial. We therefore conclude, consistent with the United States Supreme Court and California decisions discussed above, that the prosecution fulfilled its obligation of good faith and due diligence under the circumstances, that Portillo was unavailable as a witness, and that therefore admission of his preliminary hearing testimony at trial was proper.”
Bigelow quoted Otto as saying:
“I’ve carefully considered everything that’s been argued, reviewed the case, ...People v. Herrera.
“There appears to be no dispute that there was no type of extradition cooperation treaty between Guatemala and the United States in effect. There’s not one now, based on the citation and the undisputed statement by counsel.
“Considering all the obligations, I find the prosecution has fulfilled his obligations of good faith and due diligence, under the circumstances, the totality of the circumstances to get Mr. Hernandez here and that they have done that adequately so that I find that he is now unavailable under Evidence Code section 240 and his preliminary hearing testimony can be used in this case.”
“[A]lthough ultimately fruitless, there is no question the prosecution made reasonable efforts to try to locate Hernandez and secure his appearance at trial after learning he had been deported to Guatemala. I would therefore conclude the prosecution fulfilled its state and federal duties of good faith and due diligence, Hernandez was an unavailable witness, and admission of his preliminary hearing transcript was proper.”
Bigelow maintained that Roldan and Louis “make evident there are two prerequisites to eschewing the ordinary rule that the state is not required ‘to keep periodic tabs’ on every material witness or undertake means to prevent a present witness from becoming absent.”
She said those prerequisites are:
“First, the witness must be ‘vital’ or ‘critical’ to the prosecution’s case….
“Second, the prosecution must know there is a ‘substantial risk’ the witness will become unavailable.”
She offered this analysis:
“Here, the majority expands both factors well beyond Louis and Roldan….[I]ts decision will require the prosecution to keep tabs on all material witnesses, not just those that are ‘critical’ or ‘vital.’ It will also require the prosecution to expend significant resources to monitor witnesses whose future availability is ‘uncertain’ due to their immigration status, not just those it knows to be facing certain deportation. Further, it must give written notice to the defense when there is a possibility a witness may become unavailable.”
Not Critical Witness
Hernandez was not the sole witness, Bigelow pointed out, given that Quinones was “alive and well” and expected, from his preliminary hearing testimony, to name Torres as his sole attacker. She also noted that Torres’s prosecutor, unlike Roldan’s, did not know at the time of the preliminary hearing that deportation of the witness was a certainty.
The prosecutor did mention at the preliminary hearing that there was the prospect of Hernandez being deported, she recited, adding:
“As a result, unlike in Roldan, defense counsel had a meaningful opportunity to cross-examine Hernandez more thoroughly at the preliminary hearing or to recess and arrange to memorialize his testimony on videotape. To the extent defense counsel did not take advantage of those options, I cannot fault the prosecution, which did what was required of it.”
Bigelow said in a footnote:
“The majority faults the Attorney General for making “a halfhearted effort to marshal proof of guilt” and insinuates he did not make a long analysis of harmless error because Quinones recanted. I would not speculate at the reason behind the length of an argument in a respondent’s brief. A short argument can equally be attributed to overconfidence, a demanding workload, or a myriad of other reasons.”
The case is People v. Torres, 2020 S.O.S. 2215.
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