People v. Aguilera

• Decision Date: 17 June 2020
• Docket Number: D075381
• Citation: 50 Cal.App.5th 894,264 Cal.Rptr.3d 437
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Mario Ivan AGUILERA et al., Defendants and Respondents.

50 Cal.App.5th 894

264 Cal.Rptr.3d 437

The PEOPLE, Plaintiff and Appellant,

v.Mario Ivan AGUILERA et al., Defendants and Respondents.

D075381

Court of Appeal, Fourth District, Division 1, California.

Filed June 17, 2020

Summer Stephan, District Attorney, Mark A. Amador, Linh Lam, and Karl Husoe, Deputy District Attorneys, for Plaintiff and Appellant.

Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Respondent Mario Aguilera.

Elisa A. Brandes, El Canjon, under appointment by the Court of Appeal, for Defendant and Respondent Jesus Castaneda.

Christine M. Aros, Los Angeles, under appointment by the Court of Appeal, for Defendant and Respondent Ricardo Eaton.

Cathryn L. Rosciam, under appointment by the Court of Appeal, for Defendant and Respondent Daniel Gracia.

Alex Coolman, San Francisco, under appointment by the Court of Appeal, for Defendant and Respondent William Sherman.

John F. Schuck, Los Altos, under appointment by the Court of Appeal, for Defendant and Respondent Jose Villanueva.

GUERRERO, J.

The People, represented by the San Diego County District Attorney, appeal an order dismissing all criminal charges against defendants Mario Aguilera, Jesus Castaneda, Ricardo Eaton, Daniel Gracia, William Sherman, and Jose Villanueva.

Defendants were charged with multiple felonies, including robbery ( Pen. Code, § 211 ) and carjacking (id. , § 215), arising from an aborted illegal drug transaction. The trial court found that defendants' constitutional right to due process was violated because the federal government refused defendants' requests to produce potentially exculpatory evidence in the possession of the U.S. Drug Enforcement Agency (DEA). We conclude that neither due process nor any other constitutional provision requires dismissal of the charges against defendants under the circumstances here. We therefore reverse the dismissal order.

FACTUAL AND PROCEDURAL BACKGROUND

The Alleged Offenses

For purposes of this section, we take the historical facts from the transcript of the preliminary hearing in this matter. At that hearing, the court heard testimony from the primary victim E.G., his son, and a police detective.

E.G. owned and operated a used car lot in National City, California. He was also involved in the cross-border drug trade between Mexico and the United States. Sometime in 2017, E.G. was threatened with federal prosecution, and he agreed to become an informant for the DEA. At the time, E.G. was involved with Aguilera in an effort to smuggle 200 kilograms of marijuana from Mexico into the United States. A person, whom E.G. did not know, provided the marijuana, and E.G. arranged to store the marijuana in Tijuana.

Once E.G. became an informant, the DEA told him to step away from the deal. They wanted him to focus on other, more consequential transactions. The marijuana was never transported into the United States. It remained in Tijuana and eventually went bad. Aguilera subsequently contacted E.G. and told him the person who provided the marijuana wanted to be paid for the loss. E.G. gave Aguilera a few used vehicles, which he thought would compensate the person.

Later, on January 8, 2018, E.G. received a call from an unknown man, who said he was interested in purchasing a used car E.G. had advertised online. E.G. invited the man to go to the used car lot, where one of E.G.'s employees would show him the car. An hour later, the man called again and confirmed he wanted to purchase the car. E.G. drove to the lot to complete this sale. He brought along his young son.

When E.G. arrived at the lot, his employee told him that the man was out getting some food and would be back soon. Several minutes later, the man returned with another person. E.G. later identified them as Gracia and Eaton, respectively. After E.G. spoke with Gracia briefly, two SUVs drove onto the lot. Six individuals exited the SUVs: Aguilera, Castaneda, Sherman, Villanueva, a man identified as "Sergio," and an unidentified man. E.G. had employed Villanueva and Sergio at the car lot, and he knew Sherman as Villanueva's friend. (E.G. had stopped working with Villanueva several weeks earlier because he believed Villanueva had sold two trucks without permission and kept the money.) E.G. knew Aguilera, as discussed above, and they had been legitimate business associates as well for many years. E.G. was unfamiliar with Castaneda.

Gracia and Eaton grabbed E.G. from the back, and Eaton took E.G.'s cell phone. Either Eaton or Gracia had a gun. The other men approached quickly. Either Villanueva or Sherman, or both, held a large knife.

Aguilera introduced Castaneda as the person who had provided the marijuana that had languished in storage in Tijuana.

Castaneda demanded money. He threatened to kidnap E.G. and take him to Mexico. But, when Castaneda saw E.G.'s son, he said, "You're in luck. Because your kid is here, we're not going to take you, but I want money."¹

E.G. told Castaneda he did not have money, but Castaneda could take whatever he wanted from the lot. Castaneda said they would take the vehicles, but he still wanted the money in a couple weeks. The men drove some vehicles away, enlisted a tow truck to haul away some more, and retrieved others from auction lots. They eventually took several cars, SUVs, and vans, as well as at least one boat.

E.G. and his son left the lot in another used car. In the evening, E.G. called his DEA handler, Shawn Gaines. E.G. had been scheduled to meet with him that day. E.G. and Gaines agreed to meet the following day, along with another DEA agent, Mario Borboa. E.G. testified that he did not call the police because he wanted to talk to Gaines first.

The next day, E.G. met with Gaines and Borboa, as well as two other DEA agents. They spoke for approximately an hour or two. E.G. gave them a full report of the incident, including the names and descriptions of the people involved. At least one of the agents took notes of the conversation. E.G. did not know whether the conversation was recorded.

A few days later, Borboa arranged for E.G. to meet with a National City police detective. Borboa was acquainted with the detective because they had served together on the same task force. E.G. met with the detective and, according to him, provided the detective the same information he gave Gaines and Borboa. The detective interviewed E.G.'s son and his employee as well.

At the preliminary hearing, E.G. testified that his work as an informant involved setting up drug transactions with individuals specified by the DEA. E.G. made money on the transactions, but he was not paid by the DEA itself and did not receive any other benefits (except avoiding prosecution). He had a contract with the DEA, which he was required to sign every three or four months. But by the time of the hearing, E.G. had let his contract expire.

Proceedings on the Initial Charges and First Dismissal

The district attorney charged defendants with robbery, carjacking, and other offenses. ( People v. Eaton (Super. Ct. San Diego County, 2018, No. SCS298500); People v. Castaneda (Super. Ct. San Diego County, 2018, No. CS302785).) In advance of trial, the prosecutor contacted Borboa and requested a summary of benefits E.G. had received from the DEA. The prosecutor told Borboa that the information was relevant to E.G.'s credibility and the prosecutor was required to disclose it to comply with his Brady obligations. ( Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 ( Brady ).) A DEA attorney responded by email and declined to provide the information. He advised the prosecutor that, under United States ex rel. Touhy v. Ragen (1951) 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 ( Touhy ), he would have to comply with federal regulations to make a proper request. (See 28 C.F.R. § 16.21 et seq. ) The attorney wrote that defense counsel was also free to submit a request.²

Separately, Sherman served two subpoenas on Borboa seeking testimony and various categories of documents relating to E.G.'s relationship with the DEA, the alleged offenses, and E.G.'s credibility generally. The DEA attorney responded that Sherman's request for information from the DEA would likewise have to comply with federal regulations under Touhy. Among other things, Sherman was required to submit an affidavit describing the relevance of the information sought. (See 28 C.F.R. § 16.22(c).) The DEA attorney stated that the U.S. Attorney's Office would review any proper request and authorize appropriate disclosures when warranted. He wrote, "If a party is dissatisfied with the government's response to a Touhy request, the party's remedy is an action against the relevant agency pursuant to the Administrative Procedures Act, and not pursuant to a motion to compel."

Sherman's counsel provided the requested affidavit. He described the alleged offenses, E.G.'s relationship to the DEA, and the fact that E.G. first reported the incident to the DEA.

Three weeks later, an Assistant U.S. Attorney informed Sherman's counsel by letter that the U.S. Department of Justice, of which the DEA is a part, would not authorize Borboa to testify and would not produce records in response to the subpoenas. The attorney wrote that "the records and testimony you are seeking implicate the existence or nonexistence of law enforcement investigations, and the existence or nonexistence of confidential source relationships. Furthermore, your request seeks information the disclosure of which would reveal investigatory techniques and procedures the disclosure of which would jeopardize their effectiveness. Accordingly, under 28 C.F.R. § 16.26(b)(4)-(5), disclosure will not be authorized." The attorney noted that Borboa's work is funded by taxpayers and "testifying in this state court criminal litigation would not be the best use of the [DEA's] limited resources." The attorney informed Sherman's counsel that a state court subpoena cannot be enforced against a federal employee, and any attempt at enforcement...