The People v. Herrera

• Decision Date: 01 July 2010
• Docket Number: No. S171895.,S171895.
• Citation: 232 P.3d 710,49 Cal.4th 613,110 Cal.Rptr.3d 729
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent,v.Honorio Moreno HERRERA, Defendant and Appellant.

49 Cal.4th 613

232 P.3d 710

110 Cal.Rptr.3d 729

The PEOPLE, Plaintiff and Respondent,v.Honorio Moreno HERRERA, Defendant and Appellant.

No. S171895.

Supreme Court of California

July 1, 2010.

COPYRIGHT MATERIAL OMITTED

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Waldemar D. Halka, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lynne G. McGinnis, Steven Oetting and Kelley A. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

Defendant Honorio Moreno Herrera was a member of the criminal street gang known as “Krazy Proud Criminals” or “KPC.” In June 2005, he and two fellow KPC members drove into the territory of a rival gang called “ Logan,” and shot and killed Erick Peralta. In June 2006, Jose Portillo testified at a preliminary hearing that defendant confessed to the shooting. Defendant was then charged by information with one count of first degree murder, with a criminal street gang special circumstance and two gang-related enhancements. He was also charged with one count of street terrorism.

By the time defendant's case was ready for trial in May 2007, Portillo could not be found. The prosecution filed a pretrial motion to admit Portillo's preliminary hearing testimony, contending he was unavailable as a witness. After hearing evidence that Portillo had been deported to El Salvador in September 2006, and that El Salvador and the United States had no treaty providing for his extradition to this country to testify as a witness, the trial court ruled Portillo unavailable and allowed his testimony to be read to the jury. The Court of Appeal reversed, concluding the prosecution had failed to establish Portillo's unavailability as required by the confrontation clauses of the federal and state Constitutions and the Evidence Code. (U.S. Const., 6th Amend.; Cal. Const., art. 1, § 15; Evid.Code, §§ 1290, 1291, 240, subds. (a)(4), (5).)

Consistent with decisions of the United States Supreme Court and our state courts, we hold that the prosecution's showing of Portillo's unavailability, which was based on undisputed testimony, satisfied constitutional and state law requirements. Accordingly, we reverse the judgment of the Court of Appeal, and remand the matter to that court for further proceedings consistent with our opinion.

Factual and Procedural Background

About 10:30 p.m. on June 19, 2005, Erick Peralta and his cousin Efren Enriquez were walking on Spurgeon Street in Santa Ana toward a convenience store. According to Enriquez, a blue four-door car with three people passed them and stopped. A man exited the car and asked where they were from. Enriquez put his hand up and said, “What's up?” as he and Peralta kept walking. A second man with a gun got out of the car and fired at them once. Peralta was shot in the head and killed. The two men got back in the car, someone yelled out “KPC,” and the car drove off.

Santa Ana Police Detective Richard Ashby interviewed Enriquez shortly after the shooting. Enriquez was shown photographs of active KPC gang members, but he did not identify anyone as the suspects.

Three months later, on September 17, 2005, Jose Portillo, a former KPC member, was driving a car with defendant as one of the passengers. Portillo sped away when he saw the police. The police gave chase, and Portillo was arrested for felony evading. Defendant was arrested for attempting to flee from Portillo's car.

On September 19, 2005, Portillo told Detective Ashby that defendant had bragged to him about shooting a person who identified himself as a Logan gang member. Defendant had said two people, a guy from “Clown Town” and another “youngster” he did not identify, were with him at the time of the shooting. Portillo also described the car used in the shooting as a dark-purple Chevy Beretta. Portillo had previously seen defendant driving this car and had seen him with Luis Estudillo and Paul Del La Cruz, additional suspects in the case.

On or about November 19, 2005, defendant had a two-hour interview with Detective Ashby after waiving his right to an attorney and right to remain silent. Defendant initially denied knowledge of the shooting, but then admitted witnessing it. He named “Striker,” an Anaheim “Clown Town” gang member, as the driver involved in the crime, but refused to name the shooter.

Several months later, on June 19, 2006, Portillo testified at defendant's preliminary hearing. According to Portillo, defendant told Portillo in June of 2005 that defendant was the shooter who killed Peralta. Defendant was bound over for trial and charged by information with one count of first degree murder (Pen.Code, § 187, subd. (a)), with a criminal street gang special circumstance ( id., subd. (a)(22)), a gang-benefit enhancement ( id., § 186.22, subd. (b)), and an enhancement for gang-member vicarious discharge of a firearm causing death ( id., § 12022.53, subds. (d), (e)(1)). Defendant was also charged with one count of street terrorism. ( id., § 186.22, subd. (a).)

Trial was scheduled for March 7, 2007, but it was continued two months to May 21 because neither side was ready for trial. On and after May 21, 2007, the trial was trailed three times to May 30.

On May 30, 2007, the prosecution filed a motion to admit Portillo's preliminary hearing testimony. Claiming that Portillo was unavailable to testify at trial, the prosecution requested a hearing on the issue of due diligence. According to the motion, Portillo had been in custody on an unrelated matter at the time of defendant's June 19, 2006, preliminary hearing, and he agreed to provide truthful testimony in exchange for a more lenient sentence. After testifying at the preliminary hearing, Portillo entered a plea in the unrelated matter and was sentenced. Records maintained by the United States Department of Homeland Security indicated that Portillo was later flown to El Salvador, his country of origin, and released.

That same day, May 30, 2007, the trial court held an evidentiary hearing on the prosecution's motion. Investigator Ed Wood of the Orange County District Attorney's Office testified regarding his efforts to secure Portillo's presence for trial and his communications with the Department of Homeland Security concerning Portillo's whereabouts. Wood said he began looking for Portillo the Friday before, on May 25. He started by running Portillo's name through the law enforcement database and discovered two outstanding “no bail” warrants for his arrest.¹ Wood then contacted Detective Ashby and asked him to make out “a BOLO or a wanted flyer” for Portillo. The wanted flyer, which was disseminated at least regionally to all law enforcement, resulted in no helpful information. That afternoon (May 25), Wood went to Portillo's last known residence at an apartment unit in Santa Ana. A woman lived in the unit with her father and daughter, but she did not recognize Portillo when shown his photograph.

Wood also obtained a “Local Arrest Record” printout listing two telephone numbers for Portillo's family members or friends, but he ascertained those numbers had been disconnected or changed. Wood additionally asked Detective Ashby to try contacting Portillo's friends and family, in case Ashby had information in the database that was not accessible to Wood.

Around 3:00 or 3:30 p.m. that same Friday, Wood contacted special agent Mark Johnston of the United States Department of Homeland Security. When asked if Portillo had been deported, Johnston checked and confirmed he had been deported to El Salvador, his country of origin. The deportation had occurred more than eight months earlier, on September 11, 2006. Wood determined that Portillo was released from custody from the Orange County jail on June 24, 2006, and assumed that he “went into” custody of federal immigration authorities around that time.

At 8:30 a.m. on Tuesday, May 29, 2007, Wood spoke with Art Zorilla, an investigator in the foreign prosecution unit of the Orange County District Attorney's Office. At Wood's request, Zorilla contacted INTERPOL, the agency in El Salvador that would search a database for Portillo and send officers out. As of 1:00 p.m. on Wednesday, May 30, Wood had heard nothing from El Salvador about Portillo. Zorilla, however, informed Wood that even if Portillo could be located in El Salvador, that country had no treaty with the United States and would not extradite him.²

After Wood concluded his testimony, the prosecution reminded the court that Portillo “entered into an agreement” before testifying at the preliminary hearing. The prosecution offered to stipulate that agreement into evidence, as well as any moral turpitude prior conviction that would have been available to the defense for impeachment purposes had Portillo been present to testify. Finding the prosecution acted with “due diligence” in attempting to secure Portillo's presence, the trial court permitted the use of his preliminary hearing testimony at trial.

A jury convicted defendant of the charged crimes and found true the alleged enhancements and the gang special circumstance allegation. He was sentenced to life in prison without the possibility of parole.

A divided Court of Appeal reversed the judgment, concluding that admission of Portillo's preliminary hearing testimony at trial was reversible error.

Discussion

The central issue is whether admission of Portillo's preliminary hearing testimony was erroneous or in violation of defendant's constitutional right of confrontation.

A criminal defendant has the right, guaranteed by the confrontation clauses of both the federal and state Constitutions, to confront the prosecution's witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. 1, § 15.) The right of confrontation “seeks ‘to ensure that the defendant is able to conduct a “personal examination and cross-examination of the witness, in which [the defendant...