Supreme Court of California Justia
Citation 49 Cal. 4th 263, 231 P.3d 341, 109 Cal. Rptr. 3d 610

People v. Jacinto


Filed 5/27/10

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Appellant,
S164011
v.
Ct.App. 1/5 A117076
ARMANDO MONTER JACINTO,
Sonoma County
Defendant and Respondent.
Super. Ct. No. SCR487837

In the circumstances of this case, did the deportation of the sole witness
favorable to the defense violate defendant‟s federal and state constitutional rights
to the compulsory attendance of witnesses in his favor? Reversing the trial court,
the Court of Appeal held it did not. We affirm.
FACTS1
On May 12, 2006, Eric Garcia and victim Victor Retana went to a
restaurant in Santa Rosa and put $10 into the jukebox. When a technical problem
caused the music suddenly to stop playing, they asked the restaurant owner for a
refund. At the time, defendant Armando Monter Jacinto and an unidentified
woman were also present in the restaurant, and defendant was talking to the
restaurant‟s owner. Apparently unhappy with Garcia‟s and Retana‟s music

1
As the trial court dismissed the case before trial, the facts are drawn from
the preliminary hearing and the hearing in support of the motion to dismiss.
1


selections, defendant advised the owner against providing a refund, but he
nevertheless refunded the money. As Garcia and Retana prepared to leave, an
altercation began. Garcia testified he had already exited the restaurant‟s front door
when he turned to look back and saw Retana standing just inside the door.
Defendant, the restaurant owner, the unidentified woman, and an unknown older
man were standing very close to Retana, all of them pushing and shoving.
According to Garcia, defendant suddenly produced a knife and stabbed Retana in
the abdomen. Garcia did not see anyone holding a knife except for defendant,
although he admitted he could not see everyone‟s hands. After the stabbing,
Garcia heard Retana ask the restaurant owner: “Did you see what he had done?”
Garcia also heard the woman exclaim that she had not “done it.”
Detective Carlos Basurto of the Sonoma County Sheriff‟s Department
interviewed Retana in the hospital a week after the crime. According to Detective
Basurto, Retana reported that it was Garcia, not he, who became embroiled in an
altercation with the people in the restaurant. Retana stated that during the melee
people were pushing and shoving and some punches were thrown. He went to
assist his friend Garcia and pulled defendant away from the crowd, whereupon
defendant drew some sort of blade and stabbed him. Retana told Detective
Basurto he was sure the woman had not stabbed him. Police arrested defendant
and charged him with attempted murder and assault with a deadly weapon.
Before trial, the defense employed Carlos Escobedo to investigate the case.
Defendant‟s family contacted Escobedo and urged him to interview someone
named Nicolas Esparza,2 who claimed to be a percipient witness to the stabbing.

2
Other documents, such as the reporter‟s transcript and the pleadings in the
trial court, spell his name as “Nicholas Esparza.” We adopt the spelling used in
the Court of Appeal opinion, which is consistent with Esparza‟s booking sheet.
2


Escobedo located Esparza in county jail, where he was being held on an unrelated
domestic violence charge, and interviewed him on July 19, 2006. During this
interview, Esparza told Escobedo he worked in a lunch truck sponsored by the
restaurant. At the time of the stabbing, Esparza said he was outside the restaurant,
cleaning the truck. He said he saw the entire altercation and saw the woman in the
group take something out of her purse and “hit[] [Retana] with a blade.” Esparza
reported seeing blood spurt from the victim‟s body. When asked to describe the
knife, Esparza said he did not “exactly” see the blade, but later agreed when
Escobedo asked if he “saw her put the blade in the [victim‟s] abdomen.” Esparza
said he was not drunk at the time (having just finished his day‟s work) and was
99 percent sure the woman did the stabbing. According to Escobedo, Esparza told
him that although he might get into trouble by revealing what he saw, “he thought
it was unfair [that defendant] was in jail for something he didn‟t do.” On
October 6, Escobedo returned to the jail and served the sheriff with a subpoena for
Esparza.
On October 16, Escobedo again returned to the jail, this time to serve
Esparza personally with a subpoena and to reinterview him. Before the interview,
Escobedo spoke to a receptionist at the jail named “Rita,” whom the prosecutor
later described as a “long time member of the Sheriff‟s Office who works at the
. . . jail.” Rita read from a computer screen and confirmed that Esparza was listed
in the sheriff‟s database as a defense witness in a case; she mentioned as well that
she thought Esparza would be deported. When Escobedo reinterviewed Esparza,
Esparza also mentioned he thought he would be deported. Escobedo did not
advise anyone at the jail not to deport Esparza.
Esparza was in fact released to federal authorities and deported on
October 18, 2006. As a consequence, defendant moved to dismiss the charges,
claiming that Esparza‟s deportation violated his constitutional rights under the
3
federal due process and compulsory process clauses. (U.S. Const., 5th, 6th, 14th
Amends.) At the hearing on the motion, Escobedo testified that, as a result of his
investigation, he had determined that Esparza was the only person actually to
witness the stabbing other than the victim himself. According to Escobedo, a
waitress at the restaurant confirmed that she saw Esparza outside the restaurant the
night of the stabbing. The prosecution presented no evidence suggesting a federal
immigration detainer existed naming Esparza as a person wanted for deportation;
accordingly, the trial court held no such detainer existed. (But see post, p. 10 &
fn. 5.) Finding the missing evidence from Esparza was material to defendant‟s
proposed defense, the trial court granted defendant‟s motion to dismiss the
charges. The Court of Appeal reversed, and we granted review.
DISCUSSION
For those accused by the government of having committed a crime, the
Sixth Amendment to the United States Constitution sets forth several fundamental
protections, including the right to legal counsel, to an impartial jury, to notice of
the charges, to confront one‟s accusers, and to a speedy trial. Pertinent to the
matter before us today is another component of the bundle of rights guaranteed by
the Sixth Amendment: the right of one accused of a crime to compel the
testimony of those who have favorable evidence. Thus, the Sixth Amendment
provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . .
to have compulsory process for obtaining witnesses in his favor . . . .” This
constitutional guarantee, generally termed the compulsory process clause, applies
in both federal and state trials. (Washington v. Texas (1967) 388 U.S. 14 [6th
Amend.‟s compulsory process clause is incorporated into the 14th Amend.‟s due
process clause, making it applicable in state prosecutions].)
The right of an accused to compel witnesses to come into court and give
evidence in the accused‟s defense is a fundamental one. As the high court has
4
explained: “The right to offer the testimony of witnesses, and to compel their
attendance, if necessary, is in plain terms the right to present a defense, the right to
present the defendant‟s version of the facts as well as the prosecution‟s to the jury
so it may decide where the truth lies. Just as an accused has the right to confront
the prosecution‟s witnesses for the purpose of challenging their testimony, he has
the right to present his own witnesses to establish a defense. This right is a
fundamental element of due process of law.” (Washington v. Texas, supra, 388
U.S. at p. 19.)
Article I, section 15 of the California Constitution similarly guarantees as a
matter of state constitutional law that “[t]he defendant in a criminal cause has the
right . . . to compel attendance of witnesses in the defendant‟s behalf . . . .” This
court, as the final arbiter of the meaning of the California Constitution, has
likewise found the state constitutional right to compel the attendance of witnesses
a basic component of a fair trial. (In re Martin (1987) 44 Cal.3d 1, 30; see also
People v. Barnum (2003) 29 Cal.4th 1210, 1223 [“The right to compulsory
process is a „fundamental‟ right.”].) “A judicial system with power to compel
attendance of witnesses is essential to effective protection of the inalienable rights
guaranteed by [the state Constitution].” (Vannier v. Superior Court (1982) 32
Cal.3d 163, 171.)
A criminal defendant‟s rights under the compulsory process clause can be
infringed in several ways. “They include, for example, statements to defense
witnesses to the effect that they would be prosecuted for any crimes they reveal or
commit in the course of their testimony. [Citations.] They also include statements
to defense witnesses warning they would suffer untoward consequences in other
cases if they were to testify on behalf of the defense. [Citations.] Finally, they
include arresting a defense witness before he or other defense witnesses have
given their testimony.” (In re Martin, supra, 44 Cal.3d at pp. 30-31.) In this case,
5
defendant contends the prosecution violated his rights under the compulsory
process clause when the sheriff released Esparza to federal officials from United
States Immigration and Customs Enforcement (ICE), knowing he would most
likely be deported and thus unavailable to testify on defendant‟s behalf.
To prevail on a claim of prosecutorial violation of the right to compulsory
process, a defendant must establish three elements. “ „First, he must demonstrate
prosecutorial misconduct, i.e., conduct that was “entirely unnecessary to the
proper performance of the prosecutor‟s duties and was of such a nature as to
transform a defense witness willing to testify into one unwilling to testify.” ‟ (In re
Williams (1994) 7 Cal.4th 572, 603 . . . .) Second, he must establish the
prosecutor‟s misconduct was a substantial cause in depriving the defendant of the
witness‟s testimony. (Ibid.) The defendant, however, „is not required to prove
that the conduct under challenge was the “direct or exclusive” cause. [Citations.]
Rather, he need only show that the conduct was a substantial cause. [Citations.]
The misconduct in question may be deemed a substantial cause when, for
example, it carries significant coercive force [citation] and is soon followed by the
witness‟s refusal to testify.‟ (In re Martin, supra, 44 Cal.3d at p. 31.) Finally, the
defendant must show the testimony he was unable to present was material to his
defense.” (People v. Lucas (1995) 12 Cal.4th 415, 457; In re Williams, at p. 603;
see United States v. Valenzuela-Bernal (1982) 458 U.S. 858.)
Applying this test to the facts of this case, we conclude defendant did not
satisfy the first element, i.e., prosecutorial misconduct. Preliminarily, we note that
although defendant subpoenaed Esparza to appear at trial, the trial was set for a
date after Esparza‟s scheduled release from local custody. Accordingly, the
sheriff in any event would have had no responsibility for ensuring Esparza‟s
appearance at trial. But even if we assume, as is apparently the case, that county
jail officials released Esparza to federal immigration authorities immediately upon
6
the expiration of his jail term, thereby rendering him unavailable to testify at trial,
defendant fails to show prosecutorial misconduct, i.e., that the prosecutor acted in
a manner “ „entirely unnecessary to the proper performance of [his] duties‟ ” and
thereby prevented Esparza from testifying on defendant‟s behalf. (In re Williams,
supra, 7 Cal.4th at p. 603; accord, People v. Mincey (1992) 2 Cal.4th 408, 460.)
Because it was the sheriff, not the prosecutor, who released Esparza to
immigration officials, to satisfy this element defendant must show the jail officials
were part of the prosecution team (or otherwise acted at the prosecution‟s behest).
This he did not do.
As in other counties, the Sonoma County Sheriff has legal authority to run
the county jail and acts as the custodian of the prisoners and detainees therein.
(Pen. Code, § 4000; Gov. Code, § 26605.) Another division of the sheriff‟s
department provides law enforcement services to certain parts of the county.
Indeed, Detective Basurto of the Sonoma County Sheriff‟s Department
investigated the crime in this case. But this formal identity between sheriff‟s
deputies operating and providing protective services in the jail and detectives in
the law enforcement division investigating crimes does not automatically render
the deputies assigned to the jail members of the prosecutorial team. Absent some
additional showing of affirmative prosecutorial involvement in Esparza‟s
removal,3 we cannot hold the prosecutor legally responsible merely because a

3
Both the People and the Court of Appeal refer to this argument as one
involving “state action,” but that phrase is misleading. (See, e.g., Shelley v.
Kraemer
(1948) 334 U.S. 1 [judicial enforcement of a racially restrictive covenant
constitutes state action]; Burton v. Wilmington Pkg. Auth. (1961) 365 U.S. 715
[racial discrimination by a private restaurant that leased space from a state agency
constitutes state action].) The sheriff‟s department is clearly a governmental
agency and acts with state action. (See Lugar v. Edmondson Oil Co. (1982) 457
U.S. 922 [execution of a writ of attachment by the county sheriff constitutes state

(footnote continued on next page)
7


sheriff‟s deputy working at the jail was involved. As the Court of Appeal
explained below: “The sheriff‟s department was no more than the custodian of
witness Esparza. In this case, it was not a part of the prosecutorial investigative
team. . . . [and] the action of the sheriff‟s department or county jail personnel may
not be attributed to the prosecution.”
Our decision is consistent with United States v. Valenzuela-Bernal, supra,
458 U.S. 858 (Valenzuela-Bernal), cited by both parties. In that case, the
defendant, an alien present in the country illegally, was driving a car with five
other men, all of whom had crossed the border illegally. At a checkpoint near
Temecula, border patrol agents noticed the five passengers lying down in the car
and motioned for the defendant to stop. He instead sped through the checkpoint
and engaged agents in a high-speed chase before stopping the car and attempting
to flee on foot. The defendant and three of the five passengers were captured,
whereupon the defendant admitted he was in the country illegally and was
transporting the other men in order to assist human smugglers. The three
passengers confirmed this story and admitted their undocumented status. All three
identified the defendant as the driver of the car.
After determining the three passengers possessed no additional material
evidence related to the charge against the defendant (i.e., transporting illegal
aliens), the Assistant United States Attorney arranged for the deportation of two of
the three, detaining the third to permit him to testify for the prosecution at the
defendant‟s criminal trial. The defendant subsequently moved to dismiss the
indictment on the ground that “the Government‟s deportation of the two

(footnote continued from previous page)
action].) The pertinent question here is not whether state action exists, but
whether the sheriff‟s actions are attributable to the prosecution.
8


passengers . . . violated . . . his Sixth Amendment right to compulsory process for
obtaining favorable witnesses.” (Valenzuela-Bernal, supra, 458 U.S. at p. 861.)
The high court disagreed. The court explained that the compulsory process clause
“does not by its terms grant to a criminal defendant the right to secure the
attendance and testimony of any and all witnesses: it guarantees him „compulsory
process for obtaining witnesses in his favor.‟ ” (Id. at p. 867.) The court observed
that in Washington v. Texas, supra, 388 U.S. 14, the seminal decision on the
meaning of the compulsory process clause, the State of Texas had violated the
defendant‟s compulsory process rights because he had been deprived of “ „relevant
and material‟ ” testimony “ „vital‟ ” to his defense. (Valenzuela-Bernal, at p. 867,
italics omitted.) From this, the Valenzuela-Bernal court concluded a defendant
“cannot establish a violation of his constitutional right to compulsory process
merely by showing that deportation of [potential witnesses] deprived him of their
testimony. He must at least make some plausible showing of how their testimony
would have been both material and favorable to his defense.” (Ibid.; see also id. at
p. 873.) “As in other cases concerning the loss of material evidence, sanctions
will be warranted for deportation of alien witnesses only if there is a reasonable
likelihood that the testimony could have affected the judgment of the trier of fact.”
(Id. at pp. 873-874.) Because the defendant made no showing the deported
witnesses could have provided material, favorable evidence for his defense, his
right to compulsory process was not violated.
Here, of course, defendant was deprived of the testimony of the sole
witness in his defense, one whose testimony, if believed, would have fully
exonerated him. Seeking to distinguish Valenzuela-Bernal, the People note the
prosecutor in that case was directly responsible for the witnesses‟ removal from
the country, whereas in this case no evidence shows the prosecutor played any part
9
in Esparza‟s deportation. Instead, deputy sheriffs working in the jail acted on their
own in cooperating with ICE. For the reasons previously discussed, we agree.
Moreover, even were the jail personnel to be characterized as members of
the prosecution team, defendant would face an additional obstacle to establishing
his claim of prosecutorial misconduct: no misconduct occurred in connection with
Esparza‟s deportation because the sheriff properly acquiesced to ICE‟s request for
Esparza, as represented by the issuance of the federal immigration detainer. That
Esparza was present in the country in violation of immigration laws is undisputed.
The prosecutor, arguing in opposition to the motion to dismiss before the trial
court, assumed ICE had issued a federal immigration detainer seeking Esparza‟s
custody once his misdemeanor term in county jail expired.4 Although the
prosecution presented no direct evidence of the detainer, one in fact existed and
the Court of Appeal took judicial notice of it.5

4
The prosecutor argued: “The jail‟s obligation ceased when the federal
government came in and said [Esparza] is being deported. What we don’t have is
any information on why he was being deported other than it was
[a] mandatory
deportation
.” (Italics added.) He continued: “What [ICE] has told us at this point
is that [Esparza] was picked up from jail and they drove him away. He went back
to Mexico.”
5
Included in the materials for which judicial notice was granted by the Court
of Appeal is a copy of a federal immigration detainer, dated August 19, 2006,
asking Sonoma County authorities to detain Esparza “for a period not to exceed 48
hours . . . to provide adequate time for [federal immigration officials] to assume
custody of the alien.” Esparza was sentenced on July 3, 2006, to serve 180 days
for two counts of misdemeanor spousal abuse (Pen. Code, § 273.5), so it is likely
ICE officials did not immediately move to take custody. In a subsequent
document dated October 17, 2006, ICE notified Esparza it intended to remove him
from the country. He was apparently deported the next day.

“[A]n appellate court generally is not the forum in which to develop an
additional factual record.” (People v. Peevy (1998) 17 Cal.4th 1184, 1207.)
“Reviewing courts generally do not take judicial notice of evidence not presented
to the trial court. Rather, normally „when reviewing the correctness of a trial

(footnote continued on next page)
10


The federal government‟s power over immigration issues is supreme. (See
generally De Canas v. Bica (1976) 424 U.S. 351, 354 [“Power to regulate
immigration is unquestionably exclusively a federal power.”]; People v. Kim
(2009) 45 Cal.4th 1078, 1108 [Congress has plenary power over immigration].)
Faced with an immigration detainer from ICE, the sheriff and his employees
properly complied, as a matter of comity, by releasing Esparza to ICE‟s custody.
Accordingly, defendant fails to establish a violation of his constitutional rights
under either the state or federal compulsory process clauses.
Defendant, we observe, was not powerless to ensure that Esparza would
appear at his trial. Indeed, the law requires him to take an active role in ensuring
the presence of his witnesses. As the United States Supreme Court has observed:
“There is a significant difference between the Compulsory Process Clause weapon
and other rights that are protected by the Sixth Amendment — its availability is
dependent entirely on the defendant‟s initiative. Most other Sixth Amendment
rights arise automatically on the initiation of the adversary process and no action
by the defendant is necessary to make them active in his or her case. While those
rights shield the defendant from potential prosecutorial abuses, the right to compel
the presence and present the testimony of witnesses provides the defendant with a
sword that may be employed to rebut the prosecution‟s case. The decision

(footnote continued from previous page)
court‟s judgment, an appellate court will consider only matters which were part of
the record at the time the judgment was entered.‟ ” (Vons Companies, Inc. v.
Seabest Foods, Inc.
(1996) 14 Cal.4th 434, 444, fn. 3; Doers v. Golden Gate
Bridge etc. Dist.
(1979) 23 Cal.3d 180, 184, fn. 1 [same].) Defendant did not
object to the People‟s request for judicial notice in the appellate court, however,
and both parties referred to the judicially noticed material at oral argument before
this court. Under such circumstances, we conclude the material judicially noticed
by the appellate court is properly before us.
11


whether to employ it in a particular case rests solely with the defendant. The very
nature of the right requires that its effective use be preceded by deliberate planning
and affirmative conduct.” (Taylor v. Illinois (1988) 484 U.S. 400, 410, italics
added, fn. omitted.)
Thus, in addition to serving a subpoena on Esparza, other procedures were
potentially available to defendant to ensure Esparza‟s testimony at trial. For
example, if a witness is in jail, Code of Civil Procedure section 1995 authorizes a
procedure by which the jailer must produce the witness, or allow the witness to be
deposed in the jail to preserve his testimony.6 Because defendant, through his
investigator, learned that Esparza might be deported, possibly before trial,
defendant could have moved to depose Esparza in the jail.
Defendant also could have approached ICE and invoked part 215.2(a) of
title 8 of the Code of Federal Regulations (2010), which provides: “Any
departure-control officer who knows or has reason to believe that the case of an
alien in the United States comes within the provisions of [8 C.F.R.] § 215.3 shall
temporarily prevent the departure of such alien from the United States and shall
serve him with a written temporary order directing him not to depart, or attempt
to depart, from the United States until notified of the revocation of the order.”
(Italics added.) Esparza, as a material witness in a criminal case, arguably came
within this provision, as part 215.3 of title 8 of the Code of Federal Regulations
(2010) provides in pertinent part: “The departure from the United States of any
alien within one or more of the following categories shall be deemed prejudicial to

6
Code of Civil Procedure section 1995 provides in pertinent part: “If the
witness be a prisoner, confined in a jail within this state, [the court may make] an
order for his examination in the jail upon deposition, or for his temporary removal
and production before a court . . . .”
12


the interests of the United States. [¶] . . . [¶] (g) Any alien who is needed in the
United States as a witness in . . . any criminal case under investigation or pending
in a court in the United States: Provided, That any alien who is a witness in . . .
any criminal case pending in any criminal court proceeding may be permitted to
depart from the United States with the consent of the appropriate prosecuting
authority, unless such alien is otherwise prohibited from departing under the
provisions of this part.”
In short, defendant was not without legal tools to ensure that Esparza was
available to testify on his behalf.
CONCLUSION
The decision of the Court of Appeal reversing the trial court is affirmed.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.

13




CONCURRING OPINION BY KENNARD, J.

Defendant subpoenaed a witness to testify at his upcoming criminal trial.
At the time, the witness was in the custody of the Sonoma County Sheriff because
he was serving a jail sentence on a matter unrelated to defendant‟s trial. After the
witness completed his sentence, the sheriff turned him over to federal immigration
authorities, who promptly deported him, thereby making him unavailable to testify
on behalf of defendant. I agree with the majority that the release of the witness to
federal immigration authorities did not violate defendant‟s constitutional right to
compel the attendance of witnesses on his behalf. (U.S. Const., 6th Amend.; Cal.
Const., art. I, § 15.)
As the majority points out, to establish a violation of the right to compel the
attendance of witnesses a defendant must show, among other things, misconduct
by the prosecution. (People v. Lucas (1995) 12 Cal.4th 415, 457.) The
prosecution team is comprised of not only the prosecutor but also “others acting
on the government‟s behalf in the case, including the police.” (Kyles v. Whitley
(1995) 514 U.S. 419, 437.) Here, defendant has not established prosecutorial
misconduct because the federal immigration detainer required the Sonoma County
Sheriff to deliver the witness to the custody of federal officials; defendant has
failed to establish prosecutorial involvement in the deportation of the witness.
(Maj. opn., ante, at pp. 7, 10-11.) This conclusion is sufficient to resolve this
issue.
1



But the majority also holds that even though the Sonoma County Sheriff‟s
Department investigated the crime with which defendant was charged, the
sheriff‟s deputies operating the jail cannot be considered members of the
prosecution team, and therefore any misconduct by those deputies cannot be
attributed to the prosecution. (Maj. opn., ante, at pp. 7-8.)
This is a difficult issue that, in light of the majority‟s correct conclusion
pertaining to the federal immigration detainer, need not be addressed in this case.
Whether the prosecution team includes the investigating law enforcement agency
itself or only some of its personnel and, if so, which personnel under what
circumstances, are substantial questions as shown by language in a couple of our
cases suggesting that the agency itself is part of the prosecution team (see People
v. Zambrano (2007) 41 Cal.4th 1082, 1133; People v. Steele (2004) 32 Cal.4th
682, 696-697) and language in an earlier decision suggesting that only the
agency‟s investigators are part of the prosecution team (In re Brown (1998) 17
Cal.4th 873, 879). Because there was no prosecutorial misconduct here and thus
there is no need to resolve the issue in this case and because of the difficulty in
determining who are or are not members of the prosecution team, I do not join the
majority‟s holding on this point.
KENNARD, J.
I CONCUR:
MORENO, J.
2

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Jacinto
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 162 Cal.App.4th 373
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S164011
Date Filed: May 27, 2010
__________________________________________________________________________________

Court:

Superior
County: Sonoma
Judge: Lawrence G. Antolini

__________________________________________________________________________________

Attorneys for Appellant:

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A.
Engler, Assistant Attorney General, Donald E. de Nicola, Deputy State Solicitor General, Laurence K.
Sullivan, Stan Helfman and Amy Haddix, Deputy Attorneys General, for Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Stephanie Clark, under appointment by the Supreme Court, for Defendant and Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Amy Haddix
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5893

Stephanie Clark
First District Appellate Project
730 Harrison Street, Suite 201
San Francisco, CA 94107
(415) 495-3119

Petition for review after the Court of Appeal reversed an order dismissing an information. This case presents the following issue: Was defendant denied his constitutional rights to compulsory process and due process when the sheriff's department released a subpoenaed defense witness to federal immigration authorities for deportation prior to defendant's trial?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Thu, 05/27/201049 Cal. 4th 263, 231 P.3d 341, 109 Cal. Rptr. 3d 610S164011Review - Criminal Appealopinion issued

Parties
1The People (Plaintiff and Appellant)
Represented by Amy Haddix
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

2Jacinto, Armando Monter (Defendant and Respondent)
2777 Ventura Avenue
Santa Rosa, CA 95403

Represented by Stephanie Clarke
First District Appellate Project
730 Harrison Street, Suite 201
San Francisco, CA


Opinion Authors
OpinionJustice Kathryn M. Werdegar
ConcurJustice Joyce L. Kennard

Disposition
May 27 2010Opinion: Affirmed

Dockets
May 30 2008Petition for review filed
  Armando M. Jacinto, respondent Stephanie Clarke, counsel
Jun 2 2008Record requested
  via email
Jun 6 2008Received Court of Appeal record
  file jacket/briefs/sealed envelope/accordian file
Jul 17 2008Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including August 28, 2008, or the date upon which review is either granted or denied.
Jul 30 2008Petition for review granted (criminal case)
  George, C.J., was absent and did not participate. Votes: Moreno, A.C.J., Kennard, Baxter, Werdegar, and Corrigan, JJ.
Aug 8 2008Counsel appointment order filed
  Upon request of appellant for appointment of counsel, the First District Appellate Project is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Aug 26 2008Request for extension of time filed
  Counsel for aplt. requests extension of time to September 22, 2008, to file the opening brief on the merits.
Aug 29 2008Extension of time granted
  On application of respondent and good cause appearing it is ordered that the time to serve and file the opening brief on the merits is extended to and including September 22, 2008.
Sep 19 2008Opening brief on the merits filed
  counsel for resp, (Armando Monter Jacinto)
Oct 16 2008Request for extension of time filed
  Counsel for respondent requests extension of time to November 19, 2008, to file the answer brief on the merits.
Oct 21 2008Extension of time granted
  On application of respondent and good cause appearing it is ordered that the time to serve and file the answer brief is extended to and including November 19, 2008.
Nov 19 2008Received:
  counsel for aplt. over-sized answer brief on the merits.
Nov 20 2008Application to file over-length brief filed
  counsel for aplt.. (People)
Nov 24 2008Answer brief on the merits filed
  counsel for aplt.. w/permission
Dec 9 2008Application to file over-length brief filed
  counsel for resp.
Dec 10 2008Received:
  counsel for resp. oversized reply brief.
Dec 15 2008Reply brief filed (case fully briefed)
  counsel for respondent, w/permission
Feb 3 2010Case ordered on calendar
  to be argued Tuesday, March 2, 2010, at 1:30 p.m., in San Francisco
Feb 11 2010Filed:
  new authority: People v. Ervine (2009) 47 Cal. 4th 745; from counsel for respondent, by Amy Haddix, deputy attorney general.
Mar 2 2010Cause argued and submitted
 
May 26 2010Notice of forthcoming opinion posted
  To be filed Thursday, May 27, 2010 @ 10 a.m.
May 27 2010Opinion filed: Judgment affirmed in full
  Majority Opinion by Werdegar, J. -- joined by George, C. J., Baxter, Chin, & Corrigan, JJ. Concurring Opinion by Kennard, J. -- joined by Moreno, J.

Briefs
Sep 19 2008Opening brief on the merits filed
 
Nov 24 2008Answer brief on the merits filed
 
Dec 15 2008Reply brief filed (case fully briefed)
 
Brief Downloads
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respondents_opening_brief_on_the_merits.pdf (2299315 bytes) - Respondent's Opening Brief on the Merits
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respondents_petition_for_review.pdf (1313770 bytes) - Respondent's Petition for Review
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appellants_answer_brief_on_the_merits.pdf (2866917 bytes) - Appellant's Answer Brief on the Merits
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respondents_reply_brief_on_the_merits.pdf (1103085 bytes) - Respondent's Reply Brief on the Merits
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 28, 2010
Annotated by elfgirl

ISSUES:
Deportation of Witness, Compulsion, Sixth Amendment, Due Process, Prosecutorial Misconduct

FACTS:
On May 12, 2006, Eric Garcia and the victim, Victor Retana, went to a restaurant in Santa Rosa. They put $10 into a jukebox, but it was broken so they asked the restaurant owner for a refund. The defendant, Armando Monter Jacinto, apparently did not like the music selections, and advised against a refund. The restaurant owner gave the refund anyway, but as Garcia and Retana were leaving the restaurant, a fight broke out with Jacinto, the owner, and other guests, including an unidentified woman. Then someone pulled out a knife and stabbed Retana in the abdomen. A week later at the hospital, Retana claimed that it was Jacinto who had stabbed him. Garcia also stated that during the stabbing heard Retana ask the owner “Did you see what he had done?” and the woman say she had not “done it,” but he could not see who actually had committed the stabbing.

The defense had a witness, Nicolas Esparza, who worked behind the restaurant and saw the fight. While in jail, he told the defense investigator that he saw the woman take something out of her purse and “hit[] [Retana] with a blade,” and then blood spurted from his body. During a second interview, both Esparza and the jail clerk told the defense investigator that Esparza might be deported. The investigator did not take action, and Esparza was released from jail into federal custody, and was deported on October 18, 2006.

As a consequence, the defendant Jacinto moved to dismiss the charges, claiming that Esparza’s deportation violated his constitutional rights of federal due process and compulsory process clauses (U.S. Const., 5th, 6th, 14th Amendments). The defense investigator testified that Esparza was the only person actually to witness the stabbing other than the victim himself. Additionally, a waitress at the restaurant testified that she saw Esparza outside the restaurant on the night of the stabbing.

PROCEDURAL POSTURE:
The trial court found that the Esparza’s testimony was material to Jacinto’s proposed defense, and so the deportation was a violation of his constitutional rights. Therefore, the trial court granted defendant’s motion to dismiss the charges. The Court of Appeal reversed. The California Supreme Court granted review, and affirmed the decision of the Court of Appeals reversing the trial court.

DISCUSSION:
One of the Sixth Amendment guarantees is the compulsory process clause, which guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . .to have compulsory process for obtaining witnesses in his favor . . . .” The right to compel the testimony of those who have favorable evidence applies to both federal and state trials, and has been held as part of a fundamental right to due process of the law by the Supreme Court of the U.S. The California Supreme Court has similarly found compulsory process a fundamental right under the state constitution.

There are three elements to a compulsory process claim: (1) prosecutorial misconduct, (2) the misconduct must have caused the deprivation of the witness’s testimony, and (3) the testimony must have been material to his defense. The California Supreme Court found that the defendant did not establish the first element. Even though the defense subpoenaed the witness, the trial date was set for after the witnesses was scheduled to be released from jail. The actions of the sheriff, releasing the witness into federal custody, can not be said to have acted as part of the prosecutorial team. Instead, the sheriffs were acting on their own in cooperation with the United States Immigration and Customs Enforcement (ICE). Additionally, no misconduct occurred because the sheriff properly acquiesced to ICE’s request for Esparza, as represented by the issuance of the federal immigration detainer, because the federal government’s power over immigration issues is supreme. Finally, the compulsory right requires deliberate planning and affirmative conduct. Beyond a subpoena, the defense could have deposed the witness in jail, but they did not take actions to ensure the defendant’s compulsory process right.

CONCURRING OPINION BY KENNARD, J.
The concurring opinion agrees with the majority that the sheriff's release of the witness did not violate the defendant’s compulsory process right. He finds that the federal government’s retainer is enough to hold that the release was not prosecutorial misconduct. However, he disagrees with the further finding that the sheriff was also not part of the prosecutorial team.