49 Cal. 4th 613, 232 P.3d 710, 110 Cal. Rptr. 3d 729

Filed 7/1/10

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S171895
v.
Ct.App. 4/3 G039028
HONORIO MORENO HERRERA,
Orange County
Defendant and Appellant.
Super. Ct. No. 05CF3817

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
1


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, subd. (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.
2


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
3


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.
1
The prosecutor informed the court that he personally spoke with the Orange
County Probation Department and ascertained that one arrest warrant had been
issued in April 2007 for Portillo?s failure to report to probation after his release
from custody in June 2006. The record is unclear as to the source and date of the
other warrant.
4


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
2
Strictly speaking, the United States and El Salvador did have an extradition
treaty. (Treaty Between the United States and El Salvador for the Mutual
Extradition of Fugitives from Justice, Apr. 18, 1911, 37 Stat. 1516, T.S. No. 560.)
That treaty, however, would not have permitted Portillo?s extradition or return to
the United States to testify as a witness at defendant?s trial.
5


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] has an opportunity, not
only of testing the recollection and sifting the conscience of the witness, but of
compelling him to stand face to face with the jury in order that they may look at
him, and judge by his demeanor upon the stand and the manner in which he gives
his testimony whether he is worthy of belief.? ? (People v. Louis (1986) 42 Cal.3d
969, 982, quoting Mattox v. United States (1895) 156 U.S. 237, 242-243.) To
6


deny or significantly diminish this right deprives a defendant of the essential
means of testing the credibility of the prosecution?s witnesses, thus calling ?into
question the ultimate ? ?integrity of the fact-finding process.? ? ? (Chambers v.
Mississippi (1973) 410 U.S. 284, 295.)? (People v. Cromer (2001) 24 Cal.4th 889,
896-897 (Cromer).)
Although important, the constitutional right of confrontation is not
absolute. (Chambers v. Mississippi, supra, 410 U.S. at p. 295; Cromer, supra,
24 Cal.4th at p. 897.) ?Traditionally, there has been ?an exception to the
confrontation requirement where a witness is unavailable and has given testimony
at previous judicial proceedings against the same defendant [and] which was
subject to cross-examination . . . .? (Barber v. Page [(1968) 390 U.S. 719,] 722.)?
(Cromer, supra, at p. 897.) Pursuant to this exception, the preliminary hearing
testimony of an unavailable witness may be admitted at trial without violating a
defendant?s confrontation right. (People v. Seijas (2005) 36 Cal.4th 291, 303.)
This traditional exception is codified in the California Evidence Code.3
(People v. Friend (2009) 47 Cal.4th 1, 67.) Section 1291, subdivision (a)(2),
provides that ?former testimony,? such as preliminary hearing testimony,4 is not
made inadmissible by the hearsay rule if ?the declarant is unavailable as a
witness,? and ?[t]he party against whom the former testimony is offered was a
party to the action or proceeding in which the testimony was given and had the
right and opportunity to cross-examine the declarant with an interest and motive
similar to that which he has at the hearing.? Thus, when the requirements of
3
All further statutory references are to this code unless otherwise indicated.
4
For purposes of the Evidence Code, former testimony includes ?testimony
given under oath? in ?a former hearing or trial of the same action.? (? 1290, subd.
(a).)
7


section 1291 are met, the admission of former testimony in evidence does not
violate a defendant?s constitutional right of confrontation. (People v. Friend, at
p. 67.)
There is no dispute that defendant was a party to the action in which
Portillo?s former testimony was given, and that he actually exercised his right to
cross-examine Portillo with the requisite interest and motive. The question is
whether Portillo was unavailable as a witness.
A witness who is absent from a trial is not ?unavailable? in the
constitutional sense unless the prosecution has made a ?good faith effort? to obtain
the witness?s presence at the trial. (Barber v. Page (1968) 390 U.S. 719, 724-725
(Barber).) The United States Supreme Court has described the good-faith
requirement this way: ?The law does not require the doing of a futile act. Thus, if
no possibility of procuring the witness exists (as, for example, the witness?
intervening death), ?good faith? demands nothing of the prosecution. But if there
is a possibility, albeit remote, that affirmative measures might produce the
declarant, the obligation of good faith may demand their effectuation. ?The
lengths to which the prosecution must go to produce a witness . . . is a question of
reasonableness. [Citation.] The ultimate question is whether the witness is
unavailable despite good-faith efforts undertaken prior to trial to locate and
present that witness.? (Ohio v. Roberts (1980) 448 U.S. 56, 74, disapproved on
another point in Crawford v. Washington (2004) 541 U.S. 36, 60-68.)
Our Evidence Code features a similar requirement for establishing a
witness?s unavailability. Under section 240, subdivision (a)(5) (section 240(a)(5)),
a witness is unavailable when he or she is ?[a]bsent from the hearing and the
proponent of his or her statement has exercised reasonable diligence but has been
unable to procure his or her attendance by the court?s process.? (Italics added.)
The term ?[r]easonable diligence, often called ?due diligence? in case law,
8


? ?connotes persevering application, untiring efforts in good earnest, efforts of a
substantial character.? ? ? (People v. Cogswell (2010) 48 Cal.4th 467, 477.)
Considerations relevant to the due diligence inquiry ?include the timeliness of the
search, the importance of the proffered testimony, and whether leads of the
witness?s possible location were competently explored.? (People v. Wilson (2005)
36 Cal.4th 309, 341 [relying on Cromer, supra, 24 Cal.4th at p. 904].) In this
regard, ?California law and federal constitutional requirements are the same.?
(People v. Valencia (2008) 43 Cal.4th 268, 291-292.)
Before analyzing the good faith and due diligence requirements in depth,
we briefly address section 240, subdivision (a)(4) (section 240(a)(4)), which
provides that a witness is unavailable when he or she is ?[a]bsent from the hearing
and the court is unable to compel his or her attendance by its process.? In contrast
to section 240(a)(5), section 240(a)(4) makes no mention of a ?reasonable
diligence? requirement, thus indicating the Legislature?s intent to dispense with
such a showing in those cases where the court has no power to compel the
witness?s attendance. Although the Attorney General contends on appeal that the
terms of section 240(a)(4) have been satisfied, neither the prosecution nor the trial
court purported to predicate Portillo?s unavailability on that provision. Even
assuming, however, that Portillo was unavailable under section 240(a)(4),
unavailability in the constitutional sense nonetheless requires a determination that
the prosecution satisfied its obligation of good faith in attempting to obtain
Portillo?s presence. With this in mind, we shall assess the reasonableness of the
prosecution?s actions.
As indicated, to establish unavailability, the prosecution must show that its
efforts to locate and produce a witness for trial were reasonable under the
circumstances presented. (Ohio v. Roberts, supra, 448 U.S. at p. 74; People v.
Smith (2003) 30 Cal.4th 581, 609 (Smith).) We review the trial court?s resolution
9


of disputed factual issues under the deferential substantial evidence standard
(Cromer, supra, 24 Cal.4th at p. 902), and independently review whether the facts
demonstrate prosecutorial good faith and due diligence (id. at pp. 902-903).
In this case, we must consider what prosecutorial efforts will sustain a
finding of unavailability when the absent witness was not in this jurisdiction but in
another country. We start by consulting two decisions of the United States
Supreme Court: Barber, supra, 390 U.S. 719, and Mancusi v. Stubbs (1972) 408
U.S. 204 (Mancusi).
In Barber, supra, 390 U.S. 719, the issue was whether the petitioner was
deprived of his constitutional right of confrontation at his trial in Oklahoma for
armed robbery, in which the principal evidence against him consisted of the
preliminary hearing testimony of a witness who at the time of trial was serving a
federal prison term in Texas. (Id. at p. 720.)
Barber began by noting the state had made ?absolutely no effort to obtain
the presence of [the witness] at trial other than to ascertain that he was in a federal
prison outside Oklahoma.? (Barber, supra, 390 U.S. at p. 723.) Although
acknowledging that, at one time, a showing of mere absence from the jurisdiction
might have sufficed to demonstrate unavailability, Barber observed that times had
changed. By 1968, the ?increased cooperation between the States themselves and
between the States and the Federal Government? in making witnesses available for
trial had changed the confrontation clause analysis. (Ibid.) As relevant there, a
federal statute empowered federal courts to issue appropriate writs at the request
of state prosecutorial authorities, and federal prison policy also supported state
writ procedures. (Id. at p. 724; see also id. at pp. 723-724, fn. 4 [describing
procedures by which a state could secure the attendance of nonincarcerated and
state-incarcerated witnesses located in a sister state].)
10


In light of such developments, Barber held the prosecution failed to
establish the incarcerated witness?s unavailability because it had made absolutely
no effort to obtain his attendance by the cooperation of the federal authorities or a
federal court. (Barber, supra, 390 U.S. at p. 725.) As Barber explained, ?So far
as this record reveals, the sole reason why [the witness] was not present to testify
in person was because the State did not attempt to seek his presence. The right of
confrontation may not be dispensed with so lightly.? (Ibid., italics added.)
Mancusi, supra, 408 U.S. 204, decided four years later, discussed and
distinguished Barber, supra, 390 U.S. 719, in the context of a nonincarcerated
witness residing outside the United States. In Mancusi, the petitioner challenged
the use of a prior Tennessee murder conviction for sentencing purposes in a New
York criminal proceeding, on the ground the Tennessee conviction was obtained
in violation of his right of confrontation. (Mancusi, supra, 408 U.S. at p. 205.) At
the petitioner?s first Tennessee trial, the slain victim?s husband, Alex Holm,
testified for the prosecution, resulting in a murder conviction. That conviction was
reversed, and the petitioner was retried. At the retrial, the prosecution sought to
have Holm declared unavailable, based on the testimony of Holm?s son that Holm,
who was a naturalized American citizen, had left the United States and become a
permanent resident of his native Sweden. The trial court permitted Holm?s
testimony from the first trial to be read to the jury, and the petitioner was again
convicted of murder. (Id. at pp. 207-209.)
Mancusi concluded the use of the second Tennessee conviction did not
violate the petitioner?s right of confrontation. Mancusi observed that in Barber,
the uniform act to secure the attendance of witnesses from without a state, the
availability of appropriate federal writs, and the policy of federal prisons to honor
writs issued out of state courts, all supported Barber?s conclusion that ?the State
had not met its obligations to make a good-faith effort to obtain the presence of the
11


witness merely by showing that [the witness] was beyond the boundaries of the
prosecuting State.? (Mancusi, supra, 408 U.S. at p. 212.) In Mancusi, however,
the witness was not simply absent from Tennessee but was a permanent resident of
another country. (Id. at p. 211.) Mancusi found that distinction significant,
emphasizing: ?There have been . . . no corresponding developments in the area of
obtaining witnesses between this country and foreign nations.? (Id. at p. 212.) On
this point, Mancusi noted that neither the existing case law nor the statutory
language of the then effective version of 28 United States Code section 1783(a)
would have permitted a federal court to subpoena a United States citizen residing
in a foreign country for testimony in a state felony trial. (Mancusi, supra, 408
U.S. at pp. 211-212.)5
Under those circumstances, ?good faith? did not require additional efforts
by the prosecution. As far as the high court was concerned, ?[u]pon discovering
that Holm resided in a foreign nation, the State of Tennessee, so far as this record
shows, was powerless to compel his attendance at the second trial, either through
its own process or through established procedures depending on the voluntary
assistance of another government.? (Mancusi, supra, 408 U.S. at p. 212.)
Accordingly, Mancusi concluded the state trial court?s determination as to Holm?s
unavailability should stand. (Mancusi, supra, 408 U.S. at pp. 212-213.)
Subsequent to Mancusi, the Supreme Court stated in Ohio v. Roberts,
supra, 448 U.S. 56, that ?if there is a possibility, albeit remote, that affirmative
measures might produce the declarant, the obligation of good faith may demand
their effectuation.? (Id. at p. 74.) This statement did not alter or detract from
5
Mancusi declined to consider a 1964 amendment to 28 United States Code
section 1783 because it was not available to the Tennessee authorities at the time
of the petitioner?s retrial. (Mancusi, supra, 408 U.S. at p. 212, fn. 2.)
12


Mancusi?s analysis that when the prosecution discovers the desired witness resides
in a foreign nation, and the state is powerless to obtain the witness?s attendance,
either through its own process or through established procedures, the prosecution
need do no more to establish the witness?s unavailability. Indeed, the Supreme
Court cited Mancusi as providing ?significant support for a conclusion of good-
faith effort? in Ohio v. Roberts. (Id. at p. 76.)
California decisions are in accord. In People v. Ware (1978) 78 Cal.App.3d
822, a sexual assault victim testified at the defendant?s preliminary hearing, and
then returned home to Spain. (Id. at p. 827.) Despite having the victim?s address
and telephone number in Spain, the prosecution made no attempt to obtain her
presence at trial. (Id. at p. 829.) Nonetheless, Ware upheld the admissibility of
the victim?s videotaped preliminary hearing testimony. (Id. at pp. 837-838.)
While acknowledging that mere absence from the jurisdiction was no longer
sufficient to dispense with the right of confrontation (id. at p. 831), Ware found its
facts comparable to those in Mancusi, in that no alternative means were available
at that time to secure the victim?s attendance at trial (Ware, at p. 837).
People v. St. Germain (1982) 138 Cal.App.3d 507 (St. Germain) provides
an example where unavailability was demonstrated with regard to one witness
residing in another country at the time of trial, but not as to another witness
residing in the same foreign country. St. Germain determined that a witness
named Kowsoleea was properly declared unavailable, where it was shown he was
a citizen and resident of the Netherlands at the time of trial, because no court
process could compel the attendance of a foreign national and no treaty provision
or compact with the Netherlands existed. (Id. at pp. 517-518.) Notably, St.
Germain came to the opposite conclusion for the other witness, named Smith.
Although Smith lived in the Netherlands with Kowsoleea at the time of trial, she
had a ?green card,? which meant she was a permanent resident of the United
13


States. (Id. at p. 516.) Given Smith?s permanent resident status, the prosecution
?had available the remedy of a subpoena to be issued by the federal courts
requiring the appearance as a witness before a ?body designated by it? ? here the
superior court jury ? ?of a national or resident of the United States who is in a
foreign county. . . .? ? (Id. at p. 517, citing 28 U.S.C. ? 1783.)6 Because the
prosecution made no attempt to secure Smith?s presence through this federal
procedure, St. Germain concluded she was not unavailable and found her former
testimony inadmissible. (St. Germain, at p. 517.)
People v. Sandoval (2001) 87 Cal.App.4th 1425 (Sandoval) represents a
more recent application of the Barber/Mancusi analysis. There, the absent witness
was deported to his native Mexico after testifying at the defendant?s preliminary
hearing. (Id. at p. 1432.) The prosecution kept in contact with the witness, and
ascertained his willingness to return for the trial if given money to make the trip to
California, including $100 to pay for obtaining a passport and visa for legal entry
into the United States. (Ibid.) Ultimately, the prosecution decided not to provide
financial assistance to the witness, and did nothing more to secure his attendance
at the trial. (Ibid.)
Although acknowledging that the trial court had no power to compel the
witness?s appearance at trial (Sandoval, supra, 87 Cal.App.4th at p. 1434),
Sandoval found it highly significant that the United States and Mexico had a
treaty, which became effective in 1991, providing for cooperation in the
prosecution of crimes and mutual assistance in obtaining witness testimony.
6
The version of 28 United States Code section 1783 that applied in St.
Germain differed substantially from the version existing at the time of the relevant
events in Mancusi. (Compare St. Germain, supra, 138 Cal.App.3d at p. 517, fn. 6,
with Mancusi, supra, 408 U.S. at pp. 211-212.)
14


(Sandoval, at pp. 1439-1440.) Specifically, the treaty outlined several cooperative
methods by which a Mexican resident?s testimony could be obtained, either in
California or in Mexico. (Id. at p. 1439.)7 This development sufficiently
distinguished the situation in Sandoval from that which existed in 1972 when
Mancusi observed that the United States had not yet made agreements with foreign
countries similar to the interstate agreements found in Barber. (Sandoval, supra,
87 Cal.App.4th at p. 1440.) Because the treaty with Mexico represented such an
agreement, the prosecution?s failure to pursue any of the cooperative methods
outlined in the treaty was fatal to its showing of good faith: ?Consideration of the
options available to the prosecution and the extent to which the prosecution
attempted to use these alternatives to obtain [the witness?s] presence establishes
that the prosecution did not make a reasonable, good-faith effort.? (Id. at p. 1444.)
Accordingly, Sandoval concluded the absent witness residing in Mexico was not
unavailable in the constitutional sense.8
7
Sandoval described the treaty as follows. ?Article 7 allows a prosecutor in
the United States to request that a witness in Mexico be compelled by Mexican
authorities to appear and testify, but only in Mexico. Article 8 provides for the
transportation to the United States of a person in custody in Mexico to testify if the
person consents and Mexico has no reasonable basis to deny the request. And
article 9 allows the prosecution to request the assistance of Mexican authorities to
invite a person in Mexico to come to California and testify and to inform the
person concerning the extent to which expenses will be paid.? (Sandoval, supra,
87 Cal.App.4th at p. 1439, fns. omitted.)
8
We note Sandoval suggested that good faith also required the prosecution
to go beyond the treaty in trying to secure the absent witness?s presence. That part
of its discussion, however, was based on additional facts not presented here, i.e.,
there, the deported witness had previously disclosed at the preliminary hearing that
he was in the country illegally (Sandoval, supra, 87 Cal.App.4th at p. 1429), and
the prosecution actually located him in Mexico and received assurance he would
cooperate if provided the necessary funds (id. at pp. 1441-1442). Sandoval
observed that, in the face of such circumstances, ?[t]he prosecution could have

(footnote continued on next page)
15


Finally, Smith, supra, 30 Cal.4th 581, involved a situation where a Japanese
foreign exchange student named Fukumoto testified at the defendant?s preliminary
hearing, and then returned to Japan, where the prosecution contended he resided at
the time of trial. (Id. at p. 608.) The defendant did not dispute that Fukumoto
would have been unavailable if he were actually in Japan, but he challenged the
prosecution?s use of hearsay to establish that fact. (Id. at p. 609.) The trial court
concluded Fukumoto was unavailable because he was a Japanese resident and
therefore not subject to the court?s process, but it made no specific finding that the
prosecution had exercised due diligence to try to procure Fukumoto?s attendance.
(Id. at p. 610.)
Applying the independent review standard to the undisputed facts, Smith
found the prosecution satisfied its burden of showing due diligence upon obtaining
?three important pieces of information: (1) Fukumoto testified at the preliminary
hearing that he was a Japanese national and intended to leave the country several
months before the trial occurred, (2) Fukumoto?s host parent told the district
attorney that Fukumoto had left the country, and (3) the district attorney?s
investigator had called the telephone number in Japan that the records showed was
Fukumoto?s number and heard a voice at the other end say he was Fukumoto.

(footnote continued from previous page)

assisted [the witness] without reference or resort to the Treaty.? (Id. at p. 1442.)
Here, the prosecution was unable to establish contact with the absent witness. We
therefore need not and do not decide what additional efforts, if any, might be
constitutionally required to establish good faith in the event contact with an absent
witness is made. (See Smith, supra, 30 Cal.4th at p. 611, fn. 6 [declining to reach
issue whether ?prosecution was required to do more to procure [a witness?s]
attendance, such as request that he come voluntarily to testify?]; cf. People v.
Martinez
(2007) 154 Cal.App.4th 314; People v. Denson (1986) 178 Cal.App.3d
788.)
16


This information may have been legally incompetent, due to the hearsay rule, to
show that Fukumoto was actually in Japan. But it sufficed to show that the
prosecution made reasonable efforts to locate him and that further efforts to
procure his attendance would be futile.? (Smith, supra, 30 Cal.4th at pp. 610-
611.)9
The foregoing authorities make clear that, when a criminal trial is at issue,
unavailability in the constitutional sense does not invariably turn on the inability
of the state court to compel the out-of-state witness?s attendance through its own
process, but also takes into consideration the existence of agreements or
established procedures for securing a witness?s presence that depend on the
voluntary assistance of another government. (Mancusi, supra, 408 U.S. at
pp. 211-213.) Where such options exist, the extent to which the prosecution had
the opportunity to utilize them and endeavored to do so is relevant in determining
whether the obligations to act in good faith and with due diligence have been
met.10 (Barber, supra, 390 U.S. at pp. 723-725; Sandoval, supra, 87 Cal.App.4th
at p. 1444; St. Germain, supra, 138 Cal.App.3d at p. 517.)
Mindful of the foregoing authorities, we now consider whether the
admission of Portillo?s preliminary hearing testimony at trial was erroneous or
9
In Smith, supra, 30 Cal.4th 581, there was no indication of an applicable
treaty or agreement between Japan and the United States.

10
Relying on concessions made by the defendant, one California decision
stated bluntly that no showing of due diligence is required if the witness is a
foreign citizen outside of the United States at the time of trial. (People v. Denson,
supra, 178 Cal.App.3d at pp. 791, 793.) Unavailability in the constitutional sense,
however, requires a showing that the prosecution acted in good faith, and the
lengths to which the prosecution must go to produce a witness in a given set of
circumstances is a question of reasonableness.
17


violated defendant?s constitutional right of confrontation. In assessing whether or
not Portillo was properly found unavailable, we review the trial court?s factual
findings under the substantial evidence standard and independently review
whether the facts demonstrate prosecutorial good faith and due diligence.
(Cromer, supra, 24 Cal.4th at pp. 902-903.)
Here, the evidence concerning Portillo?s unavailability as a witness was as
follows. District Attorney Investigator Ed Wood took the stand on Wednesday,
May 30, 2007, and testified that on May 25, the Friday before, he learned from
special agent Mark Johnston of the United States Department of Homeland
Security that Portillo had been deported to his native El Salvador in September
2006. On Tuesday, May 29, at 8:30 a.m., Wood requested that the foreign
prosecution investigator at his office, Art Zorilla, contact law enforcement
authorities in El Salvador in an attempt to locate Portillo in that country. Zorilla
did so, but Portillo was not found. Zorilla informed Wood that, even if Portillo
could be located in El Salvador, there was no treaty between the two countries
providing for Portillo?s extradition or return to the United States. (See ante, fn. 2.)
Wood had made additional efforts to locate Portillo at the residence and in the
region where he last lived in California and to track down any information
available in the law enforcement database. Wood discovered there were warrants
out for Portillo?s arrest, but ascertained no information indicating that Portillo had
returned to California. Unlike the situation in Smith, supra, 30 Cal.4th 581,
defendant made no hearsay objection to any of Wood?s testimony.
After hearing this testimony, the trial court determined that Portillo
?certainly was deported.? The court further stated that ?it would be speculative to
come up with further efforts that could be fruitful in obtaining his presence,
especially given the testimony we heard with regard to the relationship between El
Salvador and this country with regard to extradition.? Concluding the prosecution
18


had acted with due diligence, the trial court ruled Portillo?s preliminary hearing
testimony admissible.
Reviewing the record, we observe that Wood?s testimony amply supported
the trial court?s finding that Portillo had been deported to his native El Salvador in
September 2006, about three months after the preliminary hearing and more than
eight months before defendant?s trial. Wood?s testimony also provided substantial
support for the court?s determination that Portillo was not in California at the time
of trial, but was in El Salvador and therefore beyond the court?s own process.11
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.
In finding to the contrary, the Court of Appeal emphasized that the
prosecution made no effort to locate Portillo until the last business day before
defendant?s trial was scheduled to start, thus leaving insufficient time for an
adequate investigation of his whereabouts.12 The court attributed no significance
11
Defendant complains no effort was made to contact the consulate or
embassy of El Salvador to confirm Portillo?s presence and/or residence in that
country. As indicated, defendant made no objection whatsoever to Wood?s
testimony at the hearing.
12
Wood testified he started his search for Portillo on May 25, 2007, the
Friday (before a three-day weekend) when both parties announced they were ready

(footnote continued on next page)
19


to Portillo?s deportation or to the absence of any applicable treaty or agreement
between El Salvador and the United States, instead reasoning: ?Portillo was
deported to El Salvador in September 2006, presumably a not unexpected event.
But even if he had not been deported, what was the likelihood he would still live
in the same Civic Center Drive apartment he occupied a year earlier? What was
the probability that the flyer disseminated one business day before the trial was
scheduled to start would have resulted in Portillo?s arrest in time for him to testify
at the trial? It took Wood less than a day to learn that Portillo had been deported.
Had this been discovered a few weeks before the trial, efforts could have been
made to obtain his return to this country and, if such efforts proved unsuccessful,
the diligence requirement might have been satisfied. Furthermore, it is not
unheard of that a deported felon returns to the United States. Again, the
prosecution did not give itself enough time to permit an adequate investigation of
his whereabouts.?
The Court of Appeal?s analysis is flawed in several respects. First, its
characterization of Portillo?s deportation as a ?not unexpected event? has no
evidentiary foundation in the record. Indeed, defendant has never claimed that the
prosecution knew or should have known of Portillo?s immigration status or of any
pending deportation issue. Ordinarily, ?[t]he prosecution is not required ?to keep
?periodic tabs? on every material witness in a criminal case . . . .? [Citation.]?
(People v. Wilson, supra, 36 Cal.4th at p. 342.)

(footnote continued from previous page)

for trial. At that time, the trial was scheduled to begin the following Tuesday,
May 29, 2007, although it was trailed one more day.
20


Second, although the timing and competence of the prosecution?s efforts to
locate the absent witness within the jurisdiction are important factors in measuring
good faith and due diligence (e.g., People v. Wilson, supra, 36 Cal.4th at pp. 341-
342; Cromer, supra, 24 Cal.4th at pp. 903-904), the Court of Appeal failed to give
sufficient weight to the information learned by the prosecution during its search
efforts, i.e., that Portillo, a foreign national, had been deported eight months before
to a country that lacked an agreement with the United States for procuring a
witness?s attendance at a trial in this state. Thus, even assuming the prosecution
should have started its search weeks earlier, further efforts to locate Portillo in
California would have been futile and hence were unnecessary. (Ohio v. Roberts,
supra, 448 U.S. at p. 74 [futile acts not required]; Smith, supra, 30 Cal.4th at pp.
610-611; see People v. Cavazos (1944) 25 Cal.2d 198, 201 [when military
authorities inform the prosecution that witnesses in the armed forces were outside
the court?s jurisdiction, ?it would have been an idle act to require further inquiry
or search in this state?].)13
Third, the Court of Appeal?s suggestion that Portillo might have returned
on his own to California was pure conjecture. Wood?s search efforts turned up no
indication that Portillo had returned from El Salvador. A check of the law
enforcement database, and Wood?s discovery that warrants for Portillo remained
unexecuted, confirmed that Portillo had not had any contact with authorities.14
13
Our conclusion on this point disposes of defendant?s specific contention
that good faith and due diligence obligated the prosecution to track down and
speak with Portillo?s last known attorney, his local KPC gang associates, and his
child, mother, and sister living in Santa Ana, California.
14
Portillo made clear at the June 19, 2006, preliminary hearing that he had
been on probation before, that he would go to great lengths to avoid being charged
with a probation violation, and that he understood he would be placed on three

(footnote continued on next page)
21


Moreover, a woman living at Portillo?s former address did not recognize him, and
distribution of wanted flyers in the region resulted in no helpful information. As
the dissenting justice below observed, while ?deported felons may return to the
United States, . . . the facts here do not support this assumption.?
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.15 No
matter. It is speculative, in the first instance, to maintain that Portillo would have
been found in El Salvador, if only the prosecution had learned earlier of his
deportation. The record contains no indication that, given more time, the
INTERPOL agents in El Salvador could and would have tried to do more to locate
Portillo, beyond what they did. Finally, and in any event, even assuming Portillo
had been found, there was no international agreement or established procedure for
procuring further testimony from the absent Salvadoran resident or for obtaining
his presence at defendant?s trial.
Relying on United States v. Bourdet (D.D.C. 2007) 477 F.Supp.2d 164,
defendant contends that, had Portillo been located in El Salvador, the prosecution
could have secured his presence in the United States outside the terms of any
treaty. Even had Portillo been found, defendant?s reliance on Bourdet is

(footnote continued from previous page)

years of formal probation on a pending felony evading charge if he agreed to
testify truthfully at the preliminary hearing. Portillo?s own words gave rise to the
reasonable inference that he would be highly reluctant to return to the United
States to face a likely probation violation charge for failing to report to his
probation officer while absent from the United States.
15
The Court of Appeal does not indicate what date it believed the
prosecution?s search for Portillo should have started.
22


misplaced. In Bourdet, the defendants were Guatemalan nationals who were
arrested in El Salvador for alleged drug dealing and then flown to the United
States. (Bourdet, at pp. 169-170.) Agents of the United States Drug Enforcement
Administration had coordinated the arrests with the Salvadoran authorities, but did
not direct or otherwise control the arrests. (Id. at p. 170.) On appeal, the
defendants contended they were brought from El Salvador to the United States in
violation of international treaties and United States law. (Id. at p. 177.) The
United States government conceded that the defendants were not ?extradited?
from El Salvador, and that their ?presence in the United States was acquired
outside the terms of the treaty? between the two countries. (Ibid.) Despite this
concession, Bourdet determined the government?s method of rendition did not
violate the treaty. (Id. at p. 178.) Nothing in Bourdet has any bearing on the
prosecution?s obligation of good faith in the confrontation clause context.

CONCLUSION AND DISPOSITION
For all the foregoing reasons, we conclude the trial court properly admitted
Portillo?s preliminary hearing testimony at defendant?s trial. Based on the
undisputed testimony presented to that court, we agree the prosecution satisfied its
obligations of good faith and due diligence in demonstrating Portillo?s
unavailability as a witness, and find the Court of Appeal erred in determining
otherwise. The judgment of the Court of Appeal is reversed, and the matter is
remanded to that court for further proceedings consistent with our opinion.

BAXTER, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
23





CONCURRING OPINION BY WERDEGAR, J.
As the majority frames the issue, this case requires that we consider what
prosecutorial efforts will sustain a finding of unavailability when the absent
witness was not in this jurisdiction but in another country. (Maj. opn., ante, at
p. 10.) The majority concludes that if evidence supports the trial court?s finding
that the witness was out of the country and in a country for which no treaty exists
for the production of witnesses for trials in the United States, the prosecution has
?fulfilled its obligation of good faith and due diligence? (id. at p. 19) in
demonstrating the witness?s unavailability; consequently, the trial court properly
admitted Portillo?s preliminary hearing testimony (ibid.; see also id. at p. 24). I
concur that the trial court properly admitted Portillo?s preliminary hearing
testimony at defendant?s trial. I do so, however, not on grounds the prosecution
exercised due diligence, but on grounds of harmless error; as the majority states,
?even assuming the prosecution should have started its search weeks earlier,
further efforts to locate Portillo in California would have been futile.? (Id. at
p. 21.)
The facts of this case are analogous to a situation in which the prosecution
is unjustifiably late in beginning its search for a witness, but then discovers the
witness died several months earlier. In that situation, even had the prosecution
commenced its search in a timely manner, the result would be the same. Hence,
1


any dereliction of the prosecution?s duty to exercise due diligence to procure the
witness?s attendance at trial would be harmless.
The same is true here. Evidence showed Portillo had been deported to El
Salvador eight months before trial. The prosecution did not begin looking for him
until the last court day before the trial was scheduled to begin. But even had the
prosecution begun its search several days or weeks earlier, it would merely have
discovered Portillo was out of the country and immune from the court?s process.
In short, even had the prosecution been reasonably diligent, the result would have
been the same.
Although I thus agree with the majority?s decision to reverse the Court of
Appeal?s contrary ruling, I do not join that part of its analysis that concludes the
prosecution satisfied its obligation of exercising due diligence in seeking to locate
Portillo. As the majority relates, trial was scheduled for March 7, 2007, but was
continued two months to May 21 because neither side was ready. On and after
May 21 the trial was trailed three times, but by Friday, May 25, it was fairly
certain the trial would commence on the next court day, Tuesday, May 29. Only
then did investigator Wood begin to search for Portillo. ?We have said that the
term ?due diligence? is ?incapable of a mechanical definition,? but it ?connotes
persevering application, untiring efforts in good earnest, efforts of a substantial
character.? ? (People v. Cromer (2001) 24 Cal.4th 889, 904, italics added.) In
measuring the prosecution?s diligence, the timeliness of the search and the
importance of the witness?s proffered testimony are important factors. (Ibid.)
In my view, the prosecution?s belated efforts to locate Portillo?its star
witness?do not satisfy this rigorous standard. Rather, in 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
2


to locate Portillo would have been futile, the majority concludes the prosecution?s
efforts, however meager, were sufficient. But harmless error is not due diligence.
In light of the overall importance of the right to confront adverse witnesses,
I cannot join the majority?s holding that the prosecution?s efforts in this case
demonstrated good faith and due diligence. But because on the facts of this case
the prosecution?s lack of diligence was harmless, I concur in the judgment.
WERDEGAR, J.
3



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

Name of Opinion People v. Herrera
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. filed 5/26/09 ? 4th Dist., Div. 3
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S171895
Date Filed: July 1, 2010
__________________________________________________________________________________

Court:

Superior
County: Orange
Judge: Daniel J. Didier

__________________________________________________________________________________

Attorneys for Appellant:

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

__________________________________________________________________________________

Attorneys for Respondent:

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.



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

Waldemar D. Halka
P.O. Box 99965
San Diego, CA 92169
(858) 273-8626

Kelley A. Johnson
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-3155