Ct.App. 1/5 A117076 Sonoma County Super. Ct. No. SCR487837 Judge: Lawrence G. Antolini.
The opinion of the court was delivered by: Werdegar, J.
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.
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 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,*fn2 who claimed to be a percipient witness to the stabbing. 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 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.
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 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, 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, ...