Filed 5/4/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

ALBERT TORRES,

Defendant and Appellant.

 B295043 

 (Los Angeles County

 Super. Ct. No. NA103887)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, James D. Otto, Judge. Reversed.

Steven A. Brody, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Acting 

Senior Assistant Attorney General, Paul M. Roadarmel, Jr., 

Supervising Deputy Attorney General, and Stephanie A. Miyoshi, 

Deputy Attorney General, for Plaintiff and Respondent.

____________________
2

We publish this opinion hoping management in 

prosecutorial offices will forestall more mishaps of this sort.

The situation involves witness deportation, as follows. 

State prosecutors would like a witness to testify at a preliminary 

hearing, but the witness is in federal immigration custody. State 

prosecutors negotiate the witness’s appearance at the hearing, 

but they know the federal government might deport the witness 

after the hearing and before trial. They hope to admit the 

preliminary hearing testimony at trial under the former 

testimony exception to the hearsay rule. This exception requires 

the witness to be “unavailable.” To satisfy the constitutional 

guarantee of confrontation, case law requires prosecutors to use 

“due diligence” to make the witness physically available for crossexamination at trial.

What, precisely, does due diligence demand of prosecutors?

The answer was laid down in 2012 by a comprehensive and 

well-reasoned decision called People v. Roldan (2012) 205 

Cal.App.4th 969, 975–985 (Roldan). 

Roldan overturned an attempted murder conviction 

because state prosecutors did not use due diligence to try to delay 

witness deportation. (Roldan, supra, 205 Cal.App.4th at p. 985.)

Roldan held that, before invoking the former testimony 

exception, prosecutors should react appropriately to the 

impending deportation risk. (Roldan, supra, 205 Cal.App.4th at 

pp. 979–980.) Roldan counseled four logical steps: alert the 

defense to the risk; videotape the preliminary hearing testimony; 

use judicial measures to try to delay deportation; and consider an 

array of other specific measures. (Id. at pp. 980–985.)

At oral argument in this case, the prosecution conceded 

prosecutors were simply unaware of Roldan. They did not 
3

comply with it. At trial, the court admitted the witness’s former 

testimony. Applying Roldan, we reverse.

I

The prosecution accused Albert Torres of stabbing Ramon 

Quinones on March 29, 2016. The two counts were attempted 

murder and assault with a deadly weapon. There were gang 

allegations on both counts, as well as other allegations not 

pertinent here. 

The preliminary hearing was on August 2, 2016.

Quinones testified at the preliminary hearing he had 

known Torres all his life, they belonged to the same gang, and 

Torres stabbed him. Torres was their gang leader but tried to kill 

Quinones because Torres thought Quinones was attempting a 

coup. 

Another witness at the preliminary hearing was Alex 

Hernandez. Hernandez testified he saw Torres and Quinones 

face off for a fight in an alley. Then Quinones backed up and ran 

off, bleeding from knife wounds. Quinones told Hernandez 

Torres had “gotten him with a knife . . . .” Hernandez drove 

Quinones for medical treatment.

For this appeal, the crucial order was the pretrial ruling 

about the admissibility of Hernandez’s testimony from the 

preliminary hearing. 

We recount this pretrial ruling as it evolved, day by day, 

and then we summarize the relevant portion of the trial by jury.

The pretrial conference began on July 18, 2017, which was 

day nine of 10 for trial. The court and counsel were all new to the 

case. None were involved in the preliminary hearing. 
4

Counsel and the court discussed a sizeable range of pretrial 

matters, including the admissibility of Hernandez’s preliminary 

hearing testimony. 

Torres’s new counsel told the trial judge that apparently 

Hernandez had been in the custody of Immigration and Customs 

Enforcement (ICE) during the August 2016 preliminary hearing 

and that in February 2017 ICE had deported Hernandez to 

Guatemala, which does not have a pertinent treaty with the 

United States. Torres argued the prosecution should have made 

reasonable efforts to prevent or delay Hernandez’s deportation. 

The prosecutor told the court his office file showed 

“arrangements had to be made with ICE at the time of the prelim 

to even have [Hernandez] brought into court” for that hearing. 

The prosecutor’s office notes suggested ICE interposed “a fair 

amount of push-back” because “ICE was not willing to cooperate 

with us in bringing the witness to court,” and “communication 

had to go relatively high up the chain of command at ICE to even 

have them agree to bring this witness here” for the preliminary 

hearing. The prosecutor reported that, when he began preparing 

for trial, he contacted ICE and learned Hernandez had been 

deported to Guatemala one week earlier. The prosecutor’s office 

then worked, unsuccessfully, to find Hernandez or to get him 

back from Guatemala. The prosecutor said the U.S. and 

Guatemala do not have a bilateral treaty or “anything like a 

mutual agreement of any sort whatsoever.” 

The prosecutor cited People v. Herrera (2010) 49 Cal.4th 

613 (Herrera) as pertinent, arguing that, under that precedent, 

his efforts to procure the witness after deportation established 

due diligence. 
5

Torres responded Hernandez had been in ICE custody at 

the time of the preliminary hearing in August 2016 and was not 

deported until seven months later in February 2017. The 

prosecution “by their own admission” thus had cooperated with 

ICE to get Hernandez to the preliminary hearing in August 2016. 

According to Torres, this cooperation, as well as the significant 

delay before deportation, showed further efforts likely would have 

been successful in delaying deportation until trial. 

The next day, on July 19, 2017, the court held an 

evidentiary hearing on the issue. The court heard from Earl 

Ackermann, an investigator from the prosecutor’s office, who had 

tried and failed to locate leads on Hernandez after deportation. 

The prosecution also called Jason Henshaw, an ICE 

deportation officer. Henshaw recounted that Hernandez had 

entered ICE custody on June 16, 2016, and ultimately left the 

U.S. on March 2, 2017, from Arizona. 

Summarizing his experience with ICE, Henshaw testified 

(with our emphasis) that “[w]hen an alien is brought into our 

custody, we usually run their criminal record for wants and 

warrants, and we’ll reach out to the agency that usually has a 

want or want [sic] on that subject, if they want to take custody of 

that subject.” 

The court sustained the prosecution’s objections to the ICE 

officer’s further testimony on this score. The defense gave up its 

efforts to get more information: “I know yesterday Your Honor, 

[you] made a comment you wanted to know whether it’s possible 

for that person to be held [without being deported]. I’m trying to 

get that answer. Perhaps this witness doesn’t have that 

information, so it’s the People’s burden, so I have no further 

questions.” 
6

The parties then argued the unavailability issue to the 

court. Torres said the defense, before deportation, received 

neither notice Hernandez was subject to deportation nor notice 

that ICE had him in custody pending deportation. 

The prosecutor agreed the defense never got notice “of 

possible deportation or ICE custody.” 

Neither attorney ever cited the 2012 Roldan decision to the 

trial court.

Rather, the prosecutor stated, “I’m not aware of a case 

stating that the People have some sort of obligation to interfere 

with the purview of the federal government as it relates to 

deportation proceedings to stop or halt the deportation of a 

convicted felon . . . . I’m not aware of a law that it’s the People’s 

responsibility to put on the record that a person may be deported 

. . . .” 

Roldan was a case of the sort the prosecutor said “I’m not 

aware of . . . .” The prosecutor made this statement in 2017. The 

court decided Roldan in 2012.

After ordering that jurors be brought for the beginning of 

the trial that afternoon, the court took the daily noon break. 

The hearing on the unavailability issue continued the 

following day, which was July 20, 2017. The prosecution called 

the investigating officer on the case, who testified Torres’s thencounsel (who had been retained for the preliminary hearing only) 

had been present at the preliminary hearing when the prosecutor 

told the judge she was “unsure of Mr. Hernandez’s future 

availability due to his current immigration status at that time.” 

The investigating officer testified he discovered Hernandez 

was in ICE custody when he tried to serve him with a subpoena 

for the preliminary hearing. 
7

The officer testified he made no efforts to delay 

Hernandez’s deportation. 

After this testimony, the defense continued to maintain the 

prosecution had duties both to ensure the witness was not 

deported and to notify the defense so it could do the same. The 

defense also argued that, at a minimum, the testimony should 

have been videotaped. “We’ve done that often as a conditional 

exam.” 

The parties submitted the matter. The court commented 

that it had carefully considered everything that had been argued, 

including the cases the prosecution cited, particularly the Herrera

case. 

The court found the prosecution had fulfilled its obligation

of good faith and due diligence, that Hernandez was unavailable 

under Evidence Code section 240, and that the former testimony 

exception allowed the prosecution to introduce Hernandez’s 

testimony from the preliminary hearing. 

The court then presided over jury selection and the trial 

began.

At trial, the eyewitness accounts diverged dramatically in 

vital respects. There was some limited common ground. 

The limited common ground was there had been a fight in 

an alley. Three people were there: Quinones, Torres, and 

Hernandez. Someone stabbed Quinones, who ran away and 

ended up in the hospital. 

Beyond this common ground, at trial there was sharp 

conflict over who stabbed Quinones. 

There were only two eyewitnesses to the stabbing: 

Hernandez and Quinones. Torres never testified. Hernandez 

had been deported and did not appear at trial. The prosecution 
8

introduced testimony from the deported Hernandez by reading 

the preliminary hearing transcript aloud to the jury. Quinones 

testified in person to the jury.

The jury heard opposing stories from the only two 

eyewitnesses: Hernandez and Quinones. We summarize the 

radical conflict.

The preliminary hearing transcript recited Hernandez’s 

statements that he had been 60 feet away when he saw Torres 

and Quinones facing off for a fight. Then Hernandez observed 

Quinones stumble backwards and take off running. Hernandez 

noticed Quinones was bloody: “He was cut.” Quinones told 

Hernandez Torres had “gotten him with a knife . . . .” 

We now recount Quinones’s July 25, 2017, trial testimony, 

which the prosecution described in closing argument as “crazy,” 

“nonsense,” and “a bunch of crazy stuff.” Recall: Quinones was 

the victim of the crime.

At trial, Quinones testified he was a member of the 

Eastside Longos gang. Quinones knew Torres but at trial 

claimed not to know if Torres also belonged to Eastside Longos. 

Shortly after that testimony, however, Quinones said he and 

Torres did “belong to a gang.”

According to Quinones, the fight started when he and 

Hernandez began to argue. Quinones, Hernandez, and Torres all 

went to the alley. Hernandez threw a punch at Quinones. 

Quinones punched back at Hernandez. Torres was just standing 

there. Then Quinones felt he had been stabbed and he took off 

running.

At trial, Quinones gave jumbled statements about who had 

stabbed him. Quinones’s version of events changed moment by 

moment. We do our best to detail his trial performance.
9

At the preliminary hearing, Quinones said Torres stabbed 

him. But at trial Quinones said his earlier testimony had been “a 

complete lie” and that he had been “under the influence” then. “I 

was drugged up. I was real high.” Quinones also testified he had 

been under the influence of methamphetamine and marijuana 

the day he got stabbed and spoke to police. Back then, Quinones 

testified, he used methamphetamine “[e]very day.” He was “a 

heavy methamphetamine user . . . .” Using methamphetamine 

was “an everyday thing.” 

At trial, Quinones testified he was unsure who stabbed 

him. 

Then Quinones said, at the time of the stabbing, he thought 

it was Torres who stabbed him. 

But then Quinones testified he thought maybe Hernandez 

stabbed him. Quinones said he owed Hernandez money for 

drugs, which made Hernandez mad at Quinones. 

Quinones next testified “I have no idea who stabbed me.” 

Then Quinones testified Hernandez stabbed him. 

Then Quinones testified he did not know who stabbed him. 

The prosecutor asked for a sidebar and told the court he 

wanted to play Quinones’s police interview, “given how 

inconsistent the victim [Quinones] has been . . . .” The prosecutor 

told the court, “The thing is [Quinones] has a completely new 

story of what happened here today; that is completely 

inconsistent with what he told the police. . . . [T]here has been

such an about face in his demeanor in his description of the 

events . . . .” 

Quinones then testified he told police Torres stabbed him 

because Quinones was trying to protect Hernandez, who was a 
10

“homie” from Eastside Longos. Quinones also said police 

pressured him into blaming Torres. 

The jury convicted Torres of attempted premeditated 

murder and assault with a deadly weapon. The jury rejected 

gang allegations but found true the enhancements about great 

bodily injury and a deadly weapon.

II

At trial, Roldan was, or should have been, the governing 

law. (Roldan, supra, 205 Cal.App.4th at pp. 975–985.) This 

thoughtful and thorough 2012 decision is central to our analysis. 

First we recount Roldan in detail. Then we apply it, because we 

agree with it.

A

The Roldan case arose when Juan Roldan fired three shots 

at Sabas Barrera in 2006. (Roldan, supra, 205 Cal.App.4th at p. 

973.) The wounds hospitalized Barrera until spring 2007. (Ibid.) 

Police arrested Barrera in 2008 for a probation violation. (Ibid.) 

Barrera served a five-month sentence ending in December 2008 

but remained in custody nine more months on a federal 

immigration hold, until Roldan’s preliminary hearing in 

September 2009. (Ibid.) Barrera testified at the preliminary 

hearing and then “was promptly released to federal authorities 

and deported to Mexico.” (Id. at p. 976.) 

Roldan’s trial began in February 2010. (Roldan, supra, 205 

Cal.App.4th at p. 976.) Over Roldan’s protest, the trial court 

admitted Barrera’s testimony from the preliminary hearing. (Id. 

at p. 978.) The jury convicted Roldan. (Id. at p. 975.)

The Court of Appeal reversed. (Roldan, supra, 205 

Cal.App.4th at p. 987.) It ruled former testimony from a 

preliminary hearing is inadmissible unless the witness is 
11

“unavailable,” which required Roldan’s prosecutors to use due 

diligence to have Barrera testify at trial in person. (Id. at p. 979; 

see Evid. Code, §§ 1291 [hearsay exception for former testimony], 

240 [defining “unavailable”].) 

The Roldan court independently reviewed whether the 

prosecution’s effort amounted to due diligence. (Roldan, supra, 

205 Cal.App.4th at p. 980.) The court recited the burden is on the 

government to prove it used due diligence to get a witness to 

trial. (Ibid.) 

Roldan began its analysis from the premise state 

prosecutors have no ability to block deportation if the federal 

government is determined to deport someone swiftly. (Roldan, 

supra, 205 Cal.App.4th at p. 980.) Unquestionably, federal power 

is supreme. But Roldan explained state prosecutors could take 

four interstitial steps that might be effective in various ways and 

that are germane to a judicial evaluation of whether the 

prosecution has been diligent. (Id. at pp. 980–985.).

These four steps are these:

1. Before the preliminary hearing, tell the defense about 

the deportation risk.

2. Videotape the preliminary hearing testimony.

3. Try judicial remedies.

4. Try other specific measures. 

We review Roldan’s four steps in more detail.

First, the prosecution should tell the defense before the 

preliminary hearing if it knows about a risk of deportation. This 

information would help the defense in two ways: (1) by allowing 

the defense to prepare a cross-examination complete enough for 

trial as well as for just the preliminary hearing, and (2) by 

permitting the defense to videotape the testimony. (Roldan, 
12

supra, 205 Cal.App.4th at pp. 976, 981, 985.) Videotaping can 

help combat the central problem with hearsay testimony, which 

is jurors’ inability to sit face-to-face and to judge witness 

credibility for themselves during direct and cross-examination. 

(Id. at p. 981.) 

Second, the prosecution should make its own effort to 

videotape the testimony. (Roldan, supra, 205 Cal.App.4th at pp. 

980–981.)

Third, the prosecution can attempt to secure the witness’s 

trial attendance by pursuing state judicial remedies, such as an 

order under section 1332 of the Penal Code detaining a material 

witness. (Roldan, supra, 205 Cal.App.4th at pp. 981–983.) The 

Roldan court was unable “to understand why the prosecution 

would not have sought such an order; its position would certainly 

be stronger today if it had tried and been refused.” (Id. at p. 982.)

Fourth, the prosecution can try a range of other measures, 

including informal efforts to delay deportation until after trial. 

(Roldan, supra, 205 Cal.App.4th at pp. 983–985.) Federal 

regulations recognize the federal interest is generally to delay 

deporting witnesses needed in pending criminal cases. (Id. at p. 

983; 8 C.F.R. §§ 215.2, 215.3 (2019).) When witnesses to state 

crimes are in federal custody, moreover, federal courts have the 

power to issue writs of habeas corpus ad testificandum at the 

request of state prosecutorial authorities. (Roldan, supra, 205 

Cal.App.4th at pp. 983–984.)

Furthermore, many informal contacts exist between federal 

and state law enforcement officials. These law enforcement 

officials generally share law enforcement objectives. If state 

prosecutors kept a particularized record of their earnest efforts to 
13

exploit these contacts, this record would support claims of due 

diligence. (Roldan, supra, 205 Cal.App.4th at pp. 984–985.)

The Roldan decision also listed other measures that 

prosecutors could take:

● Subpoena the witness who may be deported.

● Before deportation, give that witness written notice 

about the trial. 

● Impress upon witnesses they are material witnesses 

and get their assurance they will return for trial.

● Give these witnesses contact information so they can 

stay in touch with authorities here.

● Provide witnesses with information and resources to 

facilitate their reentry to the United States to testify 

at trial. 

● Obtain (or make a record of attempts to obtain) 

reliable contact information about family in the 

United States and in the nation to which the witness 

will be deported. (Roldan, supra, 205 Cal.App.4th at 

p. 984.) 

The Roldan decision acknowledged these measures 

ultimately might fail to delay deportation. (Roldan, supra, 205 

Cal.App.4th at pp. 984–985.) The decision also clarified no one 

step was necessarily mandatory. (See id. at pp. 980–985.) 

Rather, a reviewing court would take the record as a whole before 

determining whether the prosecution had exercised due diligence 

determination. But the prosecution “cannot simply throw up its 

hands and do nothing when faced with the prospect of one of its 

witnesses being deported or leaving the country on his own 

accord. Instead, it must undertake reasonable efforts to preserve 
14

the defendant’s constitutional right to be confronted with the 

witnesses against him.” (Id. at p. 980.)

Roldan repeatedly cited the Herrera decision. (E.g., 

Roldan, supra, 205 Cal.App.4th at p. 983.) Herrera admitted 

former testimony from a deported witness where there was no 

evidence the prosecution knew or should have known of the 

witness’s immigration status or of any pending deportation issue. 

(Herrera, supra, 49 Cal.4th at p. 630.) Ordinarily, the 

prosecution is not required to keep periodic tabs on every 

material witness in a criminal case. (Ibid.) Roldan held the 

situation is different when the prosecution knows witness 

deportation is likely. (Roldan, supra, 205 Cal.App.4th at p. 980.) 

B

This case is like Roldan. In both instances, prosecutorial 

efforts fell short of due diligence. 

The prosecutors in both cases searched for the deported 

witness after deportation. But the requirement of due diligence 

includes the duty to make reasonable efforts before deportation 

when, as here, the prosecution knows there is a risk of 

deportation. The prosecution cannot establish due diligence if it 

fails in its pre-deportation duty. (Roldan, supra, 205 Cal.App.4th 

at p. 980.)

In this case, the prosecution effectively did nothing to 

comply with Roldan. The prosecutors did not satisfy Roldan by 

mentioning, off the record, they were “unsure of Mr. Hernandez’s 

future availability due to his current immigration status at that 

time.” As the prosecution conceded at oral argument on appeal, 

“probably a lot of people are illegal” but are not actively in 

deportation proceedings.
15

C

This case differs from Roldan in two ways. Both 

differences favor Torres. First, the prosecutors in Roldan did 

more to secure the witness than did the prosecution in this case. 

Second, the federal government showed less willingness to 

cooperate with state prosecutors in Roldan than in this case. We 

explain. 

1

The prosecution in Roldan did something to delay 

deportation, but the prosecution in this case did nothing.

In Roldan, both the prosecutor and her investigator 

contacted federal immigration officials to find “some type of 

remedy” to delay deportation of witness Barrera. (Roldan, supra, 

205 Cal.App.4th at p. 977.) The investigator could not remember 

whom he contacted or when he took this action, but the 

prosecutor’s office did make an effort to delay Barrera’s 

deportation. (Ibid.)

In this case, the record before deportation is of 

prosecutorial inaction. The prosecution’s brief in this court 

admits the investigating officer “did not do anything to ensure 

that Hernandez would not be deported.” Nor is there other 

evidence of prosecutorial efforts to delay Hernandez’s departure 

or to videotape his testimony at the preliminary hearing.

2

Second, this record shows more federal willingness to 

cooperate with state prosecutors than was evident in Roldan. In 

Roldan, ICE told a state investigator “Barrera was going to be 

deported, and there was nothing [the state investigator] could do 

about it.” (Roldan, supra, 205 Cal.App.4th at p. 977.) By 

contrast, in this case the ICE deportation officer testified (with 
16

our emphasis) that “[w]hen an alien is brought into our custody, 

we usually run their criminal record for wants and warrants, and 

we’ll reach out to the agency that usually has a want or want [sic]

on that subject, if they want to take custody of that subject.” The 

court sustained the prosecution’s objections to the ICE officer’s 

further testimony on this topic. Federal attitudes about 

cooperation probably will vary, but this factor on this record 

favors Torres.

D

In sum, Roldan controls our analysis because the facts 

about prosecutorial diligence are weaker here than they were in 

Roldan, where the appellate court held for the defense. On 

lopsided facts, we follow Roldan’s guidance.

E

The prosecution incorrectly contends the Roldan error was 

harmless beyond a reasonable doubt, which implicates the federal 

constitutional right of confrontation. The parties agree the 

Chapman standard governs. (See Chapman v. California (1967) 

386 U.S. 18 (Chapman).) Chapman rejected the notion of

automatic reversals for all federal constitutional errors, 

regardless of the facts and circumstances. Rather, some federal 

constitutional errors in the setting of a particular case are so 

unimportant and insignificant that they may be deemed 

harmless. (Chapman, supra, 386 U.S. at pp. 21–22.)

The question thus is whether there is a reasonable 

possibility the evidence complained of might have contributed to 

the conviction. (Chapman, supra, 386 U.S. at p. 23.) 

The answer is yes. If we subtract Hernandez’s hearsay 

testimony from the trial evidence, this leaves only one testifying 

eyewitness to the stabbing: victim Quinones. The prosecution
17

described Quinones’s trial performance as “a bunch of crazy 

stuff.” We already have recounted Quinones’s uncontradicted 

vacillation and uncontradicted drug use. We agree with the 

prosecution’s description. Quinones was too crazy a witness to be 

the sole foundation for a conviction for attempted murder.

Fear of gang retribution is the probable reason Quinones 

recanted his early statements identifying Torres as the stabber. 

Recantations are common in gang and domestic violence cases. 

But between the methamphetamine and his continuously 

evolving contradictions, Quinones proved himself an impressively 

unreliable witness. Without Hernandez, the confluence of facts 

at trial did not establish Torres’s guilt for these crimes beyond a 

reasonable doubt.

In one brief paragraph, the prosecution’s brief to us makes 

a halfhearted effort to marshal proof of guilt. But this cursory 

showing is not proof beyond a reasonable doubt.

Torres repeatedly asked an officer whether, “if there’s no 

victim, [do] I get out of jail?” Torres’s questions tend to 

incriminate him of victimizing someone in some way, but this is 

proof of neither attempted murder nor assault with a deadly 

weapon. For this reason, perhaps, the prosecution devotes one 

sentence to this argument. 

The prosecution notes Torres received a text message from 

someone else saying Quinones was “no good in the gang culture 

anymore” and “should be targeted.” The reply on Torres’s phone 

was “Been trying to let you know.” This evidence may have been 

helpful to the prosecution when taken together with a mass of 

other proof, but by itself it is too ambiguous to be proof of these 

crimes beyond a reasonable doubt.
18

The prosecution argues the severity of the knife wounds 

shows an intent to kill. This evidence, however, does not show 

who inflicted these wounds.

Evidence showed Torres’s phone was in the vicinity of the 

stabbing, but the key question is not whether Torres was in the 

alley—all agreed he was—but rather whether the stabber was 

Torres. The phone evidence did not identify the stabber. 

The prosecution cites no precedent for finding harmless 

error on facts like these.

“[I]t is completely impossible for us to say that the State 

has demonstrated, beyond a reasonable doubt, that [Hernandez’s 

testimony] did not contribute to [Torres’s] convictions.” 

(Chapman, supra, 386 U.S. at p. 26.)

III

Torres makes a separate sentencing argument. We note its 

validity to ensure the parties do not repeat the error in this case. 

Torres waived jury for a bifurcated trial on the truth of the 

allegations he had been convicted of prior offenses. Docket 

entries show the court never held this trial. This trial will be 

necessary if Torres is convicted on these charges.

DISPOSITION

The judgment is reversed and remanded for further 

proceedings consistent with this opinion.

WILEY, J.

I concur: 

STRATTON, J.
1

People v. Torres 

B295043

BIGELOW, P.J., Dissenting in part, and concurring in part:

When first arrested, Torres said “May I ask you a 

question? . . . . If the victim did not want to be a victim would [I] 

be let go?” He asked police the same question two more times. 

As it turned out, this case played out just as Torres wanted, as it 

does in many gang cases that go to trial: the victim recanted his 

original statements to police and his preliminary hearing 

testimony identifying Torres as his lone attacker, owing to his 

fear of gang retaliation. The jury saw through the scheme and 

convicted. Unfortunately, the majority does not. Instead, it 

answers Torres’s repeated question with an unequivocal yes. 

I would not. 

To reach its decision, the majority applies an exception to 

the general rule that prosecutors need not keep periodic tabs on 

witnesses, most recently discussed in People v. Roldan (2012) 205 

Cal.App.4th 969 (Roldan), and finds the prosecution had a duty 

to prevent Hernandez from being deported. In doing so, it 

significantly expands the holding in Roldan, as well as the 

California Supreme Court precedent in People v. Louis (1986) 42 

Cal.3d 969 (Louis), upon which Roldan was based. The majority 

also disregards applicable United States Supreme Court 

authority in Ohio v. Roberts (1980) 448 U.S. 56,1 which directs 

that the prosecution need not make efforts for which there is a 

“great improbability” of locating a witness and producing him at 

trial. (Id. at pp. 75–76.) In addition, the majority finds—for the 

1 Overruled on other grounds by Crawford v. Washington

(2004) 541 U.S. 36. 
2

first time–that a prosecutor must give advance written 

notice, on the record, of a witness’s potential unavailability. 

For these reasons, I cannot join in its decision. 

The Unavailable Witness Issue

The federal and state Constitutions guarantee 

defendants the right to confront prosecution witnesses at 

trial. (U.S. Const., 6th Amend.; Cal. Const. art. I, § 15.) 

That right, however, is not absolute. There is an exception 

when a witness is unavailable and, at a previous court

proceeding against the same defendant, the witness gave 

testimony that was subject to cross-examination. Under 

federal law, this testimony is admissible if the prosecution 

made a good-faith effort to obtain the witness’s presence at 

trial. (Hardy v. Cross (2011) 565 U.S. 65, 69–70.) Under 

California law, a witness is unavailable if the prosecution 

exercised due diligence but is unable to procure the 

witness’s attendance by use of court process. (People v. 

Fuiava (2012) 53 Cal.4th 622, 674–675 (Fuiava); People v. 

Bunyard (2009) 45 Cal.4th 836, 848–849 (Bunyard); Evid. 

Code, §§ 1291, subd. (a) & 240, subd. (a)(5).) 

A witness is also considered unavailable if he or she 

is “[a]bsent from the hearing and the court is unable to 

compel his or her attendance by its process.” (Evid. Code, § 

240, subd. (a)(4).) “In contrast to [Evidence Code] section 

240[, subdivision] (a)(5), [Evidence Code] section 240[, 

subdivision] (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.” (People v. Herrera (2010) 49 Cal.4th 613, 622–
3

623 (Herrera).) Nonetheless, unavailability in the constitutional 

sense requires “a determination that the prosecution satisfied its 

obligation of good faith in attempting to obtain” the witness’s 

presence. (Id. at p. 623.) 

As the California Supreme Court explained in Fuiava, 

“ ‘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.” 

[Citations.] Relevant considerations include “ ‘whether the 

search was timely begun’ ” [citation], the importance of the 

witness’s testimony [citation], and whether leads were 

competently explored [citation].’ [Citation.]” (Fuiava, supra, 

53 Cal.4th at p. 675.) “[I]n those cases in which courts have not 

found adequate diligence, the efforts of the prosecutor or defense 

counsel have been perfunctory or obviously negligent. . . . On the 

other hand, diligence has been found when the prosecution’s 

efforts are timely, reasonably extensive and carried out over a 

reasonable period.” (Bunyard, supra, 45 Cal.4th at pp. 855–856.) 

“ ‘Where the record reveals, . . . that sustained and substantial 

good faith efforts were undertaken, the defendant’s ability to 

suggest additional steps (usually . . . with the benefit of 

hindsight) does not automatically render the prosecution’s efforts 

“unreasonable.” [Citations.] The law requires only reasonable 

efforts, not prescient perfection.’ [Citation.] ‘That additional 

efforts might have been made or other lines of inquiry pursued 

does not affect [a] conclusion [there was due diligence]. . . . It is 

enough that the People used reasonable efforts to locate the 

witness.’ [Citation.] A court cannot ‘properly impose upon the 

People an obligation to keep “periodic tabs” on every material 

witness in a criminal case, for the administrative burdens of 
4

doing so would be prohibitive.’ ” (People v. Diaz (2002) 95 

Cal.App.4th 695, 706 (Diaz).)

“[W]hen 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 v. Stubbs (1972) 408 U.S. 204, 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. [Citations.]” (Herrera, supra, 49 Cal.4th at p. 

628, fn. omitted.) However, “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”; good faith requires 

no additional efforts by the prosecution. (Herrera, supra, at 

p. 625; see also People v. Ware (1978) 78 Cal.App.3d 822, 

837; People v. St. Germain (1982) 138 Cal.App.3d 507, 517.) 

“[W]e 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.” (Herrera, supra, 49 Cal.4th at 

p. 628.)
5

The unavailable witness here, Alex Hernandez, was 

charged with a felony and being held in federal ICE custody 

when he testified at the preliminary hearing on July 27, 

2016. He was deported to Guatemala on March 2, 2017, some 

four and a half months before trial commenced on July 24, 2017. 

The case was not vertically prosecuted; the trial prosecutor 

received the case in January 2017. He reached out to ICE in midMarch and was told Hernandez had very recently been deported 

to Guatemala. The prosecutor learned from attorneys at the 

United States Department of Justice that the United States has 

no formal ability to compel service or testimony from someone 

located in Guatemala. 

Nevertheless, the prosecutor directed his investigator to try 

to locate Hernandez, with the hopes that, even if he could not be 

compelled to attend trial, he would do so voluntarily. The 

investigator contacted Hernandez’s former probation officer and 

searched the district attorney’s databases, looking for any 

information on Hernandez and his relatives and friends. The 

investigator then personally visited several addresses associated 

with Hernandez, spoke to his former employer, and tracked down 

the owner of a phone number that may have once belonged to 

Hernandez. The prosecution ultimately was unable to locate 

Hernandez. 

Based on these facts, the trial court concluded the 

prosecution made sufficient efforts to make Hernandez available 

for trial. The court explained: 

“I’ve carefully considered everything that’s been 

argued, reviewed the case, . . . . People v. Herrera. 

“There appears to be no dispute that there was no 

type of extradition cooperation treaty between 
6

Guatemala and the United States in effect. There’s 

not one now, based on the citation and the 

undisputed statement by counsel.

“Considering all the obligations, I find the 

prosecution has fulfilled his obligations of good faith 

and due diligence, under the circumstances, the 

totality of the circumstances to get Mr. Hernandez 

here and that they have done that adequately so that 

I find that he is now unavailable under Evidence 

Code section 240 and his preliminary hearing 

testimony can be used in this case.” 

Reviewing the record, I find substantial evidence 

supports the trial court’s factual findings. Moreover, 

although ultimately fruitless, there is no question the 

prosecution made reasonable efforts to try to locate 

Hernandez and secure his appearance at trial after 

learning he had been deported to Guatemala. I would 

therefore conclude the prosecution fulfilled its state and 

federal duties of good faith and due diligence, Hernandez 

was an unavailable witness, and admission of his 

preliminary hearing transcript was proper. (See Herrera, 

supra, 49 Cal.4th at p. 625; Mancusi v. Stubbs, supra, 408 

U.S. at pp. 212–213 [the good-faith standard was met 

where the witness resided in a foreign nation and the state 

was powerless to compel his attendance at trial].)

The majority comes to the opposite conclusion, 

finding the prosecution had a duty to attempt to prevent 

Hernandez from being deported based on an exception most 

recently discussed in the appellate court decision in People 

v. Roldan, supra, 205 Cal.App.4th 969. The majority 
7

castigates the prosecution for being unaware of the case. While I 

agree both the court and counsel should have known about the 

Roldan case, I find the exception does not apply to the facts here. 

To squeeze this case within its confines, the majority significantly 

expands the holdings in Roldan and its California Supreme Court 

genesis, People v. Louis, supra, 42 Cal.3d 969. The majority also 

ignores the decades-old mandate from the United States Supreme 

Court that the prosecution need not make efforts for which there 

is a “great improbability” of locating a witness and producing him 

at trial. (Ohio v. Roberts, supra, 448 U.S. at pp. 75–76.) Finally, 

the majority legislates the unprecedented rule that a prosecutor 

must give advance written notice, on the record, of a witness’s 

potential unavailability. 

In Roldan, the unavailable witness, Sabas Barrera, was the 

victim and sole witness to a gang-related attempted premeditated 

murder. (Roldan, supra, 205 Cal.App.4th at pp. 973–976.) At the 

time of the preliminary hearing, Barrera was in federal custody, 

but being housed at an Orange County jail. (Id. at p. 977.) 

The prosecution knew he was in the process of being deported by 

the federal government. Barrera was subsequently deported, but 

the defense did not learn that fact until the first day of trial. 

(Id. p. 976.) The prosecution sought to admit Barrera’s 

preliminary hearing transcript into evidence as an unavailable 

witness. (Ibid.) 

The District Attorney Investigator in Roldan, Kevin Ruiz, 

said there were no charges pending against Barrera as of the 

preliminary hearing, and he was being held solely because of his 

immigration status. (Roldan, supra, 205 Cal.App.4th at p. 977.) 

Ruiz testified the federal government was willing to hold off 

deporting Barrera until after the preliminary hearing, but not 
8

beyond, which Ruiz testified was consistent with his 

experience in other cases. (Ibid.) “He said there used to be 

a ‘protocol’ in place under which illegal aliens facing 

deportation could be kept in custody longer if they were 

witnesses to state crimes. However, ‘because of a change 

over in the federal government because of cost, they 

decided basically that they weren’t going to’ do that 

anymore.” (Ibid.) Ruiz tried to keep Barrera in the United 

States, but federal officials told him “in so many words—

that Barrera was going to be deported, and there was 

nothing he could do about it.” (Ibid.) The prosecution did 

not attempt to secure Barrera’s testimony by placing a 

material witness hold on him. (Ibid.) However, the 

prosecutor kept in contact with federal officials and made 

efforts to hold him in custody by writing “emails, letters, et

cetera,” and trying to get federal authorities to release 

Barrera to their custody. (Ibid.) 

The trial court found, and Roldan conceded on 

appeal, that the prosecution had used good faith and due 

diligence in attempting to secure Barrera’s presence at trial 

based on its pretrial attempts to secure his presence 

following his deportation. (Roldan, supra, 205 Cal.App.4th 

at p. 980.) Roldan contended instead that the state did not 

make sufficient effort to prevent Barrera from being 

deported. (Ibid.) The Court of Appeal agreed. Reiterating 

the holding in Louis, it held that the state has a duty to 

prevent a “key” witness for the prosecution from becoming 

unavailable. (Roldan, supra, at p. 980.) Barrera was 

clearly a key witness for the prosecution as he provided the 

only direct evidence implicating Roldan as the shooter. 
9

In Louis, supra, 42 Cal.3d 969, the defendant was convicted 

and sentenced to death for murder with a special circumstance. 

(Id. at p. 974.) His codefendants, who were tried to a separate 

jury, were acquitted. (Ibid.) The only difference between the 

trials was, in the defendant’s case, the jury was read prior 

testimony of a prosecution witness, Tolbert, “whose credibility 

was indisputably minimal. Although known to be highly 

unreliable and likely to disappear, the witness was released from 

custody on his own recognizance before defendant’s trial through 

the efforts of the prosecution; the witness promptly vanished. 

After trial the codefendants went free; defendant was convicted 

and sentenced to death.” (Ibid.) The court described Tolbert as 

the most significant witness in the prosecution’s case, because his 

testimony was “the sole evidence identifying defendant as the 

trigger man . . . .” (Id. at p. 989.) The prosecutor said “it was 

[Tolbert’s] testimony and [Tolbert’s] testimony alone which 

enabled us to identify [defendant] as the shooter in this case . . . .” 

(Ibid., italics omitted.) The California Supreme Court reversed 

the judgment because “the reading of that prior testimony—

which came from a most questionable source but plainly spelled 

the difference between life and death—was admitted in violation 

of defendant’s constitutional and statutory right of confrontation . 

. . .” (Id. at p. 974.) 

In a subsequent case, the California Supreme Court 

described its holding in Louis as follows: “[I]f a particular 

witness’s testimony is deemed ‘critical’ or ‘vital’ to the 

prosecution’s case, the People must take reasonable precautions 

to prevent the witness from disappearing. [Citation.] [In Louis], 

the People honored witness Tolbert’s own request for an ‘own 

recognizance’ release on theft charges, knowing of a substantial 
10

risk that this important witness would flee. Because the 

People failed to take adequate preventative measures, such 

as holding Tolbert as a material witness pending defendant 

Louis’s trial, no due diligence was shown.” (People v. Hovey

(1988) 44 Cal.3d 543, 564 (Hovey).) The Supreme Court 

clarified, however, that the prosecution does not have an 

“obligation to keep ‘periodic tabs’ on every material witness 

in a criminal case, for the administrative burdens of doing 

so would be prohibitive.” (Id. at p. 564.) 

These cases make evident there are two prerequisites 

to eschewing the ordinary rule that the state is not 

required “to keep periodic tabs” on every material witness 

or undertake means to prevent a present witness from 

becoming absent. First, the witness must be “vital” or 

“critical” to the prosecution’s case. (Hovey, supra, 44 Cal.3d 

at p. 564.) In the two cases where the standard has been 

met, the witnesses were the sole witness upon which the 

prosecution relied for direct proof of the defendant’s guilt. 

In Louis, the witness was described as the “sole witness 

identifying defendant as the gunman”; in Roldan, the 

witness was described as the “sole witness to the gang 

attempted murder.” (Louis, supra, 42 Cal.3d at p. 989; 

Roldan, supra, 205 Cal.App.4th at p. 976.) In Hovey, in 

contrast, the witness was not “vital” to the prosecution’s 

case because his testimony would have been largely 

cumulative of another witness’s testimony. (Hovey, supra, 

44 Cal.3d at p. 564.) 

Second, the prosecution must know there is a 

“substantial risk” the witness will become unavailable. 

(Hovey, supra, 44 Cal.3d at p. 564.) In Louis, the Supreme 
11

Court found this factor was met where the witness was “likely to 

disappear” if released from custody on his own recognizance. 

(Louis, supra, 42 Cal.3d at p. 974.) In Roldan, the 

uncontradicted testimony showed the state knew, as of the 

preliminary hearing, the witness was “already in the process of 

being deported by the federal government.” (Roldan, supra, 205 

Cal.App.4th at p. 976.) The state had also been told the 

deportation was going forward, no matter what it did. (Id. at pp. 

976–977.) 

Here, the majority expands both factors well beyond Louis 

and Roldan. As I discuss below, its decision will require the 

prosecution to keep tabs on all material witnesses, not just those 

that are “critical” or “vital.” It will also require the prosecution to 

expend significant resources to monitor witnesses whose future 

availability is “uncertain” due to their immigration status, not 

just those it knows to be facing certain deportation. Further, it 

must give written notice to the defense when there is a possibility 

a witness may become unavailable. 

As to the first factor—that the witness be “critical” or 

“vital”—we evaluate the facts “as they then appeared and as 

favorably as the law and the facts allow” (Louis, supra, 42 Cal.3d 

at p. 991), not with the “prescient perfection” of hindsight (Diaz, 

supra, 95 Cal.App.4th at p. 706). Here, although Hernandez’s 

testimony was important, he was certainly not the “sole witness” 

to Torres’s attack; Quinones was alive and well, and he initially 

seemed to be a solid cooperating witness. At the time Hernandez 

was held in ICE custody, the prosecution thought it could count 

on an unwavering victim’s eyewitness testimony clearly 

identifying Torres as his lone attacker. 
12

It was just at trial—when Quinones was in custody 

and the threat of retaliation against him was imminent—

that he recanted his initial statements to police and 

preliminary hearing testimony. Only then did Hernandez’s 

testimony take on the significance the majority and Torres 

ascribe to it. But the cases direct us to look at the facts as 

they existed at the time of the unavailability hearing, not 

as they turned out at trial and not with the “prescient 

perfection” of hindsight. (Diaz, supra, 95 Cal.App.4th at p.

706; Louis, supra, 42 Cal.3d at p. 991.) When looking 

through the wrong lens, it’s easy to come to the wrong 

conclusion. 

The majority also expands the second factor, which 

requires the prosecution know there is a “substantial risk” 

the witness will become unavailable. Here, unlike Roldan, 

the prosecution did not know Hernandez’s deportation was 

certain as of the preliminary hearing. Instead, the 

prosecution knew only that he was being charged with a 

felony and was in the custody of federal immigration 

authorities. Thus, at the time of the preliminary hearing, 

the prosecution could not know whether Hernandez would 

be deported or convicted and incarcerated. 

Indeed, according to Solorio—who gave the only 

testimony indicating the prosecutor’s state of mind on this 

topic—the prosecutor “didn’t say [she] ‘anticipate[d 

Hernandez] being deported.’ She didn’t say those words. 

She just said she doesn’t know what’s going to happen to 

him due to his current immigration status.” Even the 

majority admits the prosecution knew only that “the federal 

government might deport the witness before trial.” The 
13

majority, however, simply brushes aside this fact and effectively 

expands Roldan beyond cases in which deportation is certain, to 

all cases where there is merely an “impending deportation risk.” 

If the rule requiring the prosecution prevent witnesses 

from becoming unavailable is expanded to all material witnesses 

with an “impending deportation risk”—as the majority opinion 

effectively does—the 58 District Attorney’s offices in this state 

will need to expand the size of their witness coordination units 

and hire more investigators just to keep track of them all. 

In large counties like Los Angeles, the District Attorney might 

need to permanently assign members to a “Deportation 

Prevention Unit,” whose sole job is to pursue the laundry list of

actions the majority seeks to impose upon them, including: 

notifying the defense about the deportation risk, videotaping 

preliminary hearing testimony of such witnesses, and seeking to 

stave off their deportation or hold the witnesses in custody by the 

use of federal regulations, a material witness hold, or a writ of 

habeas corpus ad testificandum. In addition, they will need extra 

funding to comply with the majority’s requirements to: 

“Subpoena the witness who may be deported; Before deportation, 

give that witness written notice about the trial; Impress upon the 

witness that they are [a] material witness and obtain their 

assurance they will return for trial; Give these witnesses contact 

information so they can stay in touch with authorities here; 

Provide witnesses with information and resources to facilitate 

their reentry to the United States to testify at trial; Obtain (or 

make a record of attempts to obtain) relatable contact 

information about family in the United States and in the nation 

to which the witnesses will be deported.” Keep in mind, the 

District Attorney will have to keep this up during the many 
14

months, and sometimes years, between preliminary 

hearing and trial. As I see it, expanding the Louis/Roldan

exception as the majority seeks to do would require exactly 

the prohibitive administrative burdens the California 

Supreme has indicated should not be imposed; it is 

precisely the reason why the prior cases have narrowly 

construed the circumstances under which the prosecution 

must keep tabs on its witnesses.

But even if I am wrong and the Louis/Roldan exception 

applies, the prosecution’s efforts still meet the requisite goodfaith standard, although barely. It is of no consequence that this 

was not the basis for the trial court’s ruling since, “[o]n appeal, a 

correct decision must be affirmed even if the trial court based its 

ruling on an erroneous reason.” (People v. Avalos (1996) 47 

Cal.App.4th 1569, 1580; accord People v. Lujano (2014) 229 

Cal.App.4th 175, 182.) Here, the prosecution made the minimum 

effort articulated in Roldan, and it was not required to take 

further futile acts. After summarizing various avenues by which 

the prosecution may have been able to secure the witness’s 

appearance at trial, the Roldan court explained there was one 

final action the prosecution could have taken: timely notifying 

defense counsel of the witness’s impending deportation. (Roldan, 

supra, 205 Cal.App.4th at p. 985.) The court characterized this 

as the “absolute minimum” the prosecution should have done to 

comply with its due diligence requirements. (Ibid.) 

In this case, there is uncontradicted evidence 

showing the prosecution satisfied this “absolute minimum”

by giving defense notice at the preliminary hearing that 

Hernandez might become unavailable. Richard Solorio, 

who was the investigating officer on the case, testified that 
15

during the preliminary hearing, the prosecutor wanted to admit 

into evidence an audio recording of a prior interview with 

Hernandez. Solorio said that, in a discussion held off the record, 

the prosecutor explained to the judge and defense counsel she 

wanted to do so because she was unsure whether Hernandez 

would be available at trial given his immigration status. Solorio 

testified the prosecutor said she “was unsure of Mr. Hernandez’s 

future availability due to his current immigration status . . .” and 

that “she doesn’t know what’s going to happen to him due to his 

current immigration status.” The prosecution, in other words, 

made defense counsel aware that Hernandez’s immigration 

status might make him unavailable for trial. As a result, unlike 

in Roldan, defense counsel had a meaningful opportunity to 

cross-examine Hernandez more thoroughly at the preliminary 

hearing or to recess and arrange to memorialize his testimony on 

videotape. To the extent defense counsel did not take advantage 

of those options, I cannot fault the prosecution, which did what 

was required of it. 

Further, it is very likely defense counsel already knew 

Hernandez might not be available at trial even before the off-therecord discussion took place, because defense counsel never 

batted an eye after hearing about it. The preliminary hearing 

transcript reflects the tape of the Hernandez interview was 

played immediately after the noon recess. When the court 

reconvened, it indicated it was going to allow the prosecutor to 

play the tape. This must have been just after the prosecutor had 

the off-the-record discussion with the court and counsel, because 

the court simply announced its ruling without arguments and 

then indicated it understood the defense wanted to interpose a 

hearsay objection to admission of the taped interview. Certainly, 
16

the court could not have known that unless there was a 

prior discussion off the record. While defense counsel 

objected to the tape on hearsay grounds, he never 

expressed surprise that Hernandez might not be available 

for trial. 

The majority misreads the record when it repeatedly 

asserts the “prosecutor agreed the defense never got notice 

‘of possible deportation or ICE custody.’ ” For this 

proposition, the majority relies on the prosecutor’s 

statement that he did not have “any indication there was a 

formal notice or e-mail of possible deportation or ICE

custody.” That there was no “formal notice or e-mail” does 

not mean there was no notice. Regardless, Solorio’s 

testimony stands uncontradicted and establishes the 

prosecutor made defense counsel aware Hernandez’s 

availability at trial was in doubt given his immigration 

status. This was sufficient given the prosecution’s limited 

knowledge at the time. 

Inexplicably, the majority later acknowledges the 

prosecution gave notice but finds it insufficient: “The 

prosecutors did not satisfy Roldan by mentioning, off the 

record, they were ‘unsure of Mr. Hernandez’s future 

availability due to his current immigration status at the 

time.’ ” This finding is troubling in several respects. First, 

there never has been a requirement in case law or statutes 

that written or “on the record” notice of a witness’s 

potential deportation be given; the majority creates it out of 

whole cloth. I would leave it to the legislature to establish 

such a requirement, should it choose to do so. 
17

Second, the majority’s pronouncement leaves the state of 

the law unclear for prosecutors trying to comply with its dictates. 

Here, for example, the prosecutor gave notice to the defense of all 

she knew about Hernandez’s immigration status at the 

preliminary hearing. As I have pointed out, at the preliminary 

hearing the prosecutor knew only that Hernandez was being 

charged with a felony and was in ICE custody, so she could not 

know whether Hernandez would be deported or convicted and 

incarcerated. Accordingly, she informed the court and counsel 

that she did not know what would happen to Hernandez in the 

future “due to his current immigration status.” It is unclear what 

more the majority would require of the prosecutor to comply with 

its new standard. Must the words “might be deported” or “in ICE 

custody” be used to make the notice sufficient? All we know for 

certain now is that when a prosecutor informs the court and 

counsel, off the record but while court is in session, that a 

witness’s future availability for trial is uncertain owing to his 

immigration status, it does not measure up. This type of 

ambiguity just underscores the importance of leaving such 

matters to the legislature, which is better suited to dictate the 

required method, content, and timing of notice obligations than 

an appellate panel can do by judicial fiat. 

The other efforts the majority (and Roldan) set out as those 

which should have been undertaken to secure Hernandez’s 

testimony inappropriately require the prosecution to take futile 

acts not likely to produce the witness for trial, which are not 

required by United States Supreme Court precedent. (Ohio v. 

Roberts, supra, 448 U.S. at pp. 74–76.) They amount to nothing 

more than the court’s “ability to suggest additional steps” with 

the “benefit of hindsight,” and which do not render the 
18

prosecution’s efforts unreasonable. (Diaz, supra, 95 

Cal.App.4th at p. 706.) That such legal options may have 

been available is not the same as saying there was a 

meaningful possibility they would have prevented 

Hernandez’s deportation. As the United States Supreme 

Court explained in Ohio v. Roberts, supra, 448 U.S. 56,

although “[o]ne, in hindsight, may always think of other 

things,” the prosecution need not make efforts for which 

there is a “great improbability” of locating the witness and 

producing him at trial. (Id. at pp. 75–76.) The prerequisite 

to due diligence is not about requiring the prosecution to 

compile a long list of efforts; it is about requiring measures 

that were likely to have been effective. 

For example, I am not convinced the prosecution 

should or could have pursued the legal avenues discussed 

by the majority, such as seeking a detention order at the 

preliminary hearing, invoking federal regulations, or 

petitioning for a writ of habeas corpus from a federal court. 

As to a possible detention order, the majority fails to 

consider that to be effective, the hold would have had to 

keep Hernandez in custody for the year that elapsed between 

the preliminary hearing and trial. This was not possible 

under state law and would have violated Hernandez’s 

constitutional rights. Indeed, “[t]he material witness 

provisions of the Penal Code are limited to requiring a bond 

to secure the witness’s appearance, and a maximum 10 

days in custody for failure to post such a bond.” (Hovey, 

supra, 44 Cal.3d at p. 564, italics in original.) Further, the 

California Constitution, article 1, section 10, forbids the 

unreasonable detention of witnesses. Due process 
19

principles simply would not have permitted holding Hernandez 

as a material witness during the year-long period that elapsed 

following his preliminary hearing testimony on July 27, 2016, 

and the commencement of Torres’s trial on July 24, 2017. 

In Roldan, the court considered this option reasonable because 

the witness only would have been held in custody for “a few more 

months until the time of trial.” (Roldan, supra, 205 Cal.App.4th

at p. 982.) It is also significant to note that during the period 

that elapsed between Torres’s initial arraignment on the 

information on September 1, 2016, to the beginning of voir dire 

on July 19, 2017, defendant waived his right to a speedy trial 13 

times. In other words, Torres never objected to the delays, and 

they were likely made at his request. 

Neither is it apparent that the state could have relied upon 

federal regulations to delay Hernandez’s departure. Even 

assuming a county prosecutor can invoke those regulations, they 

only allow a “temporary” delay in deportation. (8 C.F.R. § 215.2.) 

Further, they are set up to be self-executing by ICE. The Code of 

Federal Regulations mandate that a departure control officer 

“who knows or has reason to believe” a witness is needed for 

testimony “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 orders.” (8 C.F.R. § 215.3.) Here, ICE agents would have had 

reason to believe Hernandez was needed for trial given that he 

testified at the preliminary hearing, yet they did not prevent his 

departure.

Further, a writ of habeas corpus ad testificandum operates 

to bring a witness out of a detention facility to testify on a date 
20

certain and to then be immediately returned to the 

detention facility. (See Barber v. Page (1968) 390 U.S. 719, 

724; Atkins v. City of New York (E.D.N.Y. 1994) 856 

F.Supp. 755, 757; 28 U.S.C. § 2241.) That would not have 

prevented Hernandez from being deported, because such a 

writ does not contemplate detaining a witness in custody 

for the purpose of testifying. 

The majority claims informal contacts between 

federal and state law enforcement officials, which “share 

law enforcement objectives,” might have been helpful. 

Here, the majority turns the real problem underlying these 

cases entirely on its head. The problem underlying this 

genre of cases is that federal authorities do not cooperate 

with the state to hold off on deportation until a witness 

testifies at trial. In Roldan, the witness became 

unavailable because federal authorities were unwilling to 

delay deportation until after a state criminal trial. The 

state’s investigator was told in Roldan “in so many words—

that Barrera was going to be deported, and there was 

nothing he could do about it.” (Roldan, supra, 205 

Cal.App.4th at p. 977.) There, the federal government 

indicated it was only willing to “hold off deporting Barrera 

until after the preliminary hearing . . .” but “not [] to keep 

Barrera in custody beyond that time.” (Id. at p. 977.) In 

this case, the only testimony on the subject was from ICE 

deportation officer Jason Henshaw, who said in his five 

years working for the agency, he had never encountered a 

situation in which ICE delayed a deportation so that a 

witness could testify in a state criminal trial. 
21

In this case, the majority relies exclusively on Henshaw’s 

testimony that “[w]hen an alien is brought into [ICE] custody, we 

usually run their criminal record for wants and warrants, and 

we’ll reach out to the agency that usually has a want or [warrant]

on that subject, if they want to take custody of that subject.” 

The fact that ICE reaches out to agencies with wants and 

warrants on its detainees, however, is largely beside the point. 

Such actions would not have been enough to secure Hernandez’s 

appearance at trial. Rather, ICE would have had to take the 

substantially more dramatic step of delaying his deportation. 

Henshaw never testified that ICE was willing to take that step. 

In fact, his testimony indicates it had never done so in all the 

years he worked with the agency. There is no evidence in the 

record to suggest this case would have been the first. 

I am not asserting the prosecution did a stellar job of trying 

to prevent Hernandez from being deported. The real problem, 

however, is that there was no effective measure it could have 

undertaken to stop it from happening. Here, the prosecution took 

sufficient steps to meet the standard of good faith and due 

diligence—clearly as to its efforts as judged by Herrera, and 

barely under Louis and Roldan. 

I do, however, strongly agree with the majority that this 

case needs to draw the attention of District Attorney

administrators to the common problem caused by the federal 

government’s unwillingness to wait for state trials before 

executing deportations. The District Attorney’s Offices need to be 

made aware, if this case stands, of the new written notice 

requirement imposed by the majority and the ineffective yet 

rigorous lengths prosecutors must undertake to demonstrate a 
22

witness is legally unavailable when that witness might be 

deported. 

Harmless Error 

In addition, I would not reverse Torres’s conviction 

because any error was harmless. A violation of a 

defendant’s constitutional right to be confronted with the 

witnesses against him is harmless error if it appears 

“beyond a reasonable doubt that the error complained of 

did not contribute to the verdict obtained.” (Chapman v. 

California (1967) 386 U.S. 18, 24; see People v. Arredondo 

(2019) 8 Cal.5th 694, 709; People v. Livingston (2012) 53

Cal.4th 1145, 1159.) “An assessment of harmlessness 

cannot include consideration of whether the witness’

testimony would have been unchanged, or the jury’s 

assessment unaltered, had there been confrontation; such 

an inquiry would obviously involve pure speculation, and 

harmlessness must therefore be determined on the basis of 

the remaining evidence.” (Coy v. Iowa (1988) 487 U.S. 

1012, 1021–1022.)

Here, even without Hernandez’s testimony, there is 

overwhelming evidence to support the jury’s verdict. 

This was a typical gang case where the victim recanted; the 

jury saw through it and convicted Torres of the charges. 

The evidence showed both Quinones and Torres were 

members of the Eastside Longos gang; Quinones’s moniker 

was “Kid” and Torres’s was “Terko.” The jury heard a taperecorded interview of Quinones by police on the day of the 

stabbing. In it, Quinones said he and “Terko” were from 

the same gang and had been “beefing” each other about 

“politics” for two weeks preceding the attack. Torres told 
23

the police he could not describe the nature of the so-called 

political dispute because if he did, he would put his life and 

his family at risk. In his preliminary hearing testimony—

admitted at trial to impeach his partial recantation of the 

events—Quinones explained the dispute was because Torres 

thought he was trying to usurp his leadership position in the 

gang. Text messages on Torres’s phone confirm the dispute with 

Quinones: prior to the attack, someone sent Torres a text 

message saying Quinones was “no good in gang culture anymore” 

and “should be targeted.” Torres’s phone replied, “Been trying to 

let you know.” 

Quinones told police that, on the night of the incident, 

Torres snuck up on him as he and his “cousin” Alex Hernandez 

left his girlfriend and daughter’s home. When Quinones saw 

Torres, he said, “You doing something—are you going to do 

something funny, boy? Like just let me know, you know.” 

Quinones thought Torres had a gun. Torres asked him: “You 

think you can laugh at me and some shit like that? You think 

you’re funny?” Torres pulled out a knife and stabbed Quinones in 

the chest. Quinones jabbed Torres in the chin with his fist and 

took off running down the alley with Torres in pursuit. When 

Quinones turned around, he said to Torres, “Come on, nigga. 

Drop the knife. Drop the knife. Drop the knife, nigga.” At that 

point Torres stabbed him in the arm. Someone screamed, “Call 

911!” and Quinones ran to a nearby liquor store. Torres walked 

away. 

Ronnie McAllistair called 911 on the night of the stabbing 

after seeing Quinones walking unusually in the alley with a 

wounded arm. He reported that he saw a man bleeding 

extensively and did not know what happened, “but I don’t think 
24

he’s going to make it too long.” McAllistair said Quinones 

was near Mike’s Liquor. 

Marisa Orozco testified she was working at Mike’s 

Liquor that night when Quinones came in and asked her to 

call for help because he had cuts on his arm and chest and 

was bleeding. Orozco called the police. 

Approximately 15 minutes after the stabbing, Torres 

was stopped in an area close to the stabbing by Long Beach 

Police Officer Anthony Garcia, who had been given a 

description of his vehicle. Torres was in the driver’s seat 

and his girlfriend was in the passenger seat. Thereafter, 

Officer Garcia arrested appellant. 

As Garcia drove Torres to the police station, Torres 

asked the officer if he would be released “if the victim did 

not want to be a victim.” Officer Garcia said he wasn’t 

certain, but he believed “you need a victim for a crime.” As 

they approached the police station, Torres asked again 

whether there was no crime if there was no victim. Officer 

Garcia said he could not be certain. Torres was taken into 

the police station, and he once again asked if he would be 

released if there was no victim. 

Cell phone records placed Torres in the area of the 

stabbing at the time it occurred. 

At trial, Quinones gave a dramatically different 

account of the incident, claiming, for the very first time, 

he was stabbed while both Hernandez and Torres were 

fighting him in the ally. Yet, unlike his pre-trial 

statements and testimony, his trial testimony was full of 

holes and inconsistencies. He alternated between insisting 

Hernandez stabbed him and having no idea who was 
25

responsible. He failed to explain why he would get in a car with 

Hernandez almost immediately after being viciously attacked by 

him. He provided less than convincing—and ever-changing—

reasons for altering his testimony so dramatically at trial. He 

was not even consistent as to whether he intentionally lied at the 

preliminary hearing or was simply mistaken. The prosecutor 

quite accurately described Quinones’s recantation at trial as 

“nonsense” and “a bunch of crazy stuff.”

The question to resolve is whether the jury would have 

convicted Torres on this record and in the absence of Hernandez’s 

testimony. I am confident, beyond a reasonable doubt, it would 

have. 

The jury found Torres personally used a knife in the 

commission of the offenses, so the verdict reflects it did not 

believe Quinones’s “crazy” recantation at trial. I come to the 

same conclusion. Quinones’s pre-trial statements to police and 

preliminary hearing testimony provided a consistent, coherent, 

and compelling account of the stabbing: he had a “beef” with 

Torres over gang “politics”; Torres alone attacked and stabbed 

him; and Hernandez—whom Quinones referred to as his cousin—

was present but not involved in the fight. Quinones’s pre-trial 

account is also consistent with the other evidence presented at 

trial. Further, Torres fled the scene of the stabbing in a car—

showing a consciousness of guilt. Hernandez, in complete 

contrast, remained in the area and cooperated with police in their 

investigation.

Torres’ repeated questions to police about whether there 

would be a crime if there was no victim, made during his arrest 

and immediately after the stabbing, show he knew he committed 

the crime and that he was already hatching a plan to get off the 
26

hook for it. Even the majority acknowledges the questions 

tend to incriminate him. Enigmatically, the majority then 

concedes only that “Torres’s questions tend to incriminate 

him of victimizing someone in some way . . . .” Torres’s 

questions cannot be taken out of the context in which they 

were made—right after the stabbing, while he was under 

arrest for the stabbing. When properly considered in this 

setting, the statements can only be interpreted to 

incriminate Torres of stabbing Quinones. 

To the extent the majority accepts Quinones’s 

explanation that his prior testimony and statements were 

the result of being “drugged up,” it is misguided. First and 

foremost, Torres was likely claiming he was high on drugs 

to further intentionally discredit his own testimony. 

Regardless, being high on methamphetamine, or any drug 

for that matter, does not cause someone to lie. It does not 

result in a consistent and logical, yet completely false, 

account of events. Nor does it make someone blame one 

attacker but not the other. 

In some cases, I would be reluctant to accord great 

weight to statements and testimony from a witness who 

behaved like Quinones. But I cannot view his statements 

and testimony in a vacuum; nor must I put aside common 

sense when performing a harmless error analysis. This is a 

gang case; recantation is common. As the People’s gang 

expert explained, those who testify against the Eastside 

Longos gang do so at great risk to their personal safety and 

the safety of their families. Even Quinones admitted at 

trial he was fearful his testimony about Torres would put 

his friends and family at risk. 
27

The majority briefly notes that recantation is common in 

gang cases. Unfortunately, I believe an acknowledgement of that 

fact is as far as the majority goes. It’s entirely different to 

recognize a recantation when it’s present and to give it the 

weight, or lack thereof, when it transpires. Here, I think it clear 

that Quinones lied at trial to avoid repercussions for testifying 

against his gang. His pre-trial statements, in contrast, were 

sincere and truthful. Considered with the other properly 

admitted evidence, they establish beyond a reasonable doubt that 

Torres stabbed Quinones with the intent to kill.2

Prior Conviction Enhancements 

Although I would affirm Torres’s convictions for attempted 

premeditated murder and assault with a deadly weapon, I would 

agree with the majority that it was error to impose the prior 

conviction sentencing enhancements. When the People allege a 

prior conviction sentencing enhancement, the defendant has a 

statutory right to a trial on the factual issues raised by a denial 

of those allegations. (Pen. Code, §§ 1025, 1158; see People v. 

Epps (2001) 25 Cal.4th 19, 23.) As the majority notes, the docket 

entries do not show a trial on the prior conviction allegations, and 

there is no other record of such a trial. The trial court’s brief 

remark implying the trial occurred is not sufficient. Therefore, I 

would strike the prior conviction sentencing enhancements and 

2 The majority faults the Attorney General for making “a 

halfhearted effort to marshal proof of guilt” and insinuates he did 

not make a long analysis of harmless error because Quinones 

recanted. I would not speculate at the reason behind the length 

of an argument in a respondent’s brief. A short argument can 

equally be attributed to overconfidence, a demanding workload, 

or a myriad of other reasons. 
28

remand the case for a new trial on the prior conviction 

allegations. 

BIGELOW, P. J.