Filed 5/4/20
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION EIGHT


 THE PEOPLE,                          B295043

         Plaintiff and Respondent,    (Los Angeles County
                                      Super. Ct. No. NA103887)
         v.

 ALBERT TORRES,

         Defendant and Appellant.


      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.
                      ____________________
       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 cross-
examination 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




                                 2
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.




                                3
       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.




                                 4
       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.”




                                5
         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 then-
counsel (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.




                                  6
       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




                                7
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.




                               8
       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




                                9
“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




                               10
“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,




                                 11
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




                                 12
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




                                13
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.




                               14
                                   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




                                15
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




                                16
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.




                                17
      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.




                                18
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.


                                 1
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–




                                  2
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




                                  3
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.)




                                 4
       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 mid-
March 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




                                 5
      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




                                 6
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




                                 7
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.




                                 8
        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




                                  9
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




                                10
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.




                                  11
      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




                                12
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




                                13
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 good-
faith 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




                                 14
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-the-
record 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,




                                 15
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.




                                16
      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




                                17
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




                                18
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




                                19
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.




                                 20
       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




                                 21
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 tape-
recorded 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




                               22
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




                               23
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




                                24
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




                               25
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.




                               26
       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.



                                27
remand the case for a new trial on the prior conviction
allegations.




                                          BIGELOW, P. J.




                                28
