Herrera

Defendant Honorio Moreno Herrera was a member of the criminal street gang known as "Krazy Proud Criminals" or "KPC." In June 2005, he and two fellow KPC members drove into the territory of a rival gang called "Logan," and shot and killed Erick Peralta. In June 2006, Jose Portillo testified at a preliminary hearing that defendant confessed to the shooting. Defendant was then charged by information with one count of first degree murder, with a criminal street gang special circumstance and two gang-related enhancements. He was also charged with one count of street terrorism.

By the time defendant's case was ready for trial in May 2007, Portillo could not be found. The prosecution filed a pretrial motion to admit Portillo's preliminary hearing testimony, contending he was unavailable as a witness. After hearing evidence that Portillo had been deported to El Salvador in September 2006, and that El Salvador and the United States had no treaty providing for his extradition to this country to testify as a witness, the trial court ruled Portillo unavailable and allowed his testimony to be read to the jury. The Court of Appeal reversed, concluding the prosecution had failed to…

Defendant Honorio Moreno Herrera was a member of the criminal street gang known as “Krazy Proud Criminals” or “KPC.” In June 2005, he and two fellow KPC members drove into the territory of a rival gang called “Logan,” and shot and killed Erick Peralta. In June 2006, Jose Portillo testified at a preliminary hearing that defendant confessed to the shooting. Defendant was then charged by information with one count of first degree murder, with a criminal street gang special circumstance and two gang-related enhancements. He was also charged with one count of street terrorism.

By the time defendant’s case was ready for trial in May 2007, Portillo could not be found. The prosecution filed a pretrial motion to admit Portillo’s preliminary hearing testimony, contending he was unavailable as a witness. After hearing evidence that Portillo had been deported to El Salvador in September 2006, and that El Salvador and the United States had no treaty providing for his extradition to this country to testify as a witness, the trial court ruled Portillo unavailable and allowed his testimony to be read to the jury. The Court of Appeal reversed, concluding the prosecution had failed to…

As the majority frames the issue, this case requires that we consider what prosecutorial efforts will sustain a finding of unavailability when the absent witness was not in this jurisdiction but in another country. (Maj. opn., ante, at p. 623.) The majority concludes that if evidence supports the trial court’s finding that the witness was out of the country and in a country with which no treaty exists for the production of witnesses for trials in the United States, the prosecution has “fulfilled its obligation of good faith and due diligence” (id. at p. 629) in demonstrating the witness’s unavailability; consequently, the trial court properly admitted Portillo’s preliminary hearing testimony (ibid.; see also id. at p. 632). I concur that the trial court properly admitted Portillo’s preliminary hearing testimony at defendant’s trial. I do so, however, not on grounds the prosecution exercised due diligence, but on grounds of harmless error; as the *633 majority states, “even assuming the prosecution should have started its search weeks earlier, further efforts to locate Portillo in California would have been futile . . . {Id. at p. 630.)

The facts of this case are analogous to a…