Filed 6/17/20

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D075381

Plaintiff and Appellant,

v. (Super. Ct. No. SCS304369)

MARIO IVAN AGUILERA et al.,

Defendants and Respondents.

APPEAL from an order of the Superior Court of San Diego County, Garry G.

Haehnle, Judge. Reversed.

Summer Stephan, District Attorney, Mark A. Amador, Linh Lam, and Karl Husoe,

Deputy District Attorneys, for Plaintiff and Appellant.

Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and

Respondent Mario Aguilera.

Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and

Respondent Jesus Castaneda.

Christine M. Aros, under appointment by the Court of Appeal, for Defendant and

Respondent Ricardo Eaton. Cathryn L. Rosciam, under appointment by the Court of Appeal, for Defendant

and Respondent Daniel Gracia.

Alex Coolman, under appointment by the Court of Appeal, for Defendant and

Respondent William Sherman.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and

Respondent Jose Villanueva.

The People, represented by the San Diego County District Attorney, appeal an

order dismissing all criminal charges against defendants Mario Aguilera, Jesus

Castaneda, Ricardo Eaton, Daniel Gracia, William Sherman, and Jose Villanueva.

Defendants were charged with multiple felonies, including robbery (Pen. Code, § 211)

and carjacking (id., § 215), arising from an aborted illegal drug transaction. The trial

court found that defendants' constitutional right to due process was violated because the

federal government refused defendants' requests to produce potentially exculpatory

evidence in the possession of the U.S. Drug Enforcement Agency (DEA). We conclude

that neither due process nor any other constitutional provision requires dismissal of the

charges against defendants under the circumstances here. We therefore reverse the

dismissal order.

FACTUAL AND PROCEDURAL BACKGROUND

The Alleged Offenses

For purposes of this section, we take the historical facts from the transcript of the

preliminary hearing in this matter. At that hearing, the court heard testimony from the

primary victim E.G., his son, and a police detective.

2 E.G. owned and operated a used car lot in National City, California. He was also

involved in the cross-border drug trade between Mexico and the United States.

Sometime in 2017, E.G. was threatened with federal prosecution, and he agreed to

become an informant for the DEA. At the time, E.G. was involved with Aguilera in an

effort to smuggle 200 kilograms of marijuana from Mexico into the United States. A

person, whom E.G. did not know, provided the marijuana, and E.G. arranged to store the

marijuana in Tijuana.

Once E.G. became an informant, the DEA told him to step away from the deal.

They wanted him to focus on other, more consequential transactions. The marijuana was

never transported into the United States. It remained in Tijuana and eventually went bad.

Aguilera subsequently contacted E.G. and told him the person who provided the

marijuana wanted to be paid for the loss. E.G. gave Aguilera a few used vehicles, which

he thought would compensate the person.

Later, on January 8, 2018, E.G. received a call from an unknown man, who said he

was interested in purchasing a used car E.G. had advertised online. E.G. invited the man

to go to the used car lot, where one of E.G.'s employees would show him the car. An

hour later, the man called again and confirmed he wanted to purchase the car. E.G. drove

to the lot to complete this sale. He brought along his young son.

When E.G. arrived at the lot, his employee told him that the man was out getting

some food and would be back soon. Several minutes later, the man returned with another

person. E.G. later identified them as Gracia and Eaton, respectively. After E.G. spoke

with Gracia briefly, two SUVs drove onto the lot. Six individuals exited the SUVs:

3 Aguilera, Castaneda, Sherman, Villanueva, a man identified as "Sergio," and an

unidentified man. E.G. had employed Villanueva and Sergio at the car lot, and he knew

Sherman as Villanueva's friend. (E.G. had stopped working with Villanueva several

weeks earlier because he believed Villanueva had sold two trucks without permission and

kept the money.) E.G. knew Aguilera, as discussed above, and they had been legitimate

business associates as well for many years. E.G. was unfamiliar with Castaneda.

Gracia and Eaton grabbed E.G. from the back, and Eaton took E.G.'s cell phone.

Either Eaton or Gracia had a gun. The other men approached quickly. Either Villanueva

or Sherman, or both, held a large knife.

Aguilera introduced Castaneda as the person who had provided the marijuana that

had languished in storage in Tijuana. Castaneda demanded money. He threatened to

kidnap E.G. and take him to Mexico. But, when Castaneda saw E.G.'s son, he said,

"You're in luck. Because your kid is here, we're not going to take you, but I want

money."1

E.G. told Castaneda he did not have money, but Castaneda could take whatever he

wanted from the lot. Castaneda said they would take the vehicles, but he still wanted the

money in a couple weeks. The men drove some vehicles away, enlisted a tow truck to

1 E.G.'s son was sitting in a truck on the lot using his cell phone. He saw a number of men approach his father. They were "grabbing [him] really hard in the jacket and . . . taking him somewhere." He tried to hide and call his mother, but Villanueva found him and took his cell phone. The men approached E.G.'s employee as well and took his phone and watch. Both were scared for their safety. 4 haul away some more, and retrieved others from auction lots. They eventually took

several cars, SUVs, and vans, as well as at least one boat.

E.G. and his son left the lot in another used car. In the evening, E.G. called his

DEA handler, Shawn Gaines. E.G. had been scheduled to meet with him that day. E.G.

and Gaines agreed to meet the following day, along with another DEA agent, Mario

Borboa. E.G. testified that he did not call the police because he wanted to talk to Gaines

first.

The next day, E.G. met with Gaines and Borboa, as well as two other DEA agents.

They spoke for approximately an hour or two. E.G. gave them a full report of the

incident, including the names and descriptions of the people involved. At least one of the

agents took notes of the conversation. E.G. did not know whether the conversation was

recorded.

A few days later, Borboa arranged for E.G. to meet with a National City police

detective. Borboa was acquainted with the detective because they had served together on

the same task force. E.G. met with the detective and, according to him, provided the

detective the same information he gave Gaines and Borboa. The detective interviewed

E.G.'s son and his employee as well.

At the preliminary hearing, E.G. testified that his work as an informant involved

setting up drug transactions with individuals specified by the DEA. E.G. made money on

the transactions, but he was not paid by the DEA itself and did not receive any other

benefits (except avoiding prosecution). He had a contract with the DEA, which he was

5 required to sign every three or four months. But by the time of the hearing, E.G. had let

his contract expire.

Proceedings on the Initial Charges and First Dismissal

The district attorney charged defendants with robbery, carjacking, and other

offenses. (People v. Eaton (Super. Ct. San Diego County, 2018, No. SCS298500);

People v. Castaneda (Super. Ct. San Diego County, 2018, No. CS302785).) In advance

of trial, the prosecutor contacted Borboa and requested a summary of benefits E.G. had

received from the DEA. The prosecutor told Borboa that the information was relevant to

E.G.'s credibility and the prosecutor was required to disclose it to comply with his Brady

obligations. (Brady v. Maryland (1963) 373 U.S. 83 (Brady).) A DEA attorney

responded by email and declined to provide the information. He advised the prosecutor

that, under United States ex rel. Touhy v. Ragen (1951) 340 U.S. 462 (Touhy), he would

have to comply with federal regulations to make a proper request. (See 28 C.F.R. § 16.21

et seq.) The attorney wrote that defense counsel was also free to submit a request.2

Separately, Sherman served two subpoenas on Borboa seeking testimony and

various categories of documents relating to E.G.'s relationship with the DEA, the alleged

offenses, and E.G.'s credibility generally. The DEA attorney responded that Sherman's

2 In Touhy, the United States Supreme Court considered whether the federal government could rely on its own regulations to refuse to comply with a subpoena or request for information. (Touhy, supra, 340 U.S. at p. 463.) The Supreme Court concluded that such regulations are valid and enforceable. (Id. at p. 468.) As discussed below, "If dissatisfied with the agency's response to the request, the defendant is not without recourse. The proper method for judicial review of the agency's final decision pursuant to its regulations is through the Administrative Procedure Act ('APA')." (United States v. Williams (4th Cir. 1999) 170 F.3d 431, 434 (Williams).) 6 request for information from the DEA would likewise have to comply with federal

regulations under Touhy. Among other things, Sherman was required to submit an

affidavit describing the relevance of the information sought. (See 28 C.F.R. § 16.22(c).)

The DEA attorney stated that the U.S. Attorney's Office would review any proper request

and authorize appropriate disclosures when warranted. He wrote, "If a party is

dissatisfied with the government's response to a Touhy request, the party's remedy is an

action against the relevant agency pursuant to the Administrative Procedures Act, and not

pursuant to a motion to compel."

Sherman's counsel provided the requested affidavit. He described the alleged

offenses, E.G.'s relationship to the DEA, and the fact that E.G. first reported the incident

to the DEA.

Three weeks later, an Assistant U.S. Attorney informed Sherman's counsel by

letter that the U.S. Department of Justice, of which the DEA is a part, would not

authorize Borboa to testify and would not produce records in response to the subpoenas.

The attorney wrote that "the records and testimony you are seeking implicate the

existence or nonexistence of law enforcement investigations, and the existence or

nonexistence of confidential source relationships. Furthermore, your request seeks

information the disclosure of which would reveal investigatory techniques and

procedures the disclosure of which would jeopardize their effectiveness. Accordingly,

under 28 C.F.R. § 16.26(b)(4)-(5), disclosure will not be authorized." The attorney noted

that Borboa's work is funded by taxpayers and "testifying in this state court criminal

litigation would not be the best use of the [DEA's] limited resources." The attorney

7 informed Sherman's counsel that a state court subpoena cannot be enforced against a

federal employee, and any attempt at enforcement would be removed to federal court.

Undeterred, Sherman sought and obtained a bench warrant from the trial court for

Borboa's attendance. The U.S. Attorney's Office removed the subpoena proceedings to

federal district court and filed a motion to quash. In a written order, the federal court

granted the motion. It noted that the federal court's jurisdiction on removal is coextensive

with the jurisdiction of the underlying state court, citing FBI v. Superior Court of Cal.

(N.D.Cal. 2007) 507 F.Supp.2d 1082, 1092. It found that because the state court did not

have jurisdiction to enforce a subpoena against the federal government, based on

principles of sovereign immunity, the federal court likewise could not, citing Elko County

Grand Jury v. Siminoe (In re Elko County Grand Jury) (9th Cir. 1997) 109 F.3d 554, 556

(Elko County). The federal court granted the motion to quash the subpoenas and

dismissed the proceedings.

Back in the trial court, Sherman moved to dismiss the charges against him. He

argued that his inability to compel Borboa's testimony and production of documents

violated his constitutional rights, including the right to confrontation, the right to

compulsory process, the right to effective assistance of counsel, and the right to due

process generally. The remaining defendants joined in Sherman's motion.

In opposition, the prosecution argued that a criminal defendant does not have a

general constitutional right to discovery. The disclosure of potentially exculpatory

evidence in the possession of a government agency is governed by Brady principles.

Under Brady, the prosecution is required to disclose material evidence in its own files as

8 well as others acting on its behalf. Brady did not compel testimony or production of

documents from the DEA because the DEA was not working on behalf of the prosecution

and was not part of the investigation of the defendants.

At the hearing on Sherman's motion to dismiss, the court heard testimony from the

National City police detective responsible for the investigation. The detective said that

Borboa called him on January 12, 2018, four days after the alleged offenses. Borboa had

the detective's cell phone number because they had previously worked on the same task

force, though never on the same case. Borboa gave the detective E.G.'s name and told

the detective E.G. had been the victim of a crime. Borboa brought E.G. to a National

City police station, where the detective interviewed him. Borboa was present for the

detective's initial interview with E.G. From that point on, neither the DEA nor any other

federal agency assisted the detective in his investigation of the offenses. Nor was the

DEA or any other federal agency involved in any other investigations that aided the

detective's investigation. The detective had not worked with Borboa or any other federal

agent to gather facts or otherwise investigate the crimes.

After hearing argument, the trial court (Judge Theodore Weathers) granted

defendants' motion to dismiss. The court noted that the prosecutor's efforts to obtain

information from the federal government had been "exemplary" and the prosecutor

"appears to have acted aboveboard at all times." The court believed, however, that "the

issue here does rise to the level of a constitutional issue based upon due-process and the

failure to provide the defendants with a right to a fair trial. And certainly their [Sixth]

Amendment right to confront and cross-examine witnesses is implicated here. [¶] To

9 me, the [DEA] agent has critical information." The court stated, "What, if anything,

[E.G.] said to the federal agent in this court's mind is critical. And what is also critical, as

I inquired of the People, is the circumstances of the underlying drug transaction. You

know, what, if anything, did the DEA know about that? Were they involved with it?"

After some logistical discussion, the court ordered, "These cases are dismissed, and the

People can take whatever action or whatever remedies they feel appropriate, whether it be

refiling the charges or whether by filing a writ. You certainly have your recourses in this

case. [¶] And I also want to state that this court does not dismiss charges like this

lightly. This court—I've been on the bench for almost 19 years now, and I have not

confronted a situation where I've been so impressed with the issue that presents itself here

with this fundamental fairness, where these defendants are absolutely precluded from

cross-examining what everyone agrees is a critical witness here with critical

information—with Brady information."

The prosecution filed a petition for writ of mandate in this court seeking

reinstatement of the charges. We summarily denied the petition because the prosecution

had an adequate remedy by way of appeal. (People v. Superior Court (Eaton) (Nov. 6,

2018, D074879).) The prosecution did not appeal.

Proceedings on the Refiled Charges and Second Dismissal

Two days after the dismissal order, before filing its writ petition, the prosecution

refiled charges against the defendants. Defendants demurred to the criminal complaint

on the ground that the prior dismissal barred refiling because it was based on a

constitutional violation. The trial court (Judge Weathers) overruled the demurrer. It

10 stated, "[I]n this case the [c]ourt does agree with the prosecution that a demurrer is not

the appropriate mechanism to deal with this issue that [defense] counsel is raising. With

respect to the dismissal of the prior case on constitutional grounds, there is no defect on

the face of the pleadings here. And therefore, in each of the defendants' cases, the

demurrer is overruled." The prosecutor noted that his office was engaged in discussions

with the federal government regarding the potential disclosure of DEA information.

The court (Judge Stephanie Sontag) held a preliminary hearing. The testimony

elicited at the hearing has been recounted above. The court held defendants to answer on

all charges, though it did not sustain certain firearm enhancement allegations against

Gracia and Eaton. The prosecutor informed the court that his office's discussions with

the federal government were ongoing.

Sherman again subpoenaed Borboa, as well as fellow DEA agent Gaines.

Castaneda also subpoenaed Borboa and Gaines. By letter, the Assistant U.S. Attorney

again informed defendants that the Department of Justice refused to provide the requested

testimony and information. The attorney gave the same grounds as before: (1) the

records and testimony implicate federal law enforcement investigations, confidential

source relationships, and investigatory techniques and procedures; (2) testimony in this

state court criminal litigation would not be the best use of the DEA's limited resources;

and (3) a state court subpoena cannot be enforced against a federal employee.

Defendants moved to dismiss. They reiterated their argument that the federal

government's refusal to allow testimony and document production by the DEA violated

their constitutional rights. In opposition, the prosecution argued again that the defendants

11 had no general right to criminal discovery and Brady did not compel production of

information in the hands of the federal government under the circumstances here.

The trial court (Judge Garry Haehnle) heard argument and granted the motion to

dismiss. In its oral ruling, the court stated, "What really troubles this Court about this

case . . . [is that the detective] testified that he did not speak to [E.G.] until the 12th,

which was actually almost five days later, because this happened on the 8th and he spoke

to him on the 12th. [¶] So what troubles me the most and which to me just doesn't pass

the smell test is I have got this alleged victim who has these horrible crimes with the use

of weapons . . . allegedly committed against him, and instead of running to the police like

he should have, he runs to his handlers at the DEA, and it's then four or so days later that

he makes contact with the police." The court was not concerned about E.G.'s history as a

DEA informant. Instead, it was concerned about what E.G. told the DEA agents before

he went to police. The court explained, "When I look at due process violations, I have to

look at how it affects the defendant. And the defendants in this case don't have access to

information that they should have access to to ensure that they are going to get a fair trial

and make sure that the guarantees of the Sixth and Fourteenth Amendments are upheld.

[¶] And . . . I understand the concept that this was the federal government [that] has

stepped in and prevented the district attorney's office from getting that information. But

it is the government. [¶] . . . [¶] And so I am going to grant the defense motion based on

that and dismiss the case." The prosecution appeals.

12

DISCUSSION

I

Procedural Bar Based on Refiling

Before we consider the merits of the court's dismissal order, we must address a

procedural bar raised by the defendants. They contend this appeal must be dismissed

because the prosecution was barred as a matter of law from refiling charges against them

after the first dismissal order. They do not cite any authority for the proposition that the

appeal itself must be dismissed. The second dismissal order is an appealable order under

Penal Code section 1238, and the prosecution is aggrieved by the order. (Cf. People v.

Punzalan (2003) 112 Cal.App.4th 1307, 1310-1311 [dismissing appeal where city and

police department were not aggrieved parties with standing to appeal].)

Defendants primarily rely on People v. Pinedo (2005) 128 Cal.App.4th 968, 970

(Pinedo), where the appellate court affirmed a second dismissal order on the ground that

refiling the underlying charges was unauthorized. Defendants appear to argue, in the

alternative to outright dismissal of this appeal, that the dismissal order here should be

affirmed for the same reason. In Pinedo, the trial court's first dismissal was based on

unreasonable prosecution delay resulting in actual prejudice. (Id. at p. 971.) The

prosecution refiled the charges and did not appeal. (Ibid.) The trial court again

dismissed the charges. (Ibid.) It reasoned that the "initial dismissal order was a final

order terminating the prosecution, subject only to a successful appeal of the ruling."

(Ibid.)

13 The appellate court agreed. (Pinedo, supra, 128 Cal.App.4th at p. 973.) It held

that dismissal on certain constitutional grounds limited the prosecution's usual ability to

refile: "[T]he United States Supreme Court determined by its decision in Strunk v.

United States [(1973) 412 U.S. 434, 439-440], that the sole remedy for a violation of a

defendant's right to a speedy trial is a dismissal with prejudice. Similarly, when the

United States Supreme Court settled in its decisions in United States v. Marion [(1971)

404 U.S. 307, 324] and United States v. Lovasco (1977) 431 U.S. 783, 788-789, that a

defendant has due process protection from unreasonable preaccusation delay, the court

assumed, without any further discussion, that the same remedy applied to dismissals on

due process grounds." (Pinedo, at p. 973.) It concluded that "a dismissal . . . on this due

process ground terminates the proceedings and is an order that must be appealed or it

becomes final." (Ibid.)

The bar to refiling in the circumstances identified in Pinedo stems from the

"irreparable harm" caused by the delay. (See United States v. Ray (2d Cir. 2009)

578 F.3d 184, 191.) Once the delay has occurred, the prejudice to the defendant is

complete. Refiling the charges cannot cure the prejudice or resolve the constitutional

violation that led to the dismissal.

Here, by contrast, there was no finding of unreasonable preaccusation delay or

violation of defendants' speedy trial rights. The due process violation identified by the

trial court was based on the defendants' inability to obtain information from the federal

government. The harm alleged by defendants, and found by the trial court, was not

irreparable. It could have been resolved in further proceedings after the prosecution

14 refiled charges. Indeed, both the prosecution and defense counsel made efforts during the

refiled proceedings to obtain the information at issue. Pinedo does not apply.

In addition to Pinedo, defendants rely on a number of authorities, but they all

involve speedy trial violations or unreasonable preaccusation delay. (People v. Boysen

(2007) 165 Cal.App.4th 761, 771 (Boysen) [preaccusation delay, bar to refiling not at

issue]; People v. Abraham (1986) 185 Cal.App.3d 1221, 1224 [preaccusation delay, bar

to refiling not at issue]; Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2019)

§ 19.37 [speedy trial].) Again, the dismissal here was based on a due process violation

other than a speedy trial violation or unreasonable preaccusation delay. Defendants have

not shown that a dismissal on the specific due process ground at issue here bars refiling in

all circumstances or that the prosecution was barred from refiling charges under the

circumstances here.3

II

Due Process Violation: Standard of Review

On the merits, the district attorney argues that the trial court erred by finding a due

process violation and dismissing the charges. The parties dispute the applicable standard

3 Castaneda cites People v. Sanchez (2019) 41 Cal.App.5th 261 for the proposition that charges dismissed on due process grounds cannot be refiled. Sanchez does not stand for that proposition. It held, instead, that Penal Code section 871.5 did not empower a court to reinstate charges dismissed on due process grounds because those grounds are not enumerated in the statute itself. (Sanchez, at p. 266.) The court explained, "We have no doubt that Sanchez's motion to dismiss for vindictive prosecution was made and decided as a matter of constitutional due process. Such a dismissal is not one of the enumerated orders that may be reviewed pursuant to section 871.5, and we cannot add it." (Id. at pp. 267-268.) The constitutional limitation on the prosecution's ability to refile charges, when otherwise allowed by statute, was not at issue in Sanchez. 15 of review. Defendants argue for abuse of discretion or substantial evidence, and the

district attorney for a de novo standard. We conclude the ultimate issue presented in this

appeal is a mixed question of law and fact that is predominantly legal. We therefore

apply the de novo standard of review to the issue of whether due process precludes

prosecution of the defendants under the circumstances here.

"The standards of review for questions of pure fact and pure law are well

developed and settled. Trial courts and juries are better situated to resolve questions of

fact, while appellate courts are more competent to resolve questions of law.

Traditionally, therefore, an appellate court reviews findings of fact under a deferential

standard (substantial evidence under California law, clearly erroneous under federal law),

but it reviews determinations of law under a nondeferential standard, which is

independent or de novo review." (People v. Cromer (2001) 24 Cal.4th 889, 893-894,

fn. omitted.)

"Mixed questions of fact and law 'are those "in which the historical facts are

admitted or established, the rule of law is undisputed, and the issue is whether the facts

satisfy the [relevant legal] standard, or to put it another way, whether the rule of law as

applied to the established facts is or is not violated." [Citation.]' [Citation.] The review

of mixed questions thus involves a two-step process of first determining the facts relevant

to the issue being decided and then applying the law to those established facts.

[Citation.] Deference is given to the trial court in considering the relevant factual

findings: ' "[T]he power to judge the credibility of the witnesses, resolve any conflicts in

the testimony, weigh the evidence and draw factual inferences, is vested in the trial court.

16 On appeal all presumptions favor the exercise of that power, and the trial court's findings

on such matters, whether express or implied, must be upheld if they are supported by

substantial evidence." ' " (People v. Uribe (2011) 199 Cal.App.4th 836, 855-856

(Uribe).)

"The Supreme Court has explained that 'California and federal cases have deemed

the independent review standard appropriate for a diverse array of mixed law and fact

questions, often on the ground, among others, that such questions were constitutionally

significant and/or "predominantly legal." ' " (Uribe, supra, 199 Cal.App.4th at pp. 856-

857.) "[I]t is not universally true that the second step is subject to independent review in

a mixed question case. [Citation.] But whether an independent or more deferential

review standard is applied 'is influenced in part by the importance of the legal rights or

interests at stake. [Citation.]' [Citations.] Further, 'independent appellate review of a

mixed law and fact question is crucial when an excessively deferential appellate

affirmance risks error in the final determination of a party's rights, either as to the entire

case, or on a significant issue in the litigation.' " (Id. at p. 857.)

Thus, in Uribe, the appellate court applied the de novo standard of review to a trial

court order granting a nonstatutory motion to dismiss based on outrageous governmental

conduct in violation of due process. (Uribe, supra, 199 Cal.App.4th at p. 858.)

Similarly, in People v. Salazar (2005) 35 Cal.4th 1031, 1042, our Supreme Court applied

the de novo standard of review to a Brady claim, i.e., the denial of due process based on

governmental nondisclosure of material exculpatory evidence.

17 Here, the district attorney appeals a nonstatutory dismissal order based on due

process, as in Uribe. The alleged due process violation was based on nondisclosure of

evidence, as in Salazar. The ultimate issue in this appeal is whether prosecution of the

defendants under the circumstances here violates their right to due process of law.

Resolving this issue primarily requires us to interpret the guarantees of due process in this

context, which is a legal question. And, it is undisputed that this issue implicates

important legal rights and interests, i.e., the constitutional rights of the defendants and the

district attorney's interest in prosecuting alleged wrongdoing. (See Uribe, supra,

199 Cal.App.4th at p. 858.) It is also outcome-determinative. It is therefore properly

subject to de novo review.

To justify review for substantial evidence, defendants again rely on authorities

considering preaccusation delay or speedy trial violations. (See People v. Mitchell (1972)

8 Cal.3d 164, 167; People v. Mirenda (2009) 174 Cal.App.4th 1313, 1330; Boysen,

supra, 165 Cal.App.4th at p. 777; People v. Conrad (2006) 145 Cal.App.4th 1175, 1184.)

These authorities hold that it is a question of fact, for determination by the trial court,

whether the delay is unreasonable and prejudicial. This question is not analogous to the

question presented in this appeal, which primarily concerns the scope of the due process

right itself.

To justify review for abuse of discretion, defendants invoke the rule that dismissal

orders under Penal Code section 1385 are generally reviewed under that standard. (See

People v. Carmony (2004) 33 Cal.4th 367, 374; People v. Pedroza (2014)

231 Cal.App.4th 635, 650.) This rule is inapplicable because the dismissal order here

18 was not based on section 1385. However, even if the statute were applicable, the

underlying basis for the court's dismissal order was its interpretation of the right to due

process. Because this interpretation is a legal matter, we review the underlying basis of

the court's order de novo. (Pedroza, at p. 650.) Even if we were to apply the abuse of

discretion standard of review, the dismissal order was based on an incorrect legal

standard, which was prejudicial to the prosecution, and it was therefore an abuse of

discretion. (See Uribe, supra, 199 Cal.App.4th at p. 859.)

III

Due Process Violation: Merits of the Dismissal Order

In dismissing the criminal charges against defendants, the trial court was

persuaded that the federal government's refusal to produce potentially exculpatory

evidence violated defendants' due process rights. The district attorney contends the trial

court erred because neither due process nor any other constitutional provision compelled

dismissal under the circumstances here. We agree.

"The right of an accused in a criminal trial to due process is, in essence, the right

to a fair opportunity to defend against the State's accusations. The rights to confront and

cross-examine witnesses and to call witnesses in one's own behalf have long been

recognized as essential to due process." (Chambers v. Mississippi (1973) 410 U.S. 284,

294.) "The right to offer the testimony of witnesses, and to compel their attendance, if

necessary, is in plain terms the right to present a defense, the right to present the

defendant's version of the facts as well as the prosecution's to the jury so it may decide

where the truth lies. Just as an accused has the right to confront the prosecution's

19 witnesses for the purpose of challenging their testimony, he has the right to present his

own witnesses to establish a defense. This right is a fundamental element of due process

of law." (Washington v. Texas (1967) 388 U.S. 14, 19.)

However, "more than the mere absence of testimony is necessary to establish a

violation of the right." (United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 867

(Valenzuela-Bernal).) "[T]he constitutional right to compulsory process is not 'an

unfettered right to offer testimony' that 'automatically and invariably outweigh[s]

countervailing public interests.' [Citation.] A defendant claiming a violation of this right

must establish both that he was deprived of the opportunity to present material and

favorable evidence and that the deprivation was arbitrary or disproportionate to any

legitimate purpose." (People v. Bryant, Smith, and Wheeler (2014) 60 Cal.4th 335, 367

(Bryant); accord, Holmes v. South Carolina (2006) 547 U.S. 319, 324 (Holmes).)

Pertinent to the circumstances here, our Supreme Court has recognized that the

traditional jurisdictional limits of a state court, under our federal system, do not violate

due process. "[A]s the compulsory process of a court ordinarily runs only to those

persons who can be located within its jurisdiction, the constitutional provisions do not

give the defendant a right to compel the attendance of a witness from beyond that

jurisdiction." (People v. Cavanaugh (1968) 69 Cal.2d 262, 266.)

For example, in circumstances strikingly similar to this matter, our Supreme Court

has held that the federal government's refusal to produce potentially exculpatory evidence

did not deprive the defendant of a fair trial. (People v. Parham (1963) 60 Cal.2d 378,

382 (Parham).) In that case, the defendant was placed in a lineup, where he was

20 identified by several witnesses to various robberies. (Id. at p. 380.) These witnesses also

identified the defendant at trial. (Ibid.) The witnesses testified that, after the lineup, they

gave signed statements to agents of the Federal Bureau of Investigation (FBI). (Ibid.) A

local police officer was present during the FBI interviews and took notes. (Ibid.)

Defense counsel moved for production of the signed statements, but the prosecution did

not have access to them. (Id. at pp. 380-381.) Defense counsel then subpoenaed an FBI

agent. (Id. at p. 381.) The agent responded that he could not produce the signed

statements or testify about them based on a standing order of the Department of Justice

restricting disclosure of information in its files. (Id. at p. 381 & fn. 1.)

Citing Touhy, supra, 340 U.S. 432, our Supreme Court held that the standing order

"compelled [the agent] to refuse to produce the F.B.I. file. That order is valid and has the

force of federal law. [Citations.] The trial court was therefore bound by the executive

order and properly refused to hold [the agent] in contempt." (Parham, supra, 60 Cal.2d

at p. 381, fn. omitted.) The Supreme Court rejected the defendant's argument that

admitting the witnesses' testimony, without the production of the prior signed statements,

deprived him of a fair trial. It explained, "Had the witnesses' statements been in the

possession of the prosecution an order to produce would have been proper. [Citations.]

Moreover, had defendant been prosecuted under federal law the statements could have

been produced under the Jencks Act. [Citation.] It does not follow, however, that the use

of the witnesses' testimony even though their prior statements were unavailable deprived

defendant of a fair trial. The prosecution did not withhold the statements, but on the

contrary made every effort to obtain them from the F.B.I. The prosecution cannot be

21 penalized because those efforts failed. The prosecution is not penalized if, through no

fault of state officials, a material witness for the defense is unavailable at trial.

[Citations.] It does not appear that the statements were unavailable because of any

improper activity by state officials. The police were under no compulsion to take

statements from the witnesses. [Citation.] There is nothing to show that the police

conspired with the federal agents to deprive defendant of the statements. The prosecution

was therefore entitled to use the testimony of the witnesses even though their signed

statements were unavailable." (Id. at pp. 381-382.)

Defendants attempt to distinguish Parham because local police were present for

the FBI interviews and took notes, whereas here the DEA interviewed E.G. before local

police became involved. We disagree that this factual distinction affects the applicability

of Parham. Despite the presence of local police, only the FBI had access to the

witnesses' signed statements. (Parham, supra, 60 Cal.2d at p. 380.) These signed

statements were relevant evidence and potentially exculpatory. Our Supreme Court noted

that the prosecution could have been ordered to produce the statements if they were in its

possession. (Id. at pp. 381-382.) The issue in Parham, as here, was whether the federal

government's refusal to produce relevant and potentially exculpatory evidence violated a

defendant's right to a fair trial in a state prosecution. Our Supreme Court held that such

refusal does not infringe this right: "The prosecution is not penalized if, through no fault

of state officials, a material witness for the defense is unavailable at trial." (Id. at p. 382.)

Other state courts that have considered similar issues have come to the same

conclusion. For example, in State v. Vance (Wash.Ct.App. 2014) 339 P.3d 245, the Court

22 of Appeals of Washington reversed an order dismissing criminal charges against a

defendant based on the federal government's refusal to allow two federal agents to

provide testimony or disclose records. It held, "There is no evidence that the agents were

under the State's possession and control or that the State could compel the agents to

submit to interviews." (Id. at p. 250.) Likewise, the trial court lacked jurisdiction to

compel the federal employees to testify or produce documents. (Id. at p. 252.) The trial

court therefore abused its discretion by finding that the prosecution had violated its

discovery obligations. (Ibid.) Similarly, in State v. Andrews (La. 1971) 250 So.2d 359,

367-368, the Louisiana Supreme Court held that a defendant was not denied due process

or a fair trial when two federal agents refused to testify based on federal regulations

prohibiting disclosure of official information.

In their arguments in favor of a due process violation, defendants focus on the fact

that a governmental agency, here the Department of Justice, refused to produce the

requested information. Although they are vague in their reference to due process, the

obligation of the government to produce material exculpatory evidence under the due

process clause is specific. It is governed by Brady, supra, 373 U.S. 83, and its progeny.

"The Fourteenth Amendment to the federal Constitution prohibits states from

denying any person due process of law. [Citation.] This guarantee of due process affords

criminal defendants the right to a fair trial, 'impos[ing] on States certain duties consistent

with their sovereign obligation to ensure "that 'justice shall be done.' " ' [Citation.] [¶]

Prosecutors, as agents of the sovereign, must honor these obligations. [Citations.] A

prosecutor must refrain from using evidence that the prosecutor knows to be false.

23 [Citations.] A prosecutor must correct false evidence 'when it appears.' [Citation.] And,

under Brady, a prosecutor must disclose to the defense evidence that is 'favorable to [the]

accused' and 'material either to guilt or to punishment.' " (Association for Los Angeles

Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 40; accord, United States v.

Bagley (1985) 473 U.S. 667, 675 ["The Brady rule is based on the requirement of due

process."].)

"Under Brady, supra, 373 U.S. 83, and its progeny, the prosecution has a

constitutional duty to disclose to the defense material exculpatory evidence, including

potential impeaching evidence. The duty extends to evidence known to others acting on

the prosecution's behalf, including the police." (People v. Superior Court (Johnson)

(2015) 61 Cal.4th 696, 709.) "Thus, the prosecution is responsible not only for evidence

in its own files but also for information possessed by others acting on the government's

behalf that were gathered in connection with the investigation. But the prosecution

cannot reasonably be held responsible for evidence in the possession of all governmental

agencies, including those not involved in the investigation or prosecution of the case.

'Conversely, a prosecutor does not have a duty to disclose exculpatory evidence or

information to a defendant unless the prosecution team actually or constructively

possesses that evidence or information. Thus, information possessed by an agency that

has no connection to the investigation or prosecution of the criminal charge against the

defendant is not possessed by the prosecution team, and the prosecutor does not have the

duty to search for or to disclose such material.' " (In re Steele (2004) 32 Cal.4th 682,

697.)

24 Defendants do not contend that the DEA was part of the prosecution team in this

case, such that the prosecution was required to disclose information known to the DEA

under Brady. We likewise see no evidence that the DEA was acting on the prosecution's

behalf or as part of a joint investigation of defendants. (See Barnett v. Superior Court

(2010) 50 Cal.4th 890, 904 [out-of-state law enforcement agencies not part of the

prosecution team].) Under Brady, no due process violation occurred here.4

Eschewing rigorous analysis under Brady, defendants contend some other, more

general due process violation occurred. "The whole foundation for Brady, however, is

due process and its requirement that an accused be afforded a fair trial." (People v.

Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 50, fn. 11.) In any event, for reasons

we have already discussed, we conclude no general due process violation occurred here

because no arbitrary state rule deprived the defendants of their defense. (See Holmes,

supra, 547 U.S. at p. 324; Bryant, supra, 60 Cal.4th at p. 367.) Under well-settled

principles of sovereign immunity, neither the prosecution nor the trial court had the

ability to compel testimony or the production of documents by the DEA. This

4 Other state courts have likewise found no Brady violation where the federal government refuses to provide testimony or produce documents under similar circumstances. (See, e.g., Diallo v. State (Md.Ct.App. 2010) 994 A.2d 820, 841; People v. Rodriguez (1989) 546 N.Y.S.2d 861, 862.) Federal courts reviewing the habeas claims of state prisoners have come to the same conclusion (see, e.g., Goff v. Bagley (6th Cir. 2010) 601 F.3d 445, 474-476; Mir Aimal Kasi v. Angelone (4th Cir. 2002) 300 F.3d 487, 504-507), as have federal courts considering federal defendants' Brady-related claims regarding potentially exculpatory evidence held by foreign governments (see, e.g., United States v. Reyeros (3d Cir. 2008) 537 F.3d 270, 280-285; United States v. Hughes (1st Cir. 2000) 211 F.3d 676, 687-689). 25 circumstance did not deprive defendants of a fair trial. (See Parham, supra, 60 Cal.2d at

p. 382.)

We note that a due process violation may also be found in some cases where a

defendant is completely precluded from pursuing his or her principal defense. (People v.

Masters (2016) 62 Cal.4th 1019, 1079 (Masters).) The record does not support such a

violation here. As we discuss further below, even without testimony and documents from

26 the DEA, defendants have ample impeachment evidence against E.G. The absence of

any DEA evidence does not preclude them from arguing that E.G. is not credible.5

To the extent defendants rely more specifically on the right to compulsory process,

confrontation, or cross-examination, we follow our Supreme Court (as we must) in

rejecting such reliance: "As we have observed, invocation of the confrontation or

compulsory process clauses in a claim involving pretrial discovery 'is on a weak footing'

because it is unclear whether or to what extent those constitutional guarantees grant

5 Gracia analogizes the federal government's refusal to disclose information here to a journalist's refusal to disclose information under California's newspersons' shield law (Cal. Const., art. I, § 2; Evid. Code, § 1070). Our Supreme Court has held that the absolute privilege in the shield law "is overcome in a criminal proceeding on a showing that nondisclosure would deprive the defendant of his federal constitutional right to a fair trial." (Delaney v. Superior Court (1990) 50 Cal.3d 785, 805; accord, Miller v. Superior Court (1999) 21 Cal.4th 883, 890-891.) To address this situation, the Supreme Court established a two-part test. "At the threshold, the defendant must show 'a reasonable possibility [that] the information will materially assist his defense.' [Citation.] If he makes this showing, then the court is to proceed to the second stage of the inquiry and balance the criminal defendant's and the newsperson's rights, considering whether the unpublished information in question is confidential or sensitive, the degree to which the information is important to the criminal defendant, whether there is an alternative source of unpublished information, and whether there are other circumstances which may render moot the need to avoid disclosure." (Miller, at pp. 891-892.) To the extent these authorities are relevant at all, they do not assist the defendants. In establishing a second- stage balancing test—and therefore acknowledging that disclosure is not always required—our Supreme Court recognized that a criminal defendant's interest in disclosure must yield in certain circumstances to competing interests. It does not support defendants' position that their right to a fair trial will necessarily be violated by the nondisclosure of information here. We disagree with Gracia's suggestion that the threshold inquiry under the shield law, whether there is " 'a reasonable possibility [that] the information will materially assist his defense,' " is the applicable test for violation of his right to a fair trial. The threshold inquiry merely leads to the second-stage balancing test. A court may still determine that disclosure is not required, and a defendant's right to a fair trial is not violated, notwithstanding the threshold determination that the information will materially assist the defense. 27 pretrial discovery rights to a defendant. [Citations.] In Pennsylvania v. Ritchie (1987)

480 U.S. 39 [(Ritchie)], the defendant unsuccessfully subpoenaed the confidential files of

a child protective services agency that had investigated reports of abuse by the

defendant's 13-year-old daughter, the alleged victim in the case. When the issue reached

the United States Supreme Court, the defendant argued as defendant does now that the

Sixth Amendment's confrontation and compulsory process clauses guaranteed him the

right to pretrial discovery of information necessary for effective cross-examination at

trial. (Ritchie, supra, at p. 51.) Noting that the applicability of Sixth Amendment

principles to the prosecution's production of exculpatory evidence was an unsettled

question, the high court declined to address that issue and decided the case 'under the

broader protections' of the due process clause. (Ritchie, supra, at p. 56.) Likewise here,

we have examined defendant's claim of error under the 'clear framework for review'

provided by Brady and its progeny (Ritchie, supra, at p. 56), and conclude that no

constitutional violation occurred. Defendant invites this court to recognize a Sixth

Amendment violation when a defendant is denied discovery that results in a significant

impairment of his ability to investigate and cross-examine a witness. 'We do not,

however, see an adequate justification for taking such a long step in a direction the

United States Supreme Court has not gone.' " (People v. Clark (2011) 52 Cal.4th 856,

982-983 (Clark).)

Here, defendants have likewise failed to show any violation of right to compulsory

process, confrontation, or cross-examination. The right to compulsory process is

analyzed under the due process framework we have already discussed. (Ritchie, supra,

28 480 U.S. at p. 56; Clark, supra, 52 Cal.4th at p. 983; see Holmes, supra, 547 U.S. at

p. 324; Bryant, supra, 60 Cal.4th at p. 367.) The right to confrontation pertains only to

adverse witnesses who offer testimony at trial. There is no indication that the prosecution

will call the DEA agents to testify against defendants, so the confrontation clause is not

implicated. (See United States v. Soriano-Jarquin (4th Cir. 2007) 492 F.3d 495, 505.) It

appears the prosecution may call E.G., but defendants have not shown their right to

confront or cross-examine him will be violated. " '[T]he Confrontation Clause guarantees

only "an opportunity for effective cross-examination, not cross-examination that is

effective in whatever way, and to whatever extent, the defense might wish." ' " (United

States v. Owens (1988) 484 U.S. 554, 559; accord, People v. Anderson (2001) 25 Cal.4th

543, 577, fn. 11 ["[T]he high court has never held that the confrontation clause requires

more than the opportunity to ask the witness questions pertinent to his or her

credibility."]; People v. Foalima (2015) 239 Cal.App.4th 1376, 1391.) As noted, our

Supreme Court has refused "to recognize a Sixth Amendment violation when a defendant

is denied discovery that results in a significant impairment of his ability to investigate and

cross-examine a witness." (Clark, at p. 983.)

Moreover, even if defendants had shown that the federal government's refusal to

allow testimony or produce documents were improper, they have not established a due

process or other constitutional violation because they have not shown this evidence was

material in the constitutional sense. "Due process guarantees that a criminal defendant

will be treated with 'that fundamental fairness essential to the very concept of justice. In

order to declare a denial of it we must find that the absence of that fairness fatally

29 infected the trial; the acts complained of must be of such quality as necessarily prevents a

fair trial.' " (Valenzuela-Bernal, supra, 458 U.S. at p. 872.) The improper limitation of a

defendant's ability to present evidence only prevents a fair trial where the evidence is

material, i.e., "there is a reasonable likelihood that the testimony could have affected the

judgment of the trier of fact." (Id. at p. 874.) " ' "Materiality . . . requires more than a

showing that the suppressed evidence would have been admissible [citation], that the

absence of the suppressed evidence made conviction 'more likely' [citation], or that using

the suppressed evidence to discredit a witness's testimony 'might have changed the

outcome of the trial' [citation]. A defendant instead 'must show a "reasonable probability

of a different result." ' " ' " (Masters, supra, 62 Cal.4th at p. 1067.)

The materiality requirement applies even when a defendant does not have access

to the evidence at issue. As the United State Supreme Court has explained, "[W]hile this

difference may well support a relaxation of the specificity required in showing

materiality, we do not think that it affords the basis for wholly dispensing with such a

showing." (Valenzuela-Bernal, supra, 458 U.S. at p. 870.) "[C]ourts should afford some

leeway for the fact that the defendant necessarily proffers a description of the material

evidence rather than the evidence itself. Because determinations of materiality are often

best made in light of all of the evidence adduced at trial, judges may wish to defer ruling

on motions until after the presentation of evidence." (Id. at p. 874, fn. omitted.)

Even under this relaxed standard, defendants have not shown any evidence

obtained from the DEA would be material at trial (and there was no basis for the trial

court to make such a finding). Defendants primarily contend that E.G. may have made

30 exculpatory or inconsistent statements during his DEA interview. But the existence of

such statements is entirely speculative—and it would be equally speculative to conclude

that E.G. made additional inculpatory or consistent statements, thereby bolstering the

prosecution's case at trial. Even if E.G. made exculpatory or inconsistent statements, the

significance of any such statements at trial is unknown, both because the statements

themselves are unknown and because the evidence to be introduced at trial is also

unknown. (See, e.g., Kwan Fai Mak v. FBI (9th Cir. 2001) 252 F.3d 1089, 1094.) E.G.'s

credibility may not be a dispositive issue. Or, if it is, other evidence may be introduced

that impeaches him more effectively than any statements made to the DEA. We note, in

this context, that the transcript of the preliminary hearing shows that defendants have

ample grounds on which to impeach E.G. At this stage, defendants have not established a

constitutional violation.

Defendants claim the prosecution admitted in the trial court that the DEA evidence

was material in the constitutional sense. During the hearing on the first motion to

dismiss, the prosecutor stated, "I will readily concede that the information that is sought

after in this case is Brady. It, by definition, includes information that would hurt the

prosecution, help the defense, and/or mitigate the situation here." In context, however,

the prosecutor was acknowledging that DEA documentation of E.G.'s interview was the

type of information that California prosecutors would normally disclose to ensure their

Brady obligations are met. Indeed, later in his argument, the prosecutor argued that the

evidence was not material because defendants already had ample impeachment material

against E.G.

31 The prosecutor's argument during the second hearing is instructive. He stated, "I

am not saying there's Brady—that I know for a fact that there's something that shows

[E.G.] is lying or that he's wrong or something that shows he's inconsistent. [¶] What I

am saying is there is going to be written documentation from the DEA side. I haven't

seen it. I don't know what it is. [¶] . . . [¶] There is no doubt in my mind when I say that

there is potential Brady information or Brady information that's out there. I am

conceding that, yeah, there's definitely reports and information that could potentially

mitigate, exonerate, show discrepancies, show impeachment out there. [¶] I am not

saying that there's definitely something out there that, if you had this, would be the

smoking gun." It is clear from the record that the prosecution was using "Brady

information" in the sense that information of that type would normally be disclosed by

the prosecution, not that failure to disclose the information would necessarily establish all

of the elements of a Brady violation, including materiality.

Although we reject defendants' constitutional arguments, we note they are not left

without a remedy. They may challenge the federal government's refusal to disclose

information in federal district court under the APA (5 U.S.C. § 701 et seq.). (Williams,

supra, 170 F.3d at p. 434; Elko County, supra, 109 F.3d at p. 557, fn. 1; Shah v. Dept. of

Justice (D.Nev. 2015) 89 F.Supp.3d 1074, 1079.) "On review, district courts have

jurisdiction to set aside agency action that is 'arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law,' including action that is 'contrary to

constitutional right, power, privilege, or immunity.' 5 U.S.C.A. § 706(2)(A)-(B). In

addition, the APA vests the district court with authority to 'compel agency action

32 unlawfully withheld or unreasonably delayed.' 5 U.S.C.A. § 706(1). Therefore, a state

criminal defendant, aggrieved by the response of a federal law enforcement agency made

under its regulations, may assert his constitutional claim to the investigative information

before the district court, which possesses authority under the APA to compel the law

enforcement agency to produce the requested information in appropriate cases."

(Williams, at p. 434.) This procedure complies with the constitution and provides a

forum for the defendants to assert their claim to information in the possession of the

DEA. (See Donatoni v. Dept. of Homeland Security (E.D.Va. 2016) 184 F.Supp.3d 285,

289.)6

At base, a due process violation may be found where a rule " 'offends some

principle of justice so rooted in the traditions and conscience of our people as to be

ranked as fundamental.' [Citations.] Fundamental principles of justice are those that

' " 'lie at the base of our civil and political institutions' " ' and ' "define 'the community's

sense of fair play and decency.' " ' " (City of Los Angeles v. Superior Court (2002)

29 Cal.4th 1, 11.) As discussed in this opinion, these fundamental principles do not exist

in a vacuum. Established federal and state precedent guides courts in identifying and

applying them. The trial court here was rightly concerned with the defendants' ability to

6 In light of our conclusion that defendants have not established any constitutional violation, we need not consider the district attorney's argument that defendants must pursue a challenge under the APA before they can assert any such violation. (See Taylor v. Illinois (1988) 484 U.S. 400, 410 ["There is a significant difference between the Compulsory Process Clause weapon and other rights that are protected by the Sixth Amendment—its availability is dependent entirely on the defendant's initiative."]; People v. Jacinto (2010) 49 Cal.4th 263, 273-274.) 33 obtain a fair trial. But it erred by not correctly interpreting that right under established

case law.

DISPOSITION

The dismissal order is reversed.

GUERRERO, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

34