P. v. Jacinto 4/23/08 CA1/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A117076

Case Date: 07/30/2008

Preview:Filed 4/23/08

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

THE PEOPLE, Plaintiff and Appellant, v. ARMANDO MONTER JACINTO, Defendant and Respondent. (Sonoma County Super. Ct. No. SCR487837) A117076

In this case, a defense witness, incarcerated in county jail and facing deportation, was served with a subpoena requiring his personal appearance at trial. Upon completion of his sentence, the witness was immediately deported. Asserting a deprivation of constitutional rights under the Fifth, Sixth, and Fourteenth Amendments, defendant Armando Monter Jacinto (Jacinto) moved the trial court to dismiss an information charging him with attempted murder and assault with a deadly weapon. The trial court granted the motion and the People appeal from the dismissal order. The People contend the trial court erred in ordering dismissal because there was no state action. Alternatively, the People urge, "accepting that the state cooperated with federal authorities to deport the witness, [Jacinto] failed to demonstrate that state officials [acted with] knowledge of the materiality of the witness's testimony . . . ." and in bad faith. We agree with the former contention and conclude Jacinto failed to establish "state action." He has not shown any knowledge of the materiality of the witness's testimony by the jailers or any member of the prosecutorial team. Accordingly, we reverse.

1

FACTUAL AND PROCEDURAL BACKGROUND The facts relating to the charged offenses are taken from the preliminary hearing. Eric Garcia and Victor Retana went to a restaurant at about 6:30 p.m. on May 12, 2006. Others, including Jacinto and a woman, were also at the restaurant. Garcia testified that he lost some money in a jukebox and asked the restaurant owner for a refund. Jacinto told the owner not to give a refund, but the owner gave Garcia his money back. As Garcia was leaving the restaurant, he saw Retana standing near Jacinto, the woman, the owner, and an older man. Retana and Jacinto pushed each other, then Jacinto "moved his hand" and Retana "jumped back." Retana held his side and started to bleed profusely.1 Garcia did not see anyone with a knife and did not see the incident clearly because Jacinto, the woman, the owner and the older man were all "pushing at the time of the stabbing[.]" Garcia heard the woman deny she had stabbed Retana. A detective who interviewed Retana testified that according to Retana, Garcia got into an argument with an older man, and Jacinto intervened and began arguing with Garcia. Retana stepped in to help Garcia and Jacinto pushed Retana. When Retana pushed back, Jacinto stabbed him. Retana identified Jacinto from a photographic lineup as the person who had stabbed him. Retana confirmed it was Jacinto, and not a woman, who stabbed him. On June 13, 2006, an information was filed charging Jacinto with attempted murder (

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