Osvaldo Rojas on Tuesday showed up for a court hearing in his misdemeanor driving under the influence case. The 42-year-old Modesto man never made it inside the Stanislaus County courtroom.
Instead, he was met by three plain-clothes Immigration and Customs Enforcement agents. They were waiting for him at the metal detectors near the front entrance of the Stanislaus Superior Courthouse in downtown Modesto.
The ICE agents took him into custody on suspicion of entering the country illegally. He was taken to an ICE detention facility in Stockton.
Aaron Villalobos, Rojas' criminal defense attorney, said the prosecutor communicated with ICE officials as part of her investigation into Rojas' case, a misdemeanor DUI charge that involved no injuries. The case had remained dormant for nearly four years. He said his client had voluntarily put his case back on the court's calendar..
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"He was trying to take responsibility for an old case," Villalobos said this week. "He was trying to do right by the California courts system."
Stanislaus County District Attorney Birgit Fladager said the prosecutor was responding to a defense motion to dismiss the misdemeanor case, because Rojas' attorney argued that authorities could have brought the defendant to court at any time in the past four years.
"The District Attorney’s Office does not enforce federal immigration law," Fladager said in a news release sent out Thursday afternoon. "The DA has never had a practice of informing ICE that a defendant, witness or victim can or should be deported."
As part of her inquiry, Deputy District Attorney Ahnna Reicks learned that Rojas had been deported to Mexico twice since his 2013 DUI arrest.
"She did exactly what she should have done to rebut the erroneous statements.," Fladager said earlier this week.
The Bee contacted ICE officials on Tuesday inquiring about Rojas' arrest. As of Thursday afternoon, ICE officials had not released any information or a statement about his arrest.
Rojas' arrest by ICE agents this week touches on a heated debate. Should federal immigration officials be in state courthouses looking for people suspected of entering the country illegally? And what role if any should local authorities have in those federal efforts?
California Chief Justice Tani Cantil-Sakauye has called for ICE officials to stop looking for people to detain in and around courtrooms.
Cantil-Sakauye told The Sacramento Bee that those here legally and undocumented immigrants are less likely to report crimes, cooperate as witnesses and seek help if they are victims of crimes since President Donald Trump took office in January.
Federal Homeland Security and immigration officials say enforcement actions should be deterred at "sensitive locations," such as schools, places of worship and hospitals. Courthouses are not considered sensitive locations.
A California bill submitted last week would bar federal immigration officials from schools and state-owned building. It would force federal officers to get warrants before they visit public sites for surveillance or arrests.
The bill was submitted by Sen. Ricardo Lara, D-Bell Gardens three days after Trump announced that he would end the Deferred Action for Childhood Arrivals program that protects some young immigrants from deportation.
In Rojas' case, a witness told the California Highway Patrol that Rojas was driving a vehicle that veered off the road, jumped a curb and crashed with a utility pole on South Ninth Street in Modesto on March 24, 2013. A CHP officer reported that Rojas appeared drunk.
Rojas failed as field sobriety test and was taken into custody. He agreed to a blood test at a local hospital. A toxicology screening determined that Rojas had a 0.18 percent blood alcohol content level, more than twice the legal limit, according to court filed documents by the prosecution.
Prosecutors say Rojas was taken to the Stanislaus County Jail, where he signed a promise to appear in court May 24, 2013, for his arraignment hearing on the DUI charge. On March 25, 2013, ICE agents took Rojas into custody and deported him to Mexico.
Less than a month later, Rojas entered the country illegally and returned to Stanislaus County, according to prosecutors. ICE agents found Rojas again and deported him to Mexico on April 7, 2013.
On May 9, 2013, prosecutors formally charged Rojas with DUI and driving without a valid license, each misdemeanor offenses. Rojas failed to appear for his May 2013 arraignment, so Judge Susan Siefkin issued a $2,500 bench warrant for Rojas' arrest.
Rojas earlier this year voluntarily placed his case on the Stanislaus court calendar to resolve his warrant status, according to a motion to dismiss the DUI case filed by Villalobos.
The defense attorney argued that Rojas could've easily been brought to court in the past four years had the prosecution done its due diligence and searched for him at the same Modesto home address listed in the arrest warrant.
Villalobos submitted to the court copies of Rojas' income tax forms for 2014 through 2016, along with a W2 form from his employer, a local trucking company, to demonstrate Rojas has lived openly in Modesto.
He argued that prosecution's inaction violated his right to a speedy trial, which prevented his attorney from questioning witnesses in a timely manner and examining the blood sample and CHP dispatch records, which had both been already destroyed. Villalobos said that the judge would've ruled in Rojas' favor had ICE agents not arrested him before Tuesday's hearing began.
“Without justification, the (prosecution) should not be allowed to benefit from their own negligence and bring a case forward that the defendant cannot defend himself against," Villalobos wrote in his filed motion. "The delay is unjustifiable."
Reicks, the prosecutor in Rojas' case, said the defendant has not been living openly in this county; he doesn't have a California driver's license or identification card, and a search in federal and state databases showed he doesn't have a valid social security number as indicated on his tax documents.
If the defendant has been living openly in this county since his second deportation, Reicks asked why Rojas didn't place his case on calendar sooner than six months ago.
"Staleness does not equal a dismissal," Reicks wrote in her filed opposition to the defense motion.
Rojas' attorney said he's never had a client in a pending case apprehended after prosecutors communicated with immigration officials, especially in a misdemeanor case. He said the prosecutor's actions sends a chilling message to people who want to face their charges in state court.
"People are not going to want to come to court," Villalobos said. "People should be encouraged to resolve their criminal matters rather than be discouraged due to external factors."
The district attorney said her office doesn't have a practice of advising ICE officials of the immigration status of any defendant or witness. She said prosecutors don’t necessarily know about someone's immigration status, nor do they normally inquire.
"We are very interested in ensuring that both defendants and witnesses appear in court; we do not want them to be afraid to come to court," Fladager said.
The prosecutor was simply investigating Rojas' claim to the court that he had been living openly in Modesto for the past four years, which Fladager said was not true.
Shortly after Superior Court Judge Rick Distaso was informed that Rojas was taken into custody by ICE agents in the courthouse, Reicks dismissed the DUI case because the defendant was no longer available to the state court.
"Frankly, I would have much preferred that have not happened; our preference would have been to hold the defendant accountable for his DUI charge," Fladager said.
Modesto attorney Patrick Kolasinski, who practices immigration and criminal defense law, said local prosecutors violated Rojas' California civil rights, which prevent discrimination against people based on immigration status.
Kolasinski, who is campaigning to take Fladager's job, said prosecutors violated the spirit of the law in Rojas' case, even though it's not actionable and won't result in a lawsuit against the District Attorney's Office.
"The DA's Office should always follow the law," Kolasinski said this week.
If people fear ICE agents waiting for them at the courthouse, Kolasinski said these defendants will stay home and avoid prosecution. He said victims won't receive restitution, innocent defendants will not be exonerated, unresolved cases will pile up adding to an already clogged Stanislaus County court system and witnesses will be less willing to testify.
Kolasinski said prosecutors should be spending more energy on serious criminal cases, not communicating with ICE agents about a misdemeanor DUI charge with no injuries and a defendant wanting to proceed with his case.
"It doesn't make any sense," he said. "It encourages people to hide in the shadows and not want to face the music."
Deputy District Attorney John R. Mayne also is running to unseat his boss, Fladager. A prosecutor in this county for the past 16 years, Mayne said he has communicated before with ICE officials about finding people who might already be in federal custody to bring to state court.
The prosecutor also said he's spoken to immigration officials about obtaining travel visas for witnesses and victims in criminal cases to ensure they make it court. Mayne declined to speak specifically about Rojas' case, but he said it's legitimate for prosecutors to communicate with immigration officials when trying to determine whether a defendant is telling the truth.
He said every case is different, and if elected he wouldn't deter prosecutors from speaking to ICE officials as part of their fact-finding prosecutorial function.
"There can't be a blanket rule never to talk about a defendant with another government agency," Mayne said this week.
Kolasinski said local prosecutors do not need to help federal immigration officials find anyone, especially someone charged with a misdemeanor DUI. He said ICE has numerous agents who can find people anywhere, and ICE agents should be focused on finding those convicted of serious crimes like murder and sexual assault.
Kolasinski said Rojas on Tuesday was being held at an ICE detention facility in Stockton. Kolasinski said he has spoken to Rojas' family in Modesto. He said Rojas will likely be deported immediately if he has been ordered out of the country before by immigration officials.