Vasquez v. Kirkland

• Decision Date: 20 July 2009
• Docket Number: No. 08-55699.,08-55699.
• Citation: 572 F.3d 1029
• Parties: Daniel VASQUEZ, Petitioner-Appellant, v. R.J. KIRKLAND, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

572 F.3d 1029

Daniel VASQUEZ, Petitioner-Appellant, v. R.J. KIRKLAND, Warden, Respondent-Appellee.

No. 08-55699.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 4, 2009.

Filed July 20, 2009.

Michael Tanaka, Deputy Federal Public Defender (argued) and Sean K. Kennedy, Federal Public Defender, Los Angeles, CA, for the petitioner-appellant.

David F. Glassman, Deputy Attorney General (argued), Edmund G. Brown, Jr., Dane R. Gillette, Pamela Hamanaka, and Steven D. Matthews, Office of the California Attorney General, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California, Andrew J. Guilford, District Judge, Presiding. D.C. No. 2:05-cv-00589-AG-JWJ.

Before: B. FLETCHER, RAYMOND C. FISHER and RONALD M. GOULD, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge:

Daniel Vasquez, a California prisoner, appeals the district court's denial of his petition for a writ of habeas corpus. Vasquez was convicted in California state court of the first-degree murder of Frank Hernandez. He alleges that he was denied his Sixth Amendment rights under the Confrontation Clause because he was unable effectively to cross-examine the prosecution's key witness, Carmen Zapata. Zapata, the victim's mother, is deaf, cannot speak, and has never learned a standard sign language. Rather, she communicates by using a combination of signs, gestures, facial expressions, and lip reading. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We affirm the denial of Vasquez's petition because the California Court of Appeal's decision to affirm Vasquez's conviction was neither contrary to nor an objectively unreasonable application of clearly established federal law.

I.

On the afternoon of August 3, 2001, Frank Hernandez, a member of the Eastlake gang, was at home with his mother Carmen Zapata, who is deaf, and his girlfriend Shirley Sanchez.¹ Hernandez and his mother were in the living room of their apartment, and Sanchez was in a bedroom.

Zapata felt a "boom" from a gunshot, then saw Hernandez fall to the floor. Looking up, she saw a young man standing in the doorway holding a gun. The man fired a second shot at Hernandez. Zapata grabbed the shooter's hand and tried to close the door, but the shooter put his foot in the doorway to prevent her from doing so. Zapata was face-to-face with the shooter during this struggle.

After Sanchez heard the first shot, she entered the living room, where she saw "some guy" shooting while Zapata tried to protect her son. Sanchez helped Zapata force the door closed, shutting the shooter out of the apartment. Zapata waited a few minutes and then went to a neighbor for help calling the police. The police received the 911 call at 1:25 p.m. When they arrived, they found Hernandez dead of gunshot wounds to the chest and abdomen.

At the police station, Zapata was interviewed by Detective Lisa Sanchez.² Detective Sanchez was assisted by a records clerk who had learned American Sign Language from her stepmother and by taking classes. Detective Sanchez showed Zapata a "gang book," which was a book of 160 photographs of people whom the police believed belonged to the Clover gang. Zapata "right away" identified a photograph of Vasquez. Detective Sanchez testified that Zapata "became like excited and scared and pointing and making noises with her mouth and gesturing that he was the shooter." After selecting the photograph of Vasquez, Zapata wrote out the following statement: "The person in photo no. 5 is the person that shot my son today."

The police separately interviewed Shirley Sanchez. When she reviewed the gang book, Sanchez selected photographs of two men, one of whom was Vasquez. She described the shooter as a light-skinned Hispanic male, 20 to 22 years old, 5' 9" to 5' 10" tall, with a shaved head. Sanchez told the police that she had seen the shooter about five times before the shooting and identified him as a member of the Clover gang, a rival to the Eastlake gang to which Hernandez belonged. She said that the shooter had driven by the apartment, holding a gun, about three weeks earlier. She said that she heard the man tell Hernandez, "You can't be living here. Your homeboys killed mine not long ago, so you had better move out. I am not playing no games."

Shortly thereafter, Vasquez was arrested and charged with Hernandez's murder.

Vasquez's trial took about nine days. Zapata was the prosecution's key witness. Although Zapata is deaf and does not speak, she has never learned a standard form of sign language. She also has a very limited ability to read and write. She communicates with others using a combination of signs, gestures, facial expressions, and sounds. At trial, Zapata testified with the assistance of a court-certified American Sign Language interpreter and a certified intermediary interpreter. The intermediary interpreter, like Zapata, is deaf and cannot speak. When counsel asked Zapata a question, the American Sign Language interpreter translated the question into sign language for the intermediary interpreter, who then used signs, gestures, and facial expressions to communicate the question to Zapata. Zapata gave her answer to the intermediary interpreter, who then translated Zapata's answer into American Sign Language. Finally, the American Sign Language interpreter announced Zapata's answer to the court.

In addition to using the intermediary interpreter, the parties facilitated Zapata's testimony by pointing to photographs and diagrams, using picture dictionaries to help identify colors, asking Zapata to act out what happened at the apartment, and occasionally asking the interpreters to offer a narrative account of Zapata's testimony rather than interpret her testimony directly.

Even with this arsenal of techniques, the attorneys and the interpreters found it difficult to communicate questions to Zapata and to interpret her answers. The American Sign Language interpreter and the intermediary interpreter paused to confer with one another more than forty times during Zapata's testimony regarding the best way to interpret Zapata's statements for the jury. The court, the interpreters, and the attorneys also conferred outside of the presence of the jury on several occasions to determine how best to facilitate Zapata's testimony. During Zapata's second day of testimony, after several of these conferences had occurred, defense counsel delivered a stipulated description of the method of interpretation to the jury.³ After defense counsel addressed the jury, the trial judge added,

Now, we will proceed and will take whatever time it takes and make whatever accommodation is needed to ensure that all witnesses, regardless of which party calls them, that all witnesses have an ability to relate their testimony, and you will be the ones at the end of the day to evaluate the credibility of these witnesses.

Defense counsel repeatedly objected during both direct examination and cross-examination, arguing that he was disadvantaged because he could not tell whether Zapata was "understanding what's being interpreted to her because we have no independent way of discerning what her state of mind is when the question is posed to her." Defense counsel was particularly concerned about his ability to examine Zapata about colors, about the timing and the sequence of events, and about inconsistencies between her prior statements and her testimony at trial. The trial court overruled Vasquez's objections. The trial court noted that Zapata's answers were responsive to the questions and consistent with other evidence; that the defense was at no more disadvantage than the prosecution and that in fact, the difficulties would more likely favor the defense because the prosecution bore the burden of proof beyond a reasonable doubt; and that there was no basis to challenge the effectiveness of the interpreters. Stating that it would give Vasquez "vast leeway," the trial court placed no limitations on the scope of Vasquez's cross-examination of Zapata.

Zapata's testimony was critical to the prosecution because Shirley Sanchez, the only other witness to Hernandez's shooting, claimed at trial that she could not remember identifying Vasquez or making any statements because she was high on methamphetamine at the time of the murder. Detective Sanchez testified regarding the statements and identifications made by Shirley Sanchez; the jury also saw a videotape of Shirley Sanchez's statement to the police.

The prosecution also introduced evidence of the "bad blood" between Vasquez's Clover gang and Hernandez's Eastlake gang, as well as evidence of a time sequence that made it possible for Vasquez to have been at the scene of the murder: Vasquez had picked up a pair of eyeglasses at Sears Optical at 1:12 p.m. on the day of the shooting, just thirteen minutes before the neighbor called 911 at 1:25 p.m.; the Sears store was about 3.8 miles from Hernandez's apartment, about an eight-minute drive; and Vasquez entered a Vons market about two and a half blocks from Hernandez's apartment at 1:37 p.m.

Vasquez presented an alibi defense, arguing that he drove straight to Vons after picking up the eyeglasses. Defense counsel introduced a videotape made a year after the murder showing a drive between Sears and Vons at 1:00 p.m. that took thirty minutes, in contrast to the eight-minute drive shown in the prosecution's videotape.

The jury returned a verdict convicting Vasquez of first degree murder. The trial court sentenced Vasquez to sixty years in prison.

On appeal, Vasquez argued that he was denied his right to due process and to confront and cross-examine witnesses because of Zapata's limited ability to comprehend questions and to communicate responses. The California Court of Appeal rejected Vasquez's argument in an unpublished opinion. The Court of Appeal cited no federal cases, but adopted the reasoning of People v. Tran, ...