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Daniel Vasquez v. R. Kirkland, 08-55699 (2009)

Court: Court of Appeals for the Ninth Circuit Number: 08-55699 Visitors: 9
Filed: Jul. 20, 2009
Latest Update: Mar. 02, 2020
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DANIEL VASQUEZ, No. 08-55699 Petitioner-Appellant, D.C. No. v. 2:05-cv-00589-AG- R. J. KIRKLAND, Warden, JWJ Respondent-Appellee. OPINION Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding Argued and Submitted May 4, 2009—Pasadena, California Filed July 20, 2009 Before: Betty B. Fletcher, Raymond C. Fisher and Ronald M. Gould, Circuit Judges. O
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                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

DANIEL VASQUEZ,                             No. 08-55699
              Petitioner-Appellant,            D.C. No.
                v.                       2:05-cv-00589-AG-
R. J. KIRKLAND, Warden,                          JWJ
             Respondent-Appellee.
                                             OPINION

       Appeal from the United States District Court
          for the Central District of California
       Andrew J. Guilford, District Judge, Presiding

                 Argued and Submitted
            May 4, 2009—Pasadena, California

                    Filed July 20, 2009

     Before: Betty B. Fletcher, Raymond C. Fisher and
             Ronald M. Gould, Circuit Judges.

               Opinion by Judge B. Fletcher




                           9251
9254                VASQUEZ v. KIRKLAND




                         COUNSEL

Michael Tanaka, Deputy Federal Public Defender (argued)
and Sean K. Kennedy, Federal Public Defender, Los Angeles,
California, 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, California, for the respondent-appellee.


                         OPINION

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
                         VASQUEZ v. KIRKLAND                           9255
because the California Court of Appeal’s decision to affirm
Vasquez’s conviction was neither contrary to nor an objec-
tively 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 gun-
shot wounds to the chest and abdomen.

   At the police station, Zapata was interviewed by Detective
  1
    We rely on the state appellate court’s decision for our summary of the
facts of the crime. Because this initial statement of facts is drawn from the
state appellate court’s decision, it is afforded a presumption of correctness
that may be rebutted only by clear and convincing evidence. See 28 U.S.C.
§ 2254(e)(1); Moses v. Payne, 
555 F.3d 742
, 746 n.1 (9th Cir. 2009).
Vasquez does not allege that these preliminary facts are erroneous.
9256                   VASQUEZ v. KIRKLAND
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 home-
boys 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 prose-
cution’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 com-
municates with others using a combination of signs, gestures,
  2
   We refer to Shirley Sanchez as either “Sanchez” or “Shirley Sanchez”
and to Detective Lisa Sanchez as “Detective Sanchez.”
                         VASQUEZ v. KIRKLAND                            9257
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 inter-
mediary interpreter, like Zapata, is deaf and cannot speak.
When counsel asked Zapata a question, the American Sign
Language interpreter translated the question into sign lan-
guage 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 inter-
preter, who then translated Zapata’s answer into American
Sign Language. Finally, the American Sign Language inter-
preter 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 testi-
mony 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 Lan-
guage 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 state-
ments for the jury. The court, the interpreters, and the attor-
neys 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 interpreta-
tion to the jury.3 After defense counsel addressed the jury, the
trial judge added,
  3
   In relevant part, the stipulation was read to the jury as follows:
9258                    VASQUEZ v. KIRKLAND
    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 dis-
advantaged because he could not tell whether Zapata was “un-
derstanding 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 par-
ticularly concerned about his ability to examine Zapata about
colors, about the timing and the sequence of events, and about

   [T]he court has seen fit to utilize the services of two different
   interpreters for each occasion when Ms. Zapata is either ques-
   tioned or gives an answer . . . .
     Ms. Gonzales[ ] is known as an intermediary interpreter. Her
   skills are developed because she also does not speak and is hear-
   ing impaired.
     Accordingly, the intermediary interpreter has some similar
   experiences as would a witness that does not speak and does not
   hear.
     [T]he . . . intermediary interpreter will then utilize the services
   of the American Sign Language interpreter . . . .
       So when a question is posed from counsel, it first goes to the
   American Sign Language interpreter. . . . She will then translate
   it in sign language for Ms. Gonzales. Ms. Gonzales will then use
   a form or a mixture of both known sign language expression, ges-
   ture, and facial expression and body language to communicate
   the essence of the question to the witness.
      The witness in turn will respond to Ms. Gonzales and then to
   the American Sign Language interpreter, [who] will announce the
   testimony to the court.
                     VASQUEZ v. KIRKLAND                   9259
inconsistencies between her prior statements and her testi-
mony 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 shoot-
ing, 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 San-
chez 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
9260                 VASQUEZ v. KIRKLAND
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 opin-
ion. The Court of Appeal cited no federal cases, but adopted
the reasoning of People v. Tran, 
47 Cal. App. 4th 759
(1996),
which it found to be “substantively indistinguishable” from
Vasquez’s case, and held that Vasquez was not deprived of
his right to confront and cross-examine Zapata. In Tran, Ahn,
a victim of a shooting, was left a quadriplegic and was unable
to speak as a result of his injuries. 
Id. at 765.
When Ahn testi-
fied at Tran’s trial, the court explained Ahn’s condition to the
jury and said that he would tap once for “yes” and twice for
“no.” 
Id. at 766.
On appeal, Tran claimed that he was
deprived of his right of confrontation because Ahn’s “physical
and mental limitations precluded him from conducting a
meaningful cross-examination.” 
Id. at 769.
The Court of
Appeal disagreed, finding that the limitations on Tran’s abil-
ity to cross-examine Ahn “were not placed there by the court,
but arose from Ahn’s physical condition.” 
Id. at 770.
The
court found that any limits on Ahn’s ability to testify affected
both the prosecution and the defense, and that although the
attorneys were frustrated that they had to ask questions in a
form that Ahn could answer by tapping “yes” or “no,” the trial
court did not restrict counsel’s ability to cross-examine the
witness. 
Id. The Tran
court held that there was no violation
of the defendant’s confrontation rights because although
“[t]he confrontation clause guarantees the opportunity to con-
front and cross-examine, [ ] this does not mean that a defen-
                     VASQUEZ v. KIRKLAND                      9261
dant has a constitutional right to ask a particular form of
question.” 
Id. The California
Supreme Court denied Vasquez’s petition
for review without opinion.

   After Vasquez filed his petition for a writ of habeas corpus
in federal court, the magistrate judge issued a Report and Rec-
ommendation, recommending that the district court grant
habeas relief on the ground that Vasquez’s Confrontation
Clause rights were violated by the lack of effective cross-
examination. The district court, however, declined to accept
the magistrate judge’s recommendation and entered an order
denying Vasquez’s habeas petition.

  The district court issued a certificate of appealability.
Vasquez timely appealed.

                             II.

   We review de novo a district court’s decision to deny a
petition for a writ of habeas corpus. Campbell v. Rice, 
408 F.3d 1166
, 1169 (9th Cir. 2005) (en banc). Because Vasquez
filed his federal habeas petition after the effective date of the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”),
he can prevail only if he can show that the state court’s adju-
dication of his claims:

    (1) resulted in a decision that was contrary to, or
    involved an unreasonable application of, clearly
    established Federal law, as determined by the
    Supreme Court of the United States; or

    (2) resulted in a decision that was based on an unrea-
    sonable determination of the facts in light of the evi-
    dence presented in the State court proceeding.

28 U.S.C. § 2254(d). AEDPA establishes a “highly deferential
standard for evaluating state-court rulings.” Woodford v. Vis-
9262                 VASQUEZ v. KIRKLAND
ciotti, 
537 U.S. 19
, 24 (2002) (per curiam). “A state court
decision is ‘contrary to’ clearly established Supreme Court
precedent if the state court applies a rule that contradicts the
governing law set forth in Supreme Court cases or if the state
court confronts a set of facts materially indistinguishable from
those at issue in a decision of the Supreme Court and, never-
theless, arrives at a result different from its precedent.” Lam-
bert v. Blodgett, 
393 F.3d 943
, 974 (9th Cir. 2004) (citing
Lockyer v. Andrade, 
538 U.S. 63
, 73 (2003)). “The ‘unreason-
able application’ clause requires the state court decision to be
more than incorrect or erroneous. The state court’s application
of clearly established law must be objectively unreasonable.”
Lockyer, 538 U.S. at 75
(internal citations omitted). Relief is
contingent on a determination that the constitutional error
“had [a] substantial and injurious effect or influence in deter-
mining the jury’s verdict.” Brecht v. Abrahamson, 
507 U.S. 619
, 637 (1993) (internal quotation omitted).

   Because the California Supreme Court denied Vasquez’s
petition for review without comment, we review the Califor-
nia Court of Appeal’s opinion as the last reasoned state court
opinion on the claims raised in this appeal. See Ylst v. Nunne-
maker, 
501 U.S. 797
, 803-04 (1991). The state court decision
need not cite Supreme Court cases “so long as neither the rea-
soning nor the result of the state-court decision contradicts
them.” Early v. Packer, 
537 U.S. 3
, 8 (2002).

                            III.

  [1] The Confrontation Clause of the Sixth Amendment
guarantees a criminal defendant the right “to be confronted
with the witnesses against him.” U.S. Const. amend. VI. The
Supreme Court has explained that the right of confrontation
“means more than being allowed to confront the witness
physically.” Davis v. Alaska, 
415 U.S. 308
, 315 (1974).
Rather, “[t]he main and essential purpose of confrontation is
to secure for the opponent the opportunity of cross-
examination.” 
Id. at 315-16
(internal quotation marks and
                        VASQUEZ v. KIRKLAND                         9263
citation omitted); accord Melendez-Dias v. Massachusetts,
___ S. Ct. ___, 
2009 WL 1789468
, at *3 (June 25, 2009)
(“[The Confrontation Clause] guarantees a defendant’s right
to confront those ‘who bear testimony’ against him.” (quoting
Crawford v. Washington, 
541 U.S. 36
, 51 (2004))). The Con-
frontation Clause does not prevent a trial judge from imposing
“reasonable limits” on cross-examination. Delaware v. Van
Arsdall, 
475 U.S. 673
, 679 (1986). The Court has held, how-
ever, that a defendant’s Confrontation Clause rights were vio-
lated when he was “prohibited from engaging in otherwise
appropriate cross-examination designed . . .‘to expose to the
jury the facts from which jurors . . . could appropriately draw
inferences relating to the reliability of the witness.’ ” 
Id. at 680
(quoting 
Davis, 415 U.S. at 318
).

   Vasquez argues that he suffered a “complete failure of con-
frontation” because he could not cross-examine Zapata effec-
tively. He alleges that because the interpreters had difficulty
conveying questions relating to time, color, past statements,
or other abstract concepts, he was effectively barred from
questioning Zapata about her prior identifications and state-
ments.4 He contends that this placed him at a distinct disad-
vantage because the prosecution was able to obtain from
Zapata an essentially narrative account of the events on the
day of Hernandez’s murder, while the defense had the more
challenging task of impeaching that account with Zapata’s
prior statements.

   [2] Vasquez is, however, unable to point us to any case in
which the Supreme Court found a violation of a defendant’s
Confrontation Clause rights where the limitations on the
effectiveness of cross-examination resulted from the witness’s
own physical impairments. The Supreme Court cases that
Vasquez cites in his brief to support his Confrontation Clause
  4
    Vasquez does not challenge the admission of Zapata’s prior identifica-
tion of Vasquez or the prior statements she gave to the police, nor does
he challenge Zapata’s competency to testify.
9264                 VASQUEZ v. KIRKLAND
argument follow four general themes. Although the cases rec-
ognize the general principle that a defendant has a right to
effective cross-examination, none involve issues or facts simi-
lar to those presented in this case.

   [3] Vasquez’s first set of cases involves the admissibility of
prior statements of a witness. See Dutton v. Evans, 
400 U.S. 74
, 88 (1970) (plurality opinion) (defendant’s confrontation
rights not violated by the admission under state hearsay rules
of a co-conspirator’s out-of-court statement where the witness
was under oath and subject to cross-examination before the
trier of fact); California v. Green, 
399 U.S. 149
, 158 (1970)
(defendant’s confrontation rights not violated by admitting a
declarant’s out-of-court statement “as long as the declarant is
testifying as a witness and subject to full and effective cross-
examination”); Pointer v. Texas, 
380 U.S. 400
, 406-07 (1965)
(defendant’s confrontation rights violated by admitting a wit-
ness’s preliminary hearing testimony where the testimony was
not tested by cross-examination at the hearing and the witness
did not testify at the trial). See also Melendez-Dias, ___ S. Ct.
___, 
2009 WL 1789468
, at *3 (Under the Confrontation
Clause, “[a] witness’s testimony against a defendant is . . .
inadmissible unless the witness appears at trial or, if the wit-
ness is unavailable, the defendant had a prior opportunity for
cross-examination.”). Here, Vasquez does not challenge the
admission of Zapata’s prior identification or her prior state-
ments to police. The state court’s decision was therefore nei-
ther contrary to nor an unreasonable application of then-
existing Supreme Court authority.

   [4] A second set of cited cases recognizes Confrontation
Clause violations where the trial court placed some procedural
obstacle before the defendant’s ability to cross-examine a wit-
ness. See Van 
Arsdall, 475 U.S. at 679
(defendant’s confron-
tation rights violated when the trial court prohibited all
inquiry into the possibility that the witness might be biased in
favor of the prosecution as a result of the state’s dismissal of
his pending public drunkenness charge); Davis, 415 U.S. at
                         VASQUEZ v. KIRKLAND                           9265
318 (defendant’s confrontation rights violated when the trial
court did not allow the defendant to cross-examine a witness
about his probationary status as a juvenile offender). Again,
the state court’s decision is neither contrary to nor an unrea-
sonable application of these cases. Vasquez makes no claim
that the trial court placed improper limits on his ability to
cross-examine Zapata. Rather, he bases his claim on the
inherent difficulty of cross-examining a witness whose ability
to understand questions and communicate answers is impaired.5

   [5] A third set of cases involves challenges to procedures
invoked to protect child witnesses. See Maryland v. Craig,
497 U.S. 836
, 855-57 (1990) (defendant’s confrontation rights
not violated by allowing child witnesses to testify by one-way
closed circuit television where the state made an adequate
showing of necessity and the child witnesses testified under
oath, were subject to full cross-examination, and were able to
be observed by the judge, jury, and defendant as they testi-
fied); Kentucky v. Stincer, 
482 U.S. 730
, 744 (1987) (exclu-
sion of a defendant from a hearing held to determine the
competency of child witnesses did not violate defendant’s
Confrontation Clause rights). Although an unusual two-
interpreter process was used to elicit Zapata’s testimony,
Vasquez does not challenge this process. Thus, the state court
did not unreasonably apply these cases.
   5
     In his reply, Vasquez argues that there is no rule that Confrontation
Clause violations result only from the actions of the trial court, because
confrontation rights can be violated when a witness refuses to testify. He
relies on Douglas v. Alabama, 
380 U.S. 415
(1965), for this premise. In
Douglas, the state introduced a confession purportedly made by Loyd, a
separately-tried accomplice. 
Id. at 416.
Loyd invoked his Fifth Amend-
ment privilege against self-incrimination and refused to answer any ques-
tions about the confession. 
Id. The Court
held that Douglas’s inability to
cross-examine Loyd about the alleged confession denied his Confrontation
Clause rights. 
Id. at 419.
Vasquez’s attempt to analogize Loyd’s refusal to
testify to Zapata’s willing testimony is misplaced. Even if Douglas estab-
lishes that a witness’s refusal to testify can violate a defendant’s confron-
tation rights, that is not what occurred here, and the Court of Appeal’s
holding is not, therefore, contrary to Douglas.
9266                  VASQUEZ v. KIRKLAND
   [6] A final set of cases involve the use of a defendant’s own
statements against him; that is, they implicate a defendant’s
Fifth Amendment rights rather than the Sixth Amendment
right of confrontation. See Jenkins v. Anderson, 
447 U.S. 231
,
238 (1980) (Fifth Amendment not violated by using a crimi-
nal defendant’s pre-arrest silence to impeach the defendant’s
credibility); Harris v. New York, 
401 U.S. 222
, 226 (1971)
(Fifth Amendment not violated by using a statement taken in
violation of Miranda v. Arizona for impeachment purposes).
Because Vasquez raises no Fifth Amendment claim, the state
court’s decision cannot be said to be contrary to or an unrea-
sonable application of these cases.

   [7] The Supreme Court case that presents a factual situation
closest to the present case is United States v. Owens, 
484 U.S. 554
(1987). In Owens, the victim’s memory was severely
impaired as a result of injuries he suffered when he was
attacked by a prisoner. 
Id. at 556.
In an interview with an FBI
agent at the hospital, the victim was able to describe the attack
and identify Owens as his attacker. 
Id. At trial,
the victim tes-
tified that he remembered identifying Owens, but during
cross-examination he admitted that he could not remember
seeing the assailant, nor could he remember whether any of
his many visitors had suggested that the defendant had
attacked him. 
Id. Defense counsel
unsuccessfully attempted to
refresh the victim’s recollection with hospital records. 
Id. The jury
convicted Owens of assault with intent to commit mur-
der. 
Id. The Supreme
Court held that the Confrontation
Clause was not “violated by admission of an identification
statement of a witness who is unable, because of his memory
loss, to testify concerning the basis for the identification.” 
Id. at 564.
The Court stated that “[t]he Confrontation Clause
guarantees only ‘an opportunity for effective cross-
examination, not cross-examination that is effective in what-
ever way, and to whatever extent the defense might wish.’ ”
Id. at 559
(quoting 
Stincer, 482 U.S. at 739
) (internal quota-
tion marks omitted). The Court also noted that “the traditional
protections of the oath, cross-examination, and opportunity
                     VASQUEZ v. KIRKLAND                    9267
for the jury to observe the witness’ demeanor satisfy the con-
stitutional requirements.” 
Id. at 560
(citing 
Green, 399 U.S. at 158-61
).

   [8] Here, as in Owens, the trial court provided the defen-
dant the opportunity for effective cross-examination: the trial
court placed no limits on the scope or duration of cross-
examination. Moreover, Zapata testified under oath and the
jury was able to observe her demeanor in order to assess her
credibility. We empathize with the challenges that defense
counsel faced in cross-examining Zapata. Those challenges,
however, do not rise to a deprivation of the opportunity for
effective cross-examination. Defense counsel could question
Zapata about the shooting and about her identification of
Vasquez. The jury, having been instructed as to the nature of
the intermediary interpretation process, could observe the dif-
ficulties that the interpreters encountered in communicating
counsel’s questions and interpreting the gestures and signs
that Zapata gave in response, and weigh the value of Zapata’s
testimony accordingly. Thus, like the defendant in Owens,
Vasquez had ample opportunity “to expose to the jury the
facts from which jurors, as the sole triers of fact and credibil-
ity, could appropriately draw inferences relating to the reli-
ability of the witness.” 
Davis, 415 U.S. at 318
. In fact,
Vasquez’s opportunity for effective cross-examination
exceeded that in Owens, where the witness’s memory impair-
ment left no possibility that defense counsel could cross-
examine the witness about the attack or his identification of
the defendant. Here, by contrast, Zapata clearly remembered
the shooting and her prior identification of Vasquez, but had
difficulty communicating what she remembered.

  [9] Because there is no factually analogous Supreme Court
decision finding a confrontation clause violation on the basis
of the witness’s own physical impairments, the California
Court of Appeal’s decision affirming Vasquez’s conviction is
not contrary to a Supreme Court decision with materially
indistinguishable facts. See 
Lambert, 393 F.3d at 974
. In addi-
9268                VASQUEZ v. KIRKLAND
tion, because the trial court imposed no limitations that
obstructed Vasquez’s opportunity to effectively cross-
examine Zapata, the California Court of Appeal did not unrea-
sonably apply Supreme Court precedent. See 
Lockyer, 538 U.S. at 75
; see also 
Owens, 484 U.S. at 559
. We therefore
affirm the district court’s denial of Vasquez’s petition for a
writ of habeas corpus.

  AFFIRMED.

Source:  CourtListener

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