PEOPLE v. CAPISTRANO

Appellant’s Supplemental Response Letter Brief

Cal.April 14, 2014

SUPREME COURT COPY STATE OF CALIFORNIA EDMUND G. BROWN JR., Governor OFFICE OF THE STATE PUBLIC DEFENDER 1111 Broadway, 10" Floor Oakland, California 94607-4139 | Telephone: (510) 267-3300 Fax: (510) 452-8712 SUPREME COURT April 14, 2014 FILED SupremeCourt of California APR 14 2014 Office of the Clerk Automatic Appeals Unit Frank A. McGuire Clerk 350 McAllister St. San Francisco, CA 94102 Deputy Re: People v. John Leo Capistrano, Case No. 8067394 To the Honorable Tani Cantil-Sakauye, Chief Justice of California, and to the Honorable Associate Justices of the Supreme Court of the State of California: . Appellantfiles this letter brief in reply to respondent’sletterbrief filed on March 28, 2014 pursuantto this Court’s order of March 19, 2014 to answerthe following question: Did the admission of Michael Drebert’s statement to Gladys Santos regarding defendant’s rolein the killing of - Koen Witters violate appellant’s confrontation rightin light of the United States Supreme Court’s conclusion in Crawfordv. om Washington (2004) 541 U.S. 36 [(Craw/ord)], that the Sixth 2 Amendment’s confrontation ciause applies only iv testimonial statements? This Case Is Not an Appropriate Vehicle for Answering the Court’s Question Because the Facts Necessary to its Resolution Were Not Litigated at Trial Respondent did not address whetherthis case was the propervehicle for answering = {2)_. the court’s question. Appellant argues thatit is not, because the facts necessary forits resolution werenotlitigated at trial. (Appellant’s April 1, 2014 letter brief at pp. 1-3.) Respondent’s letter brief supports appellant’s argument. Respondentcites to several facts in the record in arguing that Drebert’s statement to Santos wasnot “testimonial” under Crawford because “Drebert had no reason to believe his statement to Santos would be usedlater in future judicial proceedings. No objectively reasonable witness would view Drebert’s statement as an ‘interrogation’ within the meaning of Crawford” — that Santos wasa civilian, that Drebert initiated the conversation, and that no one in “the group” had been apprehendedfor the Witters homicide or the crimes against E.G.and J.S. “and probably the Weirs.” (Respondent’s Supreme Court of California April 14, 2014 Page 2 March 28, 2014 letter briefat pp. 4-5.) Had trial counsel, acting as a competent and zealous advocate, been on notice that this issue neededto belitigated, he would have, at a minimum: (1) investigated Santos’ relationship with law enforcementin order to determine whether she provided evidence against other defendantsin return for leniency,as she did in this case; (2) litigated whether Santosinitiated the discussion; and (3) developed evidence regarding the circumstancesleading up to the conversation. For example, contrary to respondent’s suggestion that Drebert had no concerns about being apprehendedbyauthorities when he conversed with Santos, even the undevelopedfacts in the record show that Drebert may very well have been concerned about having beenidentified as a perpetrator of the crimes against the Weirs, which . occurred on December 23, 1995. (8RT:3052-3057.) Santostestified that she had the conversation with Drebert‘around Christmastime, whenhe cameoverher housein a~ drunken state on his birthday. (5SRT:2547-2549, 2552.) Drebert turned 18 years old on Christmas day. (3CT:790.) Clearly, Drebert’s statement to Santos was after the Weir crimes. An eyewitness to the Weir crimes saw the driver and a passenger of the getaway car.. (8RT:3102.) Drebert may very well have been concerned that apprehensionofthe group wasnear and decidedtotell his story implicating Capistranoas the leader and the killer of Witters. In sum, evidenceat trial may very well have shownthat the statement was “testimonial” under Crawford as Drebert may havehad reasonto believehis statement to Santos would be used in future legal proceedingsto cast appellant as the killer and minimize his own criminalliability. In a similar vein, respondent argues that Drebert’s statement was admissible against appellant under Evidence Code section 1230. (Respondent’s April1 letter brief at pp. 5-6.) Again, the admissibility of the statement under Evidence Code section 1230 was not litigated below because,as the state and thetrial court acknowledged, Drebert's statement incriminating appellant was inadmissible under Bruton atthe timeoftrial. If reasonably competenttrial counsel had had knowledgethat the admissibility of Drebert’s statementincriminating appellant had to be litigated, he would have (1) argued that the portion of Drebert’s statementincriminating appellant was not a statementagainst Drebert’s penalinterest as it did not inculpate Drebert' and (2) developedfacts, such as those set forth above regarding why Drebert confessed to Santos, to showthat the statement was notsufficiently reliable. ' Appellant has not conceded that Drebert’s statement was admissible against appellant undersection 1230. (Respondent’s letter brief, page 5, fn. 2.) Appellant acknowledgesthat portions of Drebert’s statement that were self-incriminating were admissible against Drebert. Supreme Court of California April 14, 2014 Page 3 Santostestified before appellant’s jury that she was told by someone(clearly, albeit inferentially, identified as Drebert)who had been present at a homicide about the circumstancesofthat homicide, and that she later confronted appellant with what she had been told — that appellant had killed someone with a belt. (SRT:2433-2438.) Nothing in whatDrebert’s said about Capistrano’s involvement wasagainst Drebert’s penalinterest; thus, Drebert’s self-serving statement inculpating appellant was inadmissibleattrial. (People v. Duarte (2000) 24 Cal.4th 603, 611-613, and cases cited therein.) Criteria for admission under Evidence Code section 1230 to.be examined by the trial court include whetherthe declarant was unavailable, the statement wasagainst the declarant’s penal interest when made andthe statement wassufficiently reliable to warrant admission. (People v. Lucas (1995) 12 Cal.4th 415, 454.) To determine whether the statementis trustworthy,the trial court “‘may take into account not just the words but the circumstances under which they wereuttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.’” (People v. Duarte, supra, 24 Cal.4th at p. 614, citation omitted.) None of these facts were litigated below. In sum, these factual determinations are not properly madeforthe first time on appeal. (See Jackson v. Denno (1964) 378 U.S. 368, 393 [case remanded tostate court for determination of voluntariness of confession].) For all these reasons, as well as those set forth in Appellant’s April 1, 2014 letter brief, this issue should not be reached because __ it was notlitigated below. Crawford Does Not Abrogate the Bruton Doctrine Appellant asserts that under clearly established United States Supreme Court authority, the admission of Drebert’s statement against appellant violated appellant’s rights under the Sixth and Fourteenth Amendments. Each of the lower courts and several federal court cases that respondentcites that have held that the Confrontation Clause has no application to out-of-court nontestimonial statements by codefendants (Respondent’s April 1, 2014 letter brief at pp. 3-4) fail to addressthe constitutional concerns of Bruton v. United States (1968) 391 U.S. 123 (Bruton), concerns which extend beyond the Confrontation Clause, as argued in appellant’s April 1 letter brief. Bruton’s holding is based in part on Jackson v. Denno (1964) 378 U.S. 368 andits concerns aboutthe ability of a defendant to get a fair trial from an impartial jury where jurors wereinstructed to disregard a confessionif the jury determined the confession was coerced. In holding thatit is a denial of due process to rely on a jury’s presumedability to disregard inadmissible evidence, the court relied in part on the inherent untrustworthiness of a coerced confession. (/d. at p. 383.) Supreme Court of California April 14, 2014 Page 4 Similarly, in Bruton the court recognized that statements of codefendants which incriminate a nondeclarant codefendantare “inevitably suspect, a fact recognized when accomplices do take the stand andthejury is instructed to weightheir testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidenceisintolerably compounded whenthe alleged accomplice, as here, does not testify and cannotbe tested by cross-examination.” (Bruton, supra, 391 USS.at pp. 135- 136.) The risks attendant to the admission of statements by a codefendant shifting blame to the defendantremain, no matter to whom the statements were made. (See also People v. Duarte; supra, 24 Cal.4th at pp. 611-613 [section 1230's exception to the hearsay rule “inapplicable to evidence of any statementor portion of a statementnot itself specifically disserving tothe interests of the declarant,” citations omitted.) Thus, contrary to the premise postulated by respondent, Bruton has not been overruled by Crawford and Drebert’s statements inculpating appellant were inadmissibleattrial. Se Appellant Objects To The Procedure ImposedUpon HimToPutThis Issue-——- Before The Court Appellantfiled his reply briefon October14, 2008. On February 7, 2014, appellant received notice that his case may be scheduled for oral argumentas early as the first week inApril 2014. On March 19, 2014,the court required the parties to brief an issue, heretofore not briefed by either party, which has not yet been decided by the United States Supreme Court. Appellant was given until April 1 for his letter brief and until April 14 for the reply, with no extensionsfor eitherletter. Appellant respectfully requests that the parties be afforded moretimeto fully brief this important issue of federal constitutionallaw so that it may be presented to this court in a mannerthat comports with appellant’s constitutional right to the effective assistance of appellate counsel,to meaningful review of his claims and to due processof law. Very truly yours, - Merton.Mehul KATHLEEN M. SCHEIDEL Assistant State Public Defender DECLARATION OF SERVICE Re. People v. John Leo Capistrano No.: KA 034540 Calif. Supreme Ct. No. 8067394 I, Neva Wandersee, declare that I am over 18 years of age, and not a party to the within cause; that my business address is 1111 Broadway, 10" Floor, Oakland, California 94607. I served a true copyofthe attached: LETTER BRIEF DATED APRIL 14, 2014 on each of the following, by placing same in an envelope addressed respectively as follows: Office of the Attorney General MichaelSatris Margaret Maxwell, D.A.G P.O. Box 337 300 South Spring St., 5 Floor Bolinas, CA 94924 Los Angeles, CA 90013 Mr. John L. Capistrano E-43412 1-EB-67 San Quentin State Prison San Quentin, CA 94974 Each said envelope wasthen, on April 14, 2014, sealed and deposited in the ‘United States mail in the city of Oakland, County ofAlameda, California in which I am employed, with the postage thereon fully prepaid. I declare under penalty of perjury that the foregoingis true and correc Signed this April 14, 2014, at Oa DECLARANT