PEOPLE v. CAPISTRANORespondent’s Supplemental Response Letter BriefCal.April 14, 2014SUPREME COURT COPY KAMALA D, HARRIS State ofCalifornia Attorney General DEPARTMENTOFJUSTICE ‘300 SOUTH SPRING STREET, SUITE 1702 LOS ANGELES, CA 90013 Public: (213) 897-2000 Telephone: (213) 897-2282. Facsimile: (213) 897-6496 E-Mail: Margaret.Maxwell@doj.ca.gov April 11, 2014 SUPREME COURT Supreme Court ofthe State of California L 350 McAllister Street . San Francisco, CA 94102-4797 APR 14 2014 RE: People v. John Leo Capistrano (Capital Case) | | FrankA. McGuj Supreme Court ofthe State of California, Case No. S067394 ere Los Angeles County Superior Court Case No. KA034540 Deputy . Dear Honorable Chief Justice Cantil-Sakauye and Honorable Associate Justices: | Pursuant to this Court’s order filed March 19, 2014, respondentfiles this response to appellant’s supplementalletter brief filed April 1, 2014. Initially, appellant urges this Court to decline to. addressthe application of Crawford v. Washington (2004) 541 U.S.36, to the admission of Michael Drebert’s statement to Gladys Santos (presented as a claim ofBruton’ error in AOB Claim VI). - (Ltr. Brf., pp. 1-3.) These arguments should be rejected. Appellant observesthat“the People conceded Drebert’s statements were inadmissible against appellant under Aranda/Bruton”in opposing defendants’ pretrial severance motion and characterizes Crawford’s interpretation of the evidencethatfalls within the scope of the Sixth Amendment’s confrontation clause as a “new issue or theory of admissibility of evidence” for which he claims the factual record wasnot fully developedat trial. The ultimate legal issue and theory regarding the admission of Drebert’s statement to Santos has always been and remainsthe application of the Sixth Amendmentright to confront witnesses. Unlike the Fourth Amendmentcases discussed in Green v. Superior Court (1985) 40 Cal.3d 126, 138 (Ltr. Brf., pp. 1-2), in Crawford and its progeny the United States Supreme Court has refined whatit meansto bea Brutonv. United States (1968) 391 U.S. 123 (Bruton). DEATH PENALTY - Supreme Court California April 11, 2014 Page 2 “witness” within the meaning of the Sixth Amendment confrontation clause. (Davisv. Washington (2006) 547 U.S. 813, 821 [only testimonial statements “cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause”].) The parties adherence .in 1997 to the then-existing interpretation of the Sixth Amendment confrontation question is not a “concession” that applicable, binding legal precedent on the same issue would notapply. | Asthis Court stated in addressing Crawfora’s application in other cases tried before the 2004 Crawforddecision, “[a] new rule announced by the high court applies to all criminal cases still then pending on appeal. (Schriro v. Summerlin (2004) 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442; but cf. Whorton v. Bockting (2007) 549 U.S. 406, »—, —, 1278.Ct. 1173, 1181-1184, 167 L.Ed.2d 1 [Crawford not “watershed”rule: retroactive to cases already final on appeal].)” (People v. Cage (2007) 40 Cal.4th 965, 974, fn. 4 [addressing admissibility of teenage victim’s statementsto treating physician and sheriff’s deputy athospital].) Appellant’s appeal is not final. He has invoked Crawford and its progeny to challenge evidence where he has deemed the invocation advantageous to his own arguments. (See Supp. AOB Claim XXIV.) Appellant asserts that thefactual issues necessary to ascertain whether Drebert’s statement was“testimonial” were notlitigated below and complainsthat trial counsel had no reason, in 1997, to investigate the circumstances of Drebert’s statement to Santos or present evidence relevant to an assessment whether Drebert’s statement was testimonial. Asis typical for appellate proceedings,the trial record does not reveal the full investigation undertakenbytrial counselor all information available to him attrial. | Appellant now speculates that the proposed points of investigation werenot, indeed, undertaken.” The circumstances applicable to a determination whether a statement is testimonial under Crawfordare not so different from those otherwise relevant to the * Without belaboring the speculative points raised by appellant, respondent observesthat Pritchard was charged with manyof the same offenses as appellant and Drebert. Pritchard’s representation by counsel and Fifth Amendmentprivilege could be reasonably expected to impact interview efforts and presentation of evidence from Pritchard. Santos’s credibility and the veracity of Santos’s recitation of statements made by Drebert and appellant would naturally be circumstancesofinterestto trial counsel even when the parties agreed to redact Drebert’s statement to avoid the confrontation issue. Supreme Court California April 11, 2014 Page 3 general investigation andlitigation of the case such as to deny appellanthis right to due process. . The current record is sufficient to determine that Drebert’s statements to Santos. were not testimonial. The record demonstrates that Drebert initiated the conversation with Santos in Santos’s apartment. Santos wasa “civilian” and wasnot acting as a law enforcement agent. Santos was a friend whose apartmentservedasa place of refuge for appellant, Drebert and their cohorts. Appellant suggests “an investigation could have been conducted to show that Drebert knew that he was soon to be arrested and that he was makingthe statementto Santos in orderto cast the blame on Capistranoin the coming legal proceedings.” (Ltr. Brf., p. 2.) This is an entirely unreasonable supposition. The conversation occurred weeks before the parties were arrested. Drebert would have to be clairvoyant to have known in the days before Christmas 1995 that he wouldarrested on January 19, 1996, with appellant, Vera, and Santos at Santos’s apartment. The investigation of the Witters murder did not prompttheir arrest; rather, their savage beating of Michael Martinezearlier that evening triggered the police search, police detained Pritchard driving a car witnesses connectedto the crime, and Pritchard led police to Santos’s apartment on January 19. Regarding appellant’s assertion that respondent forfeited the application ofthe holding in Crawfordto appellant’s challenge to Drebert’s statement because respondent did notassert the application of the case in its respondent’s brief(Ltr. Brf., p. 3), this argumentessentially asks that this Court disregard applicable binding precedent on an issue squarely before this Court: whether the admission of Drebert’s statementin redacted form violatedappellant’s SixthAmendmentright to confront the witnesses against him. Since the 2004 Crawforddecision, the application ofits rule ‘has been frequently litigated and applied to an ever-increasing rangeof situations. In doing so, the high Court has madeever broaderstatements describingthe testimonial versus nontestimonialdistinction as a threshold question. (See Giles v. California (2008) 554 U.S. 353, 376 [only testimonial statements are excluded by the Confrontation Clause”); Whorton v. Bockting, supra, 549 U.S. at p. 420 [“Confrontation Clause has no application to [nontestimonial] statements andtherefore permits their admission even if they lack indicia of reliability”); Davis, supra, 547 U.S. at p. 821 [It is the testimonial character of the statement that separates it from other hearsay that, while subjectto traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause”’]), Neither this Court nor the United States Supreme Court has squarely applied the Crawford rulein Supreme Court California April 11, 2014 Page 4 a situation that formerly would be governed bytheprinciplesarticulated in Bruton, Richardson v. Marsh (1987) 481 U.S. 200, 211 (Richardson), and Gray v. Maryland (1998) 523 U.S. 185. While respondentapologizes for not urging this application in its 2007 brief, respondent submits the legal parameters of the Sixth Amendment confrontation clause are not subject to forfeiture. As for the merits of the question posed by this Court, appellant contends that ~ Crawford does not abrogate the Bruton/Richardson rule because “Bruton sets forth a different test that serves a different purpose”and rests on the Sixth Amendmentright to an impartial jury and the Fourteenth Amendmentright to due process in addition to confrontation clause. (Ltr. Brf., pp. 4-5.) The Sixth Amendment’sprotection of “the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall havebeen committed”refers to the jury selection process(1.e,. voir dire, peremptory challenges, fair cross section) rather than thepresentation of evidence. (See generally Morganv. Illinois (1992) 504 U.S. 719, 728 [discussing Sixth Fourteenth Amendment guaranteesto right to an impartial jury]; Duncan v. Louisiana (1968) 391 U.S. 145; 149 [Sixth Amendmentguarantee of“trial, by impartial jury . . .” in federal criminal proceedings applies to state criminal proceedings through the due processclause. of the Fourteenth Amendment].) The Bruton opinion did not concern the right to an impartial jury but clearly and specifically held that the admission ofthe statementin that case “violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.” (Bruton, supra, 391 U.S. at p. 126.) Appellant claims the Supreme Court’s citation and references to Jackson v. Denno (1964) 378 U.S. 368, in the Bruton decision supports his assertion that Bruton determination of prejudicial error turned in part upon a separate dueprocess right. (Ltr. Brf., p. 5.) The Bruton opinion’s reference to Jackson wastied to the court’s determination that a jury could not be presumed to follow an instruction to disregard a codefendant’s confession in a jointtrial where the confession was expressly incriminating of the defendant and was otherwise inadmissible against the defendant. U/d., 378 U.S.at pp. 128-129.)’ The Bruton decision also included a footnote reference to Pointer v. 3 Jackson addresseda state rule that submitted the question of a voluntarinessof a confessionto the jury rather than first to a judge for screening (finding a jury could not be asked to determine voluntariness and then be expected to ignore the confession if involuntary). Supreme Court California April 11, 2014 Page 5 Texas (1965) 380 U.S. 400, in which the Supreme Court held that the Sixth Amendment confrontation clause applied to the states via the Fourteenth Amendment. (Jd. at p. 405 [introduction of preliminary hearing testimony of witness violated confrontation right where defendant not represented by counselat prior hearing].) Neither Bruton nor Pointer purportedto extend a separate and distinct right to confrontation of witnesses (i.e., the right to cross-examination) other than afforded by the Sixth Amendment. The Bruton opinion stated, “We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him undertraditional rules of evidence™ (Bruton, supra, 391 U.S. at p. 128, fn. 3 [citing cases applying the federal rule for admission of statements of coconspirators]), specified that there was no recognized exception to the hearsay rule for the admission ofthe statement, and wenton to state that “we intimate no view whatever that such exceptions necessarily raise questions underthe- Confrontation Clause.” ([bid.’ These statements make clear that Bruton did not purport . to hold that all codefendant’s statements were inadmissible in a joint trial of defendants.°. Expressly removingnontestimonial statements from the reach ofthe Bruton mule and applying the traditional state rules of evidence to such statements doesnot violate a defendant’s Sixth Amendmentor Fourteenth Amendment rights.’ * As an appealfrom a federal criminal prosecution, the Bruton court necessarily referred to the Federal Rules of Evidence. . > Bruton itself concerned the admission of a codeferidant’s statement to an _ investigating law enforcement agent (a postal inspector investigating an armed postal robbery). The specific statement waselicited in violation of the codefendant’s Miranda rights (and therefore should not have been admitted even against the codefendant). The codéfendant’s statementin Bruton would qualify as atestimonial statement. ° In deciding Bruton, the Supreme Court overruledits prior holding in Delli Paoli v. United States (1956) 352 U.S. 232.. In Delli Paoli, the court addressed whether, in a prosecution for conspiracy to possess and transport alcohol in unstamped containers and evade paymentof federal alcoholtaxes, a limiting instruction was sufficientto limit the jury’s application of a codefendant’s written confession to police agents that wass made ‘after the termination of the conspiracy. : ” Respondent observesthat the Crawford oopinion, after remarking that most of the - traditional hearsay exceptions concern nontestimonial statement, included a “cf.”citation to Lilly v. Virginia (1999) 527 U.S. 116, 134, and a parenthetical with a quotation in from the plurality opinion: “[A]ccomplices’ confessions that inculpate a criminal defendantare not within a firmly rooted exception to the hearsay rule.” (Crawford, supra, 541 U.S.at p. 56.) In Lilly, the statement admitted at trial was made by a codefendant(the Supreme Court California . April 11, 2014 Page 6 Nearly two decadesbefore’the Crawford decision, the United States Supreme Court singled out the “testimonial”nature of a codefendant’s confession as the distinguishing prejudicial characteristic targeted by Bruton, Richardson, and Gray: “{T]he arrest statements of a codefendant havetraditionally been viewed with “special suspicion. Dueto his strong motivation to implicate the defendant and to exonerate himself, a codefendant’s statements about what the defendant said or didare less credible than ordinary hearsay evidence.” [Citations.] Lee v. Illinois, 476 U.S. 530, 541, 106 S.Ct. 2056, 2062, 90 L-Ed.2d 514 (1986) (internal quotation marks omitted); see also Bruton v. United States, 391 U.S. 123, 136, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476 (1968); Dutton v. Evans,-400 U.S. 74, 98, 91 S.Ct. 210, 224 (1970) (Harlan,J., concurring in result).” (Williamson v. United States (1994) 512U.S. 594, 601 [holding federal exception to _ hearsay rule for statements against penal interest did not allow admission of nonself- inculpatory statements made by codefendantto police].)’ defendant’s brother) during police questioning; in the statement, the codefendant denied committed the killing and claimed defendant mastermindedthe offenses and killed the victim. (Lilly, supra, 527 U.S. at pp. 120-121.) Thetrial court admitted the codefendant’s statements in their entirety under the Virginia state-law hearsay exception for declarations against.penalinterest. (/d. at p. 121.) The plurality observed, “[W]e note that the statements taken from petitioner’s brother in the early morning of December6 were obviously obtained for the purpose of creating evidence that would be useful at a future trial.” (dd. at p. 125.) In other words, the confession at issue in Lilly was a testimonial statementthat, if presented without an opportunity for cross-examination, would violate the Sixth Amendmentright to confrontation. (Crawford, supra, 541 U.S. at pp.869.) ® Each case examined statements madeto police in response to custodial interrogation. * Leev. Illinois also examined confessions made by codefendants to police that were admitted as substantive evidence against the defendantat trial. (See id, 476 U.S.at pp. 531-539.) In Dutton v. Evans, supra, 400 U.S. 74, the Supreme Court concluded that a Georgia nile permitting the introduction of a codefendant’s statementto a cellmate did not violate the confrontation clause where the defendant had the© opportunity to cross- examine the cellmate. (/d. at pp. 81-90.) Supreme Court California April 11, 2014 Page 7 . Drebert’s statement to Santos wasnot“testimonial,” and there was noviolation of appellant’s constitutional right to confrontation (including the rightto cross- examination). The traditional rules of California evidence applied to Drebert’s statement. to Santos. Given that Petitioner’s confrontation right was not implicated by the admission of Drebert’s non-testimonial statement, the admission of the statement through Santos’s testimony was not subject to Bruton and no due processviolation couldresult ‘from a denial of such a right. For these reasons, in addition to the arguments previously presented in respondent’s briefing, appellant’s challenge to the admission of Drebert’s statement to Santos should be rejected. Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General JOSEPH P. LEE Deputy Attorney General Supervising Deputy Attorney General Attorneys for Plaintiff and Respondent MEM: LAI998XS0007 $1492109.doc DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. John Leo Capistrano (CAPITAL CASE) No.: 8067394 I declare: _I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made, I am 18 years of age or older and nota party to this matter. On April 11, 2014,I electronically filed the attached SUPPLEMENTAL RESPONSE LETTER BRIEF with the Clerk of the Court using the Online Form provided by the California Court of Appeal, Second Appellate District. I am familiar with the businesspractice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney Generalis deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course ofbusiness. On April 11, 2014, I served the attached SUPPLEMENTAL RESPONSE LETTER BRIEF . by placing a true copy thereof enclosedin a sealed envelope in the internal mail collection system at the Office of the Attorney General at 300 South Spring Street, Suite 1702, Los — Angeles, CA 90013, addressed as follows: Kathleen M. Scheidel Supv. Deputy State Public Defender Office of theState Public Defender 1111 Broadway, 10th Floor Oakland, CA 94607 Sherri R. Carter Clerk of the Court Los Angeles County Superior Court 111 N. Hill Street Los Angeles, CA 90012 Maria Elena Arvizo-Knight Death Penalty Appeals Clerk Los Angeles County Superior Court Criminal Appeals Unit Clara Shortridge Foltz Criminal Justice Center 210 West Temple Street, Room M-3 | Los Angeles, CA 90012 The Honorable Jackie Lacey ‘Los Angeles District Attorney's Office 18000 Clara Shortridge Foltz Criminal Justice Center 210 W.Temple Street Los Angeles, CA 90012 Michael G. Millman Executive Director California Appellate Project 101 Second Street, Suite 600 San Francisco, CA 94105. - Governor's Office Attn: Legal Affairs Secretary State Capitol, First Floor Sacramento, CA 95814 I declare under penalty of perjury underthe laws of the State of California the foregoing is true and correct andthat this declaration was executed on April 11, 2014, at Los Angeles, California. Bernie Santos ‘2 ~ Declarant YFSighaturé LA1998XS0007 51492108.doc
