Petition for Writ of Certiorari — Juan Sanchez, Petitioner v. California

No.19A400

IN THE SUPREME COURT OF THE UNITED STATES

JUAN SANCHEZ, Petitioner,

v.

STATE OF CALIFORNIA, Respondent.

_________________

ON A PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA SUPREME COURT

(DEATH PENALTY CASE)

MARY K. McCOMB

State Public Defender for the State of California

NINA WILDER

Supervising Deputy State Public Defender

Counsel of Record

OFFICE OF THE STATE PUBLIC DEFENDER

1111 Broadway, Suite 1000

Oakland, CA 94607

Nina.wilder@ospd.ca.gov

Tel: (510) 267-3300

Fax: (510) 452-8712

Counsel for Petitioner

CAPITAL CASE

QUESTION PRESENTED

Whether a defendant in a criminal case is denied the opportunity for full and

effective cross-examination in violation of the Confrontation Clause by the

admission of a prosecution witness’ prior out-of-court testimonial statements and

identifications when the witness, although physically present at trial, has no

memory of the prior identifications or statements.

i

STATEMENT OF RELATED PROCEEDINGS

There are no other related court proceedings pending in this Court. A state

petition for writ of habeas corpus is pending in the California Supreme Court.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED............................................................................................................ i

STATEMENT OF RELATED PROCEEDINGS ....................................................................... ii

TABLE OF CONTENTS............................................................................................................. iii

TABLE OF AUTHORITIES ....................................................................................................... iv

INTRODUCTION ......................................................................................................................... 1

PARTIES TO THE PROCEEDINGS .......................................................................................... 2

OPINION BELOW ....................................................................................................................... 3

JURISDICTION ............................................................................................................................ 3

PERTINENT CONSTITUTIONAL PROVISIONS................................................................... 3

STATEMENT OF THE CASE .................................................................................................... 4

I.

Trial Court Proceedings ......................................................................................... 4

II.

California Supreme Court Decision ...................................................................... 6

REASONS FOR GRANTING THE WRIT ................................................................................ 8

CONCLUSION ........................................................................................................................... 15

APPENDICES ............................................................................................................................. 16

A.

People v. Sanchez, 7 Cal. 5th 14 (2019)

California Supreme Court Published Opinion, April 29, 2019 ......................... 16

B.

People v. Sanchez, No. S065233, California Supreme Court

Denial of Petition for Rehearing, July 24, 2019 ................................................. 17

iii

TABLE OF AUTHORITIES

Page(s)

Federal Cases

California v. Green,

399 U.S. 149 (1970) ....................................................................................................... 8

Cookson v. Schwartz,

556 F.3d 647 (7th Cir. 2009) ......................................................................................... 9

Crawford v. Washington,

541 U.S. 36 (2004) ............................................................................................. 2, 6, 8, 9

Davis v. Alaska,

415 U.S. 308 (1974) ................................................................................................. 8, 14

Delaware v. Fensterer,

474 U.S. 15 (1985) ......................................................................................................... 8

Douglas v. Alabama,

380 U.S. 415 (1965) ....................................................................................................... 9

Kentucky v. Stincer,

482 U.S. 730 (1987) ....................................................................................................... 8

Tapia v. New York,

__ S. Ct. __, 2019 WL 6689666 .................................................................................... 2

United States v. Owens,

484 U.S. 554 (1988) ......................................................................................... 7, 8, 9, 11

White v. Louisiana,

__ S. Ct. __, 2019 WL 6689875 .................................................................................... 2

iv

State Cases

Goforth v. State,

70 So. 3d 174 (Miss. 2011) ............................................................................................ 9

Mercer v. United States,

864 A.2d 110 (D.C. 2004)............................................................................................ 10

In re N.C.,

105 A.3d 1199 1216-17 (Pa. 2014) ................................................................................ 9

People v. Case,

5 Cal. 5th 1 (2018) ......................................................................................................... 3

People v. Cowan,

50 Cal. 4th 401 (2010) ................................................................................................. 10

People v. Sanchez,

7 Cal. 5th 14 (2019) .............................................................................................. passim

People v. Sutton,

908 N.W.2d 50 (Ill. 2009) ............................................................................................ 10

State v. Holliday,

754 N.W.2d 556 (Minn. 2008)..................................................................................... 10

Woodall v. State,

336 S.W.3d 634 (Tex. Crim. App. 2011)..................................................................... 10

Federal Statutes

28 U.S.C. § 1257(a) ............................................................................................................. 3

Constitutional Provisions

U.S. Const. amend. VI ......................................................................................................... 8

v

Other Authorities

Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions

Go Wrong (Harvard University Press) (2011) ............................................................. 11

vi

No. 19A400

_________________

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2019

_________________

JUAN SANCHEZ, Petitioner,

v.

STATE OF CALIFORNIA, Respondent.

_________________

ON A PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF CALIFORNIA

(DEATH PENALTY CASE)

Petitioner Juan Sanchez respectfully petitions for a writ of certiorari to review the

judgment of the Supreme Court of the State of California affirming his conviction of

murder and sentence of death.

INTRODUCTION

Petitioner’s case is the third case filed in this Court within the last year asserting

the same violation of each of the petitioner’s rights under the Confrontation Clause and

pointing out the same conflict among the lower courts. See Tapia v. New York, No. 19159 (2019) and White v. Louisiana, No. 18-8862 (2019). Each case involves a conviction

based on out-of-court testimonial statements of a witness whose memory loss effectively

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shields him from cross-examination. Although the petitions for writ of certiorari were

denied in both Tapia and White, these actions do not detract from the fact that their

common confrontation issue is recurrent, important and a source of conflict among the

lower courts. Tapia v. New York, __ S. Ct. __, 2019 WL 6689666 (Mem); White v.

Louisiana, __ S. Ct. __, 2019 WL 6689875 (Mem). Because of this, the Court should

grant certiorari in this case to resolve this recurring issue.

On its own merits, this case is an excellent vehicle for resolving the lingering

question: whether the Confrontation Clause requires only that the witness be available at

trial to testify, or whether the Clause’s guarantee of the “opportunity for full and effective

cross-examination” requires more than the witness’ physical presence in the courtroom.

The need for resolution is heightened, moreover, in that this is a capital case where

petitioner’s conviction largely rested on out-of-court identifications made by a witness

who remembered nothing about the identifications or why he made them, and where

cross-examination of the witness was a completely futile and “empty procedure.”

Crawford v. Washington, 541 U.S. 36, 74 (2004) (Rehnquist, C.J., concurring in the

judgment).

PARTIES TO THE PROCEEDINGS

The parties to the proceedings below were petitioner, Juan Sanchez, and

Respondent, the People of the State of California.

2

OPINION BELOW

The decision of the California Supreme Court is reported at 7 Cal. 5th 14 (2019).

JURISDICTION

The California Supreme Court issued its original opinion on petitioner’s automatic

appeal from a judgment of death on April 29, 2019. People v. Sanchez, 7 Cal. 5th 14. A

copy of the published opinion is attached as Appendix A. Petitioner filed a timely

petition for rehearing which was denied on July 24, 2019. A copy of the order denying

rehearing is attached as Appendix B. Justice Kagan extended the time to file a petition

for writ of certiorari to and including December 21, 2019. Docket No. 19A400. This

Court has jurisdiction under 28 U.S.C. § 1257(a).

PERTINENT CONSTITUTIONAL PROVISIONS

The Sixth Amendment to the U.S. Constitution provides in relevant part: “In

all criminal prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him. . . .”

//

//

//

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STATEMENT OF THE CASE

I.

Trial Court Proceedings

Petitioner, Juan Sanchez, was convicted and sentenced to death for the murder of

Ermanda Perez and her teenage daughter Lorena Martinez. The only other person in the

home at the time of the shootings, which took place sometime between 4:00 and 5:00

a.m., was Ms. Perez’s five-year-old son, Oscar Hernandez, who was asleep in her bed.

He awoke to the sound of gunshots and saw his mother, who had been shot, come into the

bedroom followed by a man. When he saw the man, Oscar hid under the covers and did

not come out until he was sure the man had left. By then, his mother had died from the

gunshots. Oscar then went into his sister’s bedroom, where he discovered that she had

also been fatally shot.

He then walked to his aunt Rosa Chandi’s house. Chandi accompanied Oscar

back to his house, where he again saw his deceased mother and sister. Chandi then called

the police. As news of the crime spread, family members and neighbors gathered at

Chandi’s house.

Later that morning, Oscar was interviewed four times by the police. During the

first interview, Oscar made no identification of the man he saw in the house. In the next

interview, he identified the person in his mother’s bedroom as the man who bought him

ice cream the day before. Oscar’s older brother, Victor, who was not at home the night of

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the crime, told the police that the man who bought Oscar ice cream was petitioner, Juan

Sanchez.

The police next showed Oscar a booking photograph of petitioner, taken from a

prior arrest for a traffic violation. After Oscar identified petitioner from the single photo,

petitioner was arrested. Oscar was then shown a six-pack photo lineup with petitioner’s

new booking photograph. Oscar identified petitioner as the person he saw in his mother’s

bedroom. But that same morning, and over the course of the next few years, Oscar

placed a number of different persons in the bedroom and described a variety of actions

that were, as the State acknowledged in its appellate briefing in the court below,

“implausible, impossible, contradictory scenarios.”

The crimes in this case occurred in August 1997, and petitioner was tried three

times, in April, June, and October of 1999. The first two trials resulted in deadlocked

juries, with the jury in the second trial divided 10-2 for acquittal. Oscar, the only witness

to place petitioner inside the house at the time of the shootings, testified at all three trials.

The core evidence at all three trials was essentially the same, Oscar’s prior identifications

and petitioner’s disputed confession. At the third trial, Oscar exhibited extensive

memory loss as to the events of the night of the incident, and no memory at all of what he

told the police or whom he identified at any time.

5

As the prosecutor acknowledged, “My only purpose for putting [Oscar] on the

stand was solely to establish a [] prior ID situation.” (59 RT 11976.) 1 The prosecutor’s

direct examination of Oscar was limited accordingly. (59 RT 11969-71.)

On cross-examination, Oscar identified the photograph of a man, not petitioner, as

a man he saw in the house; he then identified petitioner but could not remember where he

had seen him. (60 RT 12216, 12218-19.)

Over petitioner’s objection, the trial court allowed the investigating officers to

relate Oscar’s prior identifications of petitioner on the morning of the crimes.

II.

California Supreme Court Decision

On automatic appeal to the California Supreme Court, petitioner challenged the

admission of Oscar’s prior out-of-court identifications. The California Supreme Court

rejected petitioner’s challenge, holding that Oscar’s prior statements were properly

admitted under the state’s rules of evidence, and that the admission of the statements did

not violate petitioner’s constitutional right to confront and cross-examine witnesses,

citing Crawford v. Washington, 541 U.S. 36, 59-60 (2004) (Crawford), for the

proposition that, “when the declarant appears for cross-examination at trial, the

Confrontation Clause places no constraints at all on the use of his prior testimonial

statements.” People v. Sanchez, 7 Cal. 5th at 42. The court added, “This is true even if

1

“RT” refers to the Reporter’s Transcript of the trial.

6

the witness cannot recall the statement.” Ibid, citing United States v. Owens, 484 U.S.

554, 559-60 (1988) (observing that “[n]othing in Crawford casts doubt on the continuing

vitality of Owens”).

//

//

//

7

REASONS FOR GRANTING THE WRIT

The Framers of the Constitution included the Confrontation Clause in the Bill of

Rights because they recognized cross-examination’s unparalleled effectiveness as a truthgenerating “crucible” and abhorred the use of “ex parte examinations as evidence against

the accused.” Crawford, 541 U.S. at 50, 61. The Confrontation Clause cannot guarantee

cross-examination that “is effective in whatever way, or to whatever extent, the defense

might wish.” United States v. Owens, 484 U.S. 554, 559 (1988) (Owens), quoting

Kentucky v. Stincer, 482 U.S. 730, 744 (1987). But it does guarantee criminal defendants

the “opportunity for full and effective cross-examination.” Id.; Delaware v. Fensterer,

474 U.S. 15, 20 (1985).

“Confrontation means more than being able to confront the witness physically.”

Davis v. Alaska, 415 U.S. 308, 315 (1974); see also California v. Green, 399 U.S. 149,

158 (1970) (Confrontation Clause requires that witness be “subject to full and effective

cross-examination). Or, as stated in Crawford, an adequate opportunity to cross-examine

means that a witness is at least capable of “defend[ing] or explain[ing] his prior

statement.” 541 U.S. at 59 n. 9.

In applying these principles to a witness who presents with total memory loss, this

Court has stated that the opportunity for effective cross-examination is not denied where

the witness testifies as to his past or current belief but is unable to recollect the reason for

8

that belief, as long as the defendant has the opportunity to bring out such matters as the

witness’ “bias, his lack of care and attentiveness, his poor eyesight, and even (what is

often the prime objective of cross-examination [citation]) the very fact that he has a bad

memory.” Owens, 484 U.S. at 559.

A number of courts, including this Court, have expressly affirmed that physical

presence at trial is not alone dispositive under the Confrontation Clause. In Douglas v.

Alabama, 380 U.S. 415, 420 (1965), this Court held that the Confrontation Clause had

been violated even though the witness took the stand and was subjected to crossexamination but responded to questions with an invocation of the privilege against selfincrimination. The vitality of this principle was confirmed in Crawford, 541 U.S. at 57,

where this Court described Douglas as “an example” of when a defendant lacks an

“opportunity to cross-examine” for Confrontation Clause purposes, even though the

declarant was on the witness stand and subjected to the formality of cross-examination.

See also Goforth v. State, 70 So. 3d 174, 185-87 (Miss. 2011), citing Cookson v.

Schwartz, 556 F.3d 647, 651 (7th Cir. 2009) (recognizing that the defendant simply had

no opportunity to cross-examine the witness where witness’ memory loss was genuine

and he had no recollection of events underlying his statement or having spoken to the

police); In re N.C., 105 A.3d 1199 1216-17 (Pa. 2014) (confrontation element of

9

Crawford, requiring an opportunity for effective cross-examination, not met where child

witness’ memory loss and behavior rendered any examination, at best, pro forma).

Nevertheless, the majority of courts, relying on Owens, have practically written

the “opportunity for full and effective cross-examination” out of the Confrontation

Clause, finding no violation so long as the witness was physically present at trial. See,

e.g., Woodall v. State, 336 S.W.3d 634, 644 (Tex. Crim. App. 2011); People v. Cowan,

50 Cal. 4th 401, 458 (2010); People v. Sutton, 908 N.W.2d 50, 70-71 (Ill. 2009); State v.

Holliday, 754 N.W.2d 556, 564-68 (Minn. 2008); Mercer v. United States, 864 A.2d 110,

114 (D.C. 2004).

This conflict among the lower courts is not based on factual distinctions, but rather

on a fundamentally different view of the right to confrontation and the sweep of this

Court’s decision in Owens. Owens did not reject the core, historical requirement of a fair

opportunity for cross-examination. Rather, Owens had to resolve the vexing conflict

between confrontation principles and fundamental notions of justice and fairness, where

to find a violation of confrontation rights would allow the defendant to benefit from the

memory loss that resulted from the injuries he himself inflicted on the victim witness.

The witness’ memory loss, moreover, was only partial. He remembered some details

from before and after the attack, and he clearly remembered that he had identified the

10

defendant as his assailant during the interview that took place shortly after the assault.

484 U.S. at 556. In addition, as this Court noted, defense counsel in Owens was able to

use the memory loss to impugn the witness’ prior identification. Id. at 560.

None of the factors underpinning the holding in Owens are present in petitioner’s

case. 2 Here, Oscar’s memory loss resulted from the passage of time and, as a result, he

had no recall of his prior statements to the police or any identifications he made. As

critical, the memory loss, which the trial court found to be genuine, completely insulated

Oscar from any examination impacting the reliability of his out-of-court statements and

identifications.

This case is distinguishable from Owens in another significant respect. In Owens,

the defendant argued that this Court’s jurisprudence concerning suggestive identification

procedures showed the special dangers of identification testimony and the special importance

of cross-examination when such hearsay is proffered. Owens, 484 U.S. at 561. This Court

rejected the argument on two grounds: first, that the defendant had not argued that the

identification procedure used in his case was suggestive, and second, that the mere possibility

of suggestive procedures did not render out-of-court identification statements inherently less

reliable. (Id.) Here, in contrast, the identification procedures used in obtaining Oscar’s

identifications were vigorously challenged (see Sanchez, 7 Cal. 5th 34-38), and there is

mounting scientific and empirical evidence regarding the problematic reliability on

eyewitness identification in criminal cases. See, e.g., Brandon L. Garrett, Convicting the

Innocent: Where Criminal Prosecutions Go Wrong 50 (Harvard University Press) (2011)

(finding that 190 of the first 250 inmates (76%) exonerated by DNA testing since 1989 were

misidentified by an eyewitness).

11

2

Indeed, no fair opportunity for cross-examination could exist in the face of Oscar’s

answers to the prosecutor’s questions:

Q.

Okay. I want to show you something that’s been marked People’s 75

[single photo show-up]? I’m gonna show you this. Why don’t you

look at it for a bit. Do you see that?

A.

Yeah. . . .

Q.

Okay. I’m gonna show you one other before I ask you some

questions. This is an item, we’ve called this People’s 76 [six-photo

lineup].

A.

Huh?

Q.

Okay. I’m gonna ask you some questions. Do you need time to look

at it some more?

A.

But who are these people right here?

Q.

Okay. I’m gonna ask you some questions. And I understand there’s a

lot you don’t remember, and so really what I’m only interested in is

what you do remember. . . .

Q.

. . . do you remember being shown the pictures that I just showed

you, the groups of pictures by police officers?

A.

I don’t remember.

Q.

For the record, that’s People’s 75. Not asking you if you remember the

person in the picture. I’m asking you if you remember being shown a

picture by a police officer and asked some questions?

A.

I don’t remember that picture.

Q.

But you remember being asked some questions - - about pictures?

12

A.

I don’t remember.

Q.

Okay. We went back in the room here a little bit ago and [defense

counsel] read you some questions and - - and do you remember there

being a bunch of questions on the day that your mom died, your mom

and your sister?

A.

I just don’t remember.

Q.

. . . This is an item, People’s 76. Remember an officer showing you some

pictures like this?

A.

I don’t remember.

(60 RT 12212-15.) 3

Oscar’s memory loss was thus optimal for the prosecution’s strategy – to have the

out-of-court identifications admitted in lieu of contested live testimony – and created an

insurmountable problem for the defense in foreclosing any opportunity to impeach the

reliability of Oscar’s prior out-of-court identifications. 4

Oscar also testified that he did not remember the day his mother and sister

were killed or specific details of the incident. (59 RT 11967, 11970, 11978-79, 11983,

11988-89; 11991, 11993-96, 11998, 12000-02; 60 RT 12188-94, 12194, 12196-97,

12206-08, 12221-22).

3

Oscar’s testimony from the prior two trials was excluded under the state’s

rules of evidence. As noted above, the first two trials, at which Oscar testified at

length and was effectively cross-examined regarding the reliability of his out-of-court

identifications, resulted in deadlocked juries.

4

13

Thus, petitioner’s case presents a compelling vehicle for resolving the lingering

question, resulting in conflicting opinions and outcomes, whether a witness’ mere

physical presence at trial is sufficient to satisfy the requirements of the Confrontation

Clause, where the witness’ memory loss forecloses any opportunity for effective crossexamination and impeachment. This question is fully resolved by affirming the longsettled principle that “Confrontation means more than being able to confront the witness

physically.” Davis v. Alaska, 415 U.S. at 315.

//

//

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14

CONCLUSION

For the forego ing reasons, the petition should be granted.

Dated: December 18, 20 19

Respectfully Submitted,

MARY K. McCOMB

California State Public Defender

NINA WILDER

Supervising Deputy State Public Defender

Counsel ofRecord

1111 Broadway, Suite 1000

Oakland, CA 94607

Nina.wilder@ospd.ca.gov

Tel: (510) 267-3300

Fax: (510) 452-871 2

Counsel for Petitioner

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