Adilao Ortiz v. James Yate

Filing

FILED OPINION (DAVID M. EBEL, FERDINAND F. FERNANDEZ and MARSHA S. BERZON) REVERSED AND REMANDED. Judge: FFF Dissenting, Judge: MSB Authoring. FILED AND ENTERED JUDGMENT. [8427502]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ADILAO JUAN ORTIZ,
Petitioner-Appellant,

No. 11-56383

v.

D.C. No.
2:05-cv-05807PA-E

JAMES A. YATES, Warden,
Respondent-Appellee.

OPINION

Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted
October 9, 2012—Pasadena, California
Filed December 6, 2012
Before: David M. Ebel*, Ferdinand F. Fernandez,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon;
Dissent by Judge Fernandez

*

The Honorable David M. Ebel, Senior Circuit Judge for the U.S. Court
of Appeals for the Tenth Circuit, sitting by designation.

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SUMMARY**

Habeas Corpus
The panel reversed the district court’s denial of a habeas
corpus petition and remanded for issuance of the writ in a
case in which the defendant, who was convicted of willful
infliction of corporal injury to his spouse, maintained that he
was denied his Sixth Amendment right to confront adverse
witnesses when the trial judge precluded him crossexamining his wife as to whether she was afraid to deviate
from her initial incriminating statement because of threats
allegedly made against her by the prosecutor.
The panel held that the California Court of Appeal’s
conclusion that the trial court’s curtailment did not reach
constitutional magnitude was objectively unreasonable. The
panel also held that the error, which had a substantial and
injurious effect on the verdict, was not harmless.
Judge Fernandez dissented because even if there was a
violation of the confrontation clause, he is satisfied the error
was harmless.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Jerald W. Newton, Sedona, Arizona, for Petitioner-Appellant.
Corey J. Robins, Office of the Attorney General of the State
of California, Los Angeles, California, for RespondentAppellee.

OPINION
BERZON, Circuit Judge:
Petitioner Adilao Juan Ortiz (“Ortiz”) was convicted by
a jury of willful infliction of corporal injury to his spouse in
violation of California Penal Code § 273.5. At trial, Ortiz’s
wife, Miriam Ortiz (“Miriam”) testified on behalf of the
prosecution. Ortiz maintains that he was denied his Sixth
Amendment right to confront adverse witnesses when the trial
judge precluded his trial counsel from asking Miriam whether
she was afraid to deviate from her initial incriminating
statement to the police because of threats allegedly made
against her by the prosecutor. The District Court denied Mr.
Ortiz’s petition for habeas corpus. We reverse.
I. Factual and Procedural Background
A. Pre-Trial Proceedings
On February 10, 2001, Miriam, accompanied by her
mother, father, and sister, went to the Santa Barbara Police
Department to report an alleged assault by her husband the
previous evening. There she was interviewed by Officer
James Fuller. Miriam, who was four months pregnant at the

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time, had severe bruising to her mouth and left eye, and a
swollen knee. She represented to Officer Fuller that she
received these injuries when her husband punched her in the
face and kicked her following an argument about money.
Ortiz was subsequently charged with corporal injury to his
spouse in violation of California Penal Code § 273.5.
In the months leading up to her husband’s trial, however,
Miriam would not assist the prosecuting authorities. She
declined to speak with District Attorney (“D.A.”)
investigators, telling them she was “not going to help [them]
put [her] husband in jail.” The prosecuting attorney, Deputy
District Attorney Joshua Lynn, anticipated that if called to
testify at any point, Miriam would attempt to “save[]” her
husband from conviction.
Miriam also assisted her husband’s efforts to disqualify
the Santa Barbara County D.A.’s Office from prosecuting his
case. Prior to trial, Ortiz moved to disqualify the D.A.’s
office, arguing that a conflict-of-interest existed because
Miriam’s aunt, Sonia Huerta (“Sonia”), worked in that office.
To support his motion, Ortiz submitted declarations from
Miriam and her father, Martin Huerta (“Martin”). Martin
stated that he received a phone call from Sonia, his sister-inlaw, nearly two weeks before Ortiz’s preliminary hearing.
According to Martin, Sonia
told me that [Deputy D.A. Lynn] asked her to
give a message to me and my daughter. Sonia
told me that Mr. Lynn said that if Miriam did
not tell the truth at the preliminary hearing she
could be sent to jail. He said Miriam needed
to think about that because she had a baby and

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the baby was going to grow up without both
parents.
Martin added that “[t]his sounded like a threat by Mr. Lynn
that Miriam would be punished if she testified at the
preliminary hearing any different from her original
statement.” Miriam’s sworn declaration stated: “my father
. . . told me that Sonia Huerta had called with a message for
me. . . . The message was that if I didn’t testify the same as
my original statement I could go to jail and lose my baby.”
Deputy D.A. Lynn submitted a declaration in opposition
to Ortiz’s disqualification motion. Lynn admitted that he
spoke with Sonia about Ortiz’s case, but maintained that he
told her only that Miriam “was under subpoena for the
preliminary hearing and she needed to appear and testify
truthfully if called.”1 Lynn denied that he instructed Sonia to
pass on a message threatening Miriam with prosecution or
“taking her kids.”
The trial court denied Ortiz’s motion to disqualify the
D.A.’s office. In doing so, the court assumed the truth of
Martin’s and Miriam’s declarations but declined to hold an
evidentiary hearing. Issues regarding the alleged threat
would later resurface at trial.
B. The Trial Evidence
Ortiz’s trial proceedings commenced on October 30,
2002. Following opening statements, Deputy D.A. Lynn

1

Though Miriam was subpoenaed to testify at Ortiz’s preliminary
hearing, Lynn did not call her as a witness.

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called three witnesses: (1) Gerardo Gonzalez, (2) Miriam
Ortiz, and (3) Officer James Fuller.
1. Testimony of Gerardo Gonzalez
Gonzalez testified that in early February 2001, his
coworker, Miriam, asked him to cash a $700 check for her
because she did not have time to go to the bank. Gonzalez
deposited the check into his account and gave Miriam $700
in cash. A week later, Gonzalez’s bank informed him that the
check from Miriam had bounced. When Gonzalez told
Miriam about the problem, she wrote him a second check,
which also bounced.
At that point, Gonzalez called Miriam to discuss her $700
debt. He spoke to Miriam briefly, but at some point during
the conversation, a male voice came on the phone and asked
Gonzalez who he was. Gonzalez tried to explain the
situation, but the man on the phone accused Gonzalez of
having an affair with Miriam, and told him “I’m going to go
to your work, [and] I’m going to beat you up.”
2. Testimony of Miriam Ortiz and Restriction of
her Cross-Examination
i. Direct Examination
The morning before Ortiz’s trial started, prosecutors
agreed to give Miriam use immunity (excluding perjury) to
induce her to testify. Though reluctant, Miriam largely
corroborated Gonzalez’s testimony with respect to the $700
debt and the subsequent phone conversation. She denied,
however, that Ortiz had threatened to beat up Gonzalez.

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According to Miriam, after the phone call, Ortiz was
upset with her for borrowing money from Gonzalez. Though
she tried to explain to Ortiz that she had borrowed the money
to pay off their recent wedding expenses, he called her a
“whore” and accused her of having a sexual relationship with
Gonzalez. At some point during the argument, Ortiz punched
Miriam in the face. Miriam then went into the bedroom to
lay down; Ortiz followed and kicked her in the knee.
The following day, Miriam went with her parents and
sister to the police station to report the incident. At trial,
Miriam testified that she remembered making the report and
speaking with Officer Fuller, but that she could not remember
certain details about the interview. Miriam explained that she
“wasn’t feeling [her]self” that day at the police station,
“because [her] grandfather had passed away” earlier that
morning. She recalled telling Officer Fuller that Ortiz had
punched and kicked her. And, although she admitted
agreeing to a restraining order against Ortiz, she testified that
she “didn’t really want to agree to it because [she] didn’t feel
like [she] needed one.”
The prosecutor then admitted into evidence photos of
Miriam’s injuries that were taken the day she filed the police
report. The pictures showed bruising on Miriam’s chin,
lacerations to her lips, darkness around her eyes, and bruising
on her right knee. Although Miriam recalled having the
pictures taken, she equivocated when asked whether the
injuries were caused by Ortiz.
Finally, the prosecutor asked Miriam if she had spoken
with D.A. investigator Jim Nalls about the incident. Miriam
stated that Nalls had attempted to speak with her a few weeks
before the trial but she had refused to talk to him about the

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case. When asked whether she had told Nalls that she
received her injuries when she “hit a rocking chair or
something along those lines,” Miriam said that she could not
recall.
ii. Cross-Examination
Because the principal issue in this appeal concerns the
trial court’s restriction on Ortiz’s ability to cross-examine
Miriam, we describe the proceedings in some detail. During
cross-examination, the following exchange between Miriam
and Thomas Stanley, Ortiz’s trial counsel, took place:
Mr. Stanley: You were asked right at the end
of your testimony previously about talking to
Investigator Nalls I think three weeks ago,
correct?
Mrs. Ortiz: Yes, that is correct.
Mr. Stanley: And he interviewed—he wanted
to speak to you about what happened, correct?
Mrs. Ortiz: Yes, that is correct.
Mr. Stanley: And even though you didn’t
really want to speak with him, you did speak
with him for awhile?
Mrs. Ortiz: Yes, I did mention to him we were
going to go out . . . to dinner with my sisterin-law and her family and he continued to
question me, and I mention [sic] to him that I
didn’t want to talk about it.

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Mr. Stanley: Did you have some concerns in
talking about it? Had you perceived any sort
of danger to your situation?
Mrs. Ortiz: Yes. They’ve actually—they’ve
threatened me that if I didn’t testify—
Deputy District Attorney Lynn: Objection.
Move to strike. Counsel—
Mr. Stanley: Goes to her state of mind, your
Honor. I think it’s entitled to be presented.
The Court: Sustained.
Mr. Stanley: What did you tell Mr. Nalls
about why you weren’t speaking to him.
Mr. Lynn: Same objection, your Honor.
Unless it calls for a separate answer.
Mr. Stanley: Your Honor, I would like to go
sidebar. I do want to make this comment.
The Court: The question is what did she say to
Mr. Nalls. I'll permit it. What did you say to
him?
Mrs. Ortiz: What did I say to him the day that
he went to the house?
Mr. Stanley: About why you didn’t want to
talk to him.

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Mrs. Ortiz: Because they had threatened me
that if I didn’t—
Mr. Lynn: Same objection.
The Court: I’m going to sustain the objection
if that’s the issue.
Mr. Stanley: I would like to make my point at
sidebar with the reporter.

At sidebar, Stanley proffered that Miriam would testify
that she refused to speak with Nalls because she perceived a
threat from the prosecutor’s office that if she deviated from
her original statement to Officer Fuller, she would be
prosecuted for perjury and lose custody of her child. Stanley
argued to the trial court that its refusal to allow crossexamination on this subject violated Ortiz’s right to confront
adverse witnesses.
Stanley also reported during the sidebar conference that
Miriam had privately recanted her initial story that Ortiz
assaulted her: at around 1:30 p.m. on October 30—the day
Ortiz’s trial commenced—Miriam met privately with her
attorney, Dan Murphy (“Murphy”), whom she had retained
the previous evening. Stanley joined Miriam and Murphy to
help bring Murphy up to speed. According to Stanley,
Miriam represented during that meeting that Ortiz did not
strike her, and that she was afraid she would be prosecuted
for perjury if she testified to that effect.
The trial judge moved the sidebar conversation into
chambers, where Murphy presented a different account of
that earlier three-way meeting. According to Murphy, at

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around 11:30 on the morning of October 30, Miriam made it
“very clear” to him that her testimony later that afternoon
would conform to her initial statement to Officer Fuller.
Murphy believed, however, that Miriam was “worked over
the noon hour” when she went to lunch with Ortiz. At around
1:30 p.m., during the three-way meeting between Miriam,
Murphy, and Stanley, Miriam asked Murphy “[h]ow is
anyone going to know what really happened, what’s really the
truth, when no one was there? It was just me and him.” But,
Murphy maintained, Miriam never said “[h]e didn’t hit me,”
nor did she otherwise recant the version of events she gave to
Officer Fuller.
Still in chambers, Deputy D.A. Lynn reiterated his
objection to the proposed line of questioning. He noted that
the issue regarding the alleged threat came up months earlier
in connection with Ortiz’s motion to disqualify, and that there
had been no “proof” that Miriam was, in fact, threatened.
The trial court sustained Lynn’s objection, and suggested that
if it allowed Stanley to ask about the perceived threat, it was
“at least possible, maybe even probable, that Mr. Murphy
[would have] to testify and maybe [Stanley would] have to
testify.” Lynn commented that he would also likely need to
testify on the matter.
3. Testimony of Officer James Fuller
Officer Fuller testified that on February 10, 2001 he
interviewed Miriam regarding the incident that took place the
previous evening. He described Miriam’s injuries as they
appeared that day, and confirmed that she had told him that
she received her injuries when Ortiz punched her. Fuller also
provided testimony regarding Miriam’s prior statements to
him that were inconsistent with her trial testimony. Most

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notably, Fuller testified that Miriam “insisted” on an
emergency protective order against Ortiz that would cover her
father, her mother, and her sister, because Ortiz “threatened
if she ever left him, that he would hurt her family.”
C. The Trial Court’s Decision & Post-Trial Rulings
Following the presentation of evidence, the parties
stipulated that “[w]ithin four to ten years immediately prior
to the crime alleged in this case [Ortiz] was convicted of
felony spousal abuse.”2 The jury found Ortiz guilty of willful
infliction of corporal injury to his spouse in violation of
California Penal Code § 273.5. Because Ortiz had four prior
serious and violent felony convictions, he received a sentence
of twenty-six years to life under California’s Three Strikes
Law. See Cal. Pen. Code §§ 667, 667.5, 1170.12.
Following his conviction, Ortiz filed a motion for a new
trial based on the trial court’s restriction of his crossexamination of Miriam. The trial court denied the motion.
D. Direct Appeal
Ortiz appealed his conviction to the California Court of
Appeal where he contended, inter alia, that the trial court
“violated his due process and Sixth Amendment rights by
restricting his counsel’s cross-examination of the victim.”
The Court of Appeal agreed that “the trial court erred by
refusing to allow defense counsel to cross-examine Miriam as
to whether her testimony was influenced by any threat or

2

That conviction, as well as Ortiz’s other prior convictions, arose out of
an incident in 1991 in which he assaulted a former girlfriend and her
roommate.

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implied threats of prosecution.” In doing so, the court cited
California Evidence Code § 780,3 and emphasized that the
proffered cross-examination “bore directly on [Miriam’s]
credibility as a witness.” Nevertheless, the Court of Appeal
deemed the trial court’s evidentiary error harmless under the
state law harmless error standard.4
Ortiz next sought review by the California Supreme
Court, which denied his petition for review summarily. He
then filed a petition for a writ of habeas corpus in the District
Court for the Central District of California.
The District Court denied the petition. In the District
Court’s view, by citing the California Evidence Code and
applying the harmless error standard for violations of state
law, rather than the one required for constitutional violations,
the California Court of Appeal implicitly held that the trial

3

As summarized by the California Court of Appeal, section 780
provides that “in determining the credibility of a witness, the court or jury
may consider any matter that has any tendency in reason to prove or
disprove the truthfulness of his testimony.”
4
Specifically, in reaching its harmless error conclusion, the California
Court of Appeal relied on People v. Cudjo, 6 Cal. 4th 585 (1993), and
People v. Watson, 46 Cal.2d 818 (1956). Cudjo stands for the proposition
that “for the most part, . . . the mere erroneous exercise of discretion under
[California’s evidence rules] does not implicate the federal Constitution.”
6 Cal. 4th at 611; Watson supplies the harmless error standard applied by
California appellate courts in reviewing trial errors that do not reach
constitutional magnitude, asking whether “it is reasonably probable that
a result more favorable to the appealing party would have been reached in
the absence of the error.” 46 Cal.2d at 836. The harmless error standard
on direct review of claims of constitutional error is whether the error was
“harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S.
18, 24 (1967).

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court committed no constitutional error when it prohibited
Ortiz from cross-examining Miriam as to the alleged threat.
That implicit holding, the District Court concluded, was not
unreasonable, and therefore Ortiz was not entitled to habeas
relief. We disagree with the District Court’s latter
conclusion, and, for the reasons set forth below, grant Ortiz’s
petition.
II. Analysis
Ortiz’s petition is governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No.
104-132, 110 Stat. 1214. Although the California Court of
Appeal did not explicitly address the trial court’s curtailment
of cross-examination in constitutional terms, we agree with
the District Court that the Court of Appeal implicitly decided
the merits of Ortiz’s Confrontation Clause claim. The Court
of Appeal acknowledged that Ortiz raised this claim in his
direct appeal by asserting that the trial court “violated his due
process and Sixth Amendment rights by restricting his
counsel’s cross-examination of the victim,” but, by citing
Cudjo, indicated that in its view the trial court’s error did not
reach constitutional magnitude. AEDPA therefore properly
applies. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam).
Under AEDPA, a federal habeas court may grant a habeas
petition if the state court’s adjudication of the merits of the
petitioner’s claim “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.” 28 U.S.C. § 2254(d)(1). In making this
determination, we look through state-court summary denials
to the last reasoned state-court opinion on the claim at
issue—here, the California Court of Appeal’s decision

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affirming Ortiz’s conviction. Ylst v. Nunnemaker, 501 U.S.
797, 804–06 (1991); see also Medley v. Runnels, 506 F.3d
857, 862 (9th Cir. 2007) (en banc).
A. The Sixth Amendment Violation
In the District Court’s view, it was not objectively
unreasonable for the California Court of Appeal to conclude
that the trial court committed no constitutional error when it
precluded Ortiz from cross-examining Miriam as to the
perceived threat. We disagree.
The Supreme Court has made clear that “‘the exposure of
a witness’ motivation in testifying is a proper and important
function of the constitutionally protected right of crossexamination.’” Delaware v. Van Arsdall, 475 U.S. 673,
678–79 (1986) (quoting Davis v. Alaska, 415 U.S. 308,
316–17 (1974)). To that end,
a criminal defendant states a violation of the
Confrontation Clause by showing that he was
prohibited from engaging in otherwise
appropriate cross-examination designed to
show a prototypical form of bias on the part of
the witness, and thereby “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).
To be sure, “trial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable
limits on such cross-examination based on concerns about,

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among other things, harassment, prejudice, confusion of the
issues, the witness’ safety, or interrogation that is repetitive
or only marginally relevant.” Id. at 679 (emphasis added).
Any such “[r]estrictions on a criminal defendant’s rights to
confront adverse witnesses,” however, “‘may not be arbitrary
or disproportionate to the purposes they are designed to
serve.’” Michigan v. Lucas, 500 U.S. 145, 151 (1991)
(quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)); see
Chambers v. Mississippi, 410 U.S. 284, 295 (1973).
Accordingly, a trial court may not “prohibit[] all inquiry into
the possibility that [a witness] would be biased” without
raising serious constitutional questions. Van Arsdall,
475 U.S. at 680.
We have on several occasions applied Lucas to hold that
an arbitrary or disproportionate restriction on a defendant’s
ability to cross-examine adverse witnesses as to their biases
or motives for testifying violates the Sixth Amendment. See
Jackson v. Nevada, 688 F.3d 1091, 1101–04 (9th Cir. 2012)
(holding that a trial court’s restriction on a habeas petitioner’s
cross-examination of police officers regarding the victim’s
prior unsubstantiated claims of assault was both contrary to
and an unreasonable application of Lucas); Holley v.
Yarborough, 568 F.3d 1091, 1099 (9th Cir. 2009) (“The trial
court’s decision to completely limit [the witness’] crossexamination to exclude any testimony regarding [bias] . . .
was both unreasonable and disproportionate.”); Fowler v.
Sacramento Cnty. Sheriff’s Dep’t, 421 F.3d 1027, 1038 (9th
Cir. 2005) (holding that the trial court’s ruling precluding
defendant from cross-examining the victim regarding prior
exaggerated allegations of molestation was an unreasonable
application of Lucas); cf. LaJoie v. Thompson, 217 F.3d 663
(9th Cir. 2000).

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As those cases instruct, determining “whether the trial
court’s preclusion of the cross-examination was an
objectively unreasonable application of [Lucas],” involves a
two-part inquiry. Fowler, 421 F.3d at 1038. First, we ask
“whether the proffered cross-examination sufficiently bore
upon [the witness’] reliability or credibility such that a jury
might reasonably have questioned it.” Id.; see also Jackson,
688 F.3d at 1099. If so, we consider “whether the trial
court’s preclusion of this cross examination was
unreasonable, arbitrary or disproportionate” in light of any
“countervailing interests” justifying preclusion, such as
“waste of time, confusion and prejudice.” Fowler, 421 F.3d
at 1038, 1040; Jackson, 688 F.3d at 1100 n.6, 1103–04.
As in Fowler, the Court of Appeal in Ortiz’s case did not
rely on, or even cite, Lucas in reaching its conclusion. See id.
However, “a state court need not cite or even be aware of [the
Supreme Court’s] cases under § 2254(d).” Harrington v.
Richter, 131 S. Ct. 770, 784 (2011) (citing Early, 537 U.S. at
8). In such circumstances, “a habeas court must determine
what arguments or theories . . . could have supported, the
state court’s decision; and then it must ask whether it is
possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a
prior decision of [the Supreme] Court.” Id. at 786; see also
Miles v. Martel, 696 F.3d 889, 898 (9th Cir. 2012).
Accordingly, to determine whether § 2254(d)(1) is
satisfied, we must decide (1) whether Ortiz’s proffered crossexamination sufficiently bore upon Miriam’s credibility such
that no fairminded jurist could disagree that the crossexamination could have influenced the jury’s assessment of
her; and (2) whether any countervailing interests could

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reasonably have justified the trial court’s curtailment of
cross-examination.
As to the first inquiry, we previously explained that
“cross-examination may implicate the Sixth Amendment even
if it is not certain to affect the jury’s assessment of the
witness’s reliability or credibility. . . . [I]t is sufficient that a
jury ‘might reasonably’ have questioned the witness’s
reliability or credibility in light of the cross-examination.”
Fowler, 421 F.3d at 1036 (quoting Van Arsdall, 475 U.S. at
679). Here, the jury might well have questioned Miriam’s
credibility had Ortiz been permitted to elicit testimony that
she was afraid to deviate from her original statement to
Officer Fowler for fear of prosecution or of losing custody of
her child.5 Cf. United States v. Vavages, 151 F.3d 1185 (9th
Cir. 1998) (holding that the defendant’s Sixth Amendment
rights were violated when a defense witness refused to testify
because the prosecutor threatened her with perjury if she
testified in support of defendant’s alibi); Webb v. Texas,
409 U.S. 95, 97–98 (1972) (per curiam) (holding that the
defendant’s Sixth Amendment rights were violated when the
trial judge “gratuitously” admonished a single witness “on the
dangers of perjury,” causing the witness to refuse to testify).
As the victim and sole eyewitness to the incident, Miriam
was a “central, indeed crucial” witness for the prosecution.
Olden v. Kentucky, 488 U.S. 227, 232–33 (1988) (per
curiam). Although the prosecution introduced photographic

5
W hether the District Attorney’s office did, in fact, threaten to prosecute
M iriam for perjury, or to take away her child, if she testified differently
from her initial statement is largely beside the point. It was Miriam’s
understanding that she was threatened that was relevant to her motivation
for testifying against Ortiz.

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evidence of Miriam’s injuries, only Miriam’s statement to
Officer Fuller and her direct testimony linked Ortiz to those
injuries. Her motive for testifying, therefore, was not of
“marginal relevance”—it bore directly on the likelihood that
the jury would credit essential testimony by the primary
witness. See Jackson, 688 F.3d at 1100.
Moreover, without any testimony regarding the perceived
threat, jurors had no reason to question Miriam’s reasons for
testifying against her husband. They therefore lacked
“sufficient information to appraise [Miriam’s] biases and
motivations.” Hayes v. Ayers, 632 F.3d 500, 518 (9th Cir.
2011) (citation and internal quotation marks omitted). Had
the jury heard Miriam’s testimony about the perceived threat,
it might reasonably have questioned her commitment to her
initial story.
That conclusion brings us to the second inquiry: whether
the trial court’s evidentiary restriction “was disproportionate
to the interests served in light of the facts of the defendant’s
case.” Jackson, 688 F.3d at 1103. As noted earlier, trial
courts may limit cross-examination for a number of reasons,
including confusion of the issues, prejudice, and undue delay.
See Van Arsdall, 475 U.S. at 679; Fowler, 421 F.3d at 1038.
Here, the Court of Appeal’s decision—the “last reasoned
state-court opinion” for purposes of § 2254(d)—concluded
that the failure to permit the cross-examination was state law
evidentiary error, and so contains no discussion as to what
interests, if any, justified the trial court’s restriction on crossexamination. Nor is it clear what countervailing interests
could have justified the trial court’s categorical preclusion of
Ortiz’s proffered cross-examination. See Richter, 131 S. Ct.
at 784.

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The District Court, in denying Ortiz’s habeas petition,
indicated that “[t]he trial court concluded that admitting
evidence of the alleged threats would be both highly
prejudicial and an undue waste of time.” Not so.
The trial court said nothing about prejudice when it
precluded Ortiz from cross-examining Miriam as to the
perceived threat. Nor did the Court of Appeal cite prejudice
as a reason for concluding that the trial court committed no
constitutional error.
In any event, it is difficult to see how the proffered crossexamination could have been impermissibly prejudicial to the
State. Had the trial court permitted Ortiz’s counsel to
question Miriam about the perceived threat, prosecutors
would have been free to rebut any statements Miriam might
have made—for example, by offering evidence that no such
threat was made in the first place. And, of course, prejudice
in the sense of making the jury less likely to convict because
it does not believe the witness’ account is not, standing alone,
pertinent to the question whether cross-examination should
have been allowed. The whole point of the effective,
permissible cross-examination protected by the Confrontation
Clause is to diminish the witness’ credibility with the jury
and thereby render a conviction less likely.
Any concerns about delay likewise could not have
justified the trial court’s decision to preclude Ortiz from
eliciting any testimony whatsoever from Miriam regarding
the perceived threat. According to the trial court, permitting
cross-examination of Miriam as to the threat might have
required further testimony from several of the lawyers
involved in Ortiz’s case. To be sure, whether the presentation
of evidence would be unduly time consuming is a legitimate

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concern trial courts may consider in determining whether
preclusion of cross-examination is warranted. See, e.g.,
Fenenbock v. Dir. of Corr. for Cal., 692 F.3d 910, 920 (9th
Cir. 2012). And we have rejected Confrontation Clause
challenges to narrow evidentiary restrictions that specifically
address concerns about delay. See id. (denying habeas relief
because the state court’s time-limitation on cross-examination
did not disproportionately limit the subject matter of the
witness’ testimony). Here, however, the “complete exclusion
of the relevant testimony was disproportionate to th[at]
limited interest[].” Jackson, 688 F.3d at 1102.
Moreover, the potential for delay was actually quite
limited. Our Confrontation Clause analysis is limited to the
proffered threat testimony, and does not encompass Miriam’s
purported recantation.6 The only lawyer who possibly could
have provided relevant testimony regarding the threat, as
opposed to the purported recantation, was Deputy D.A.
Lynn—the prosecutor who purportedly “sent” the alleged
threat; the other lawyers’ testimony would not have been
pertinent to that inquiry. That testimony from Lynn might
have been necessary had Ortiz been allowed to ask Miriam
about the threat cannot justify the trial court’s curtailment of
cross-examination.
As a general matter, a witness may not be contradicted by
extrinsic evidence on a collateral matter. See, e.g., United
States v. Kincaid-Chauncey, 556 F.3d 923, 932 (9th Cir.
2009) (“When impeaching by contradiction, the fact to be
contradicted must be material.”) (citing 4 Joseph M.
McLaughlin, Weinstein’s Federal Evidence, § 608.20 [3] [a],
6

As discussed below, Ortiz was free to ask M iriam on crossexamination whether she received her injuries some other way.

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at 608–38 (2d ed. 1999)); Herzog v. United States, 226 F.2d
561, 565 (9th Cir. 1955) adhered to on reh’g, 235 F.2d 664
(9th Cir. 1956) (“A witness cannot be impeached where the
subject matter of his testimony is either immaterial or
collateral to the issues in the cause in which the testimony is
given.”); People v. McCarthy, 88 Cal. App. 2d 883, 889
(1948) (noting that “it is well settled” that “a witness cannot
be impeached on an immaterial or collateral matter”). As
noted, it is only peripherally relevant what the “message”
Lynn communicated to Miriam actually was.7 Although
Martin, Miriam, and Lynn all provided different accounts of
that message,8 Miriam could have (quite possibly accurately)
inferred a message that went beyond what was explicitly said.
In any event, even if the trial would have been slightly
longer with Lynn’s testimony, that is the price of assuring
accurate decisionmaking. Put another way, where, as here,
cross-examination is potentially crucial, the possibility of a
somewhat longer trial is simply the price of the protection
accorded by the Confrontation Clause.
We cannot discern—and the State does not suggest—any
other countervailing interest that would justify the trial
court’s decision to preclude the proffered cross-examination.
Put simply, the trial court’s curtailment was disproportionate
to any conceivable valid purpose. Without Miriam’s
testimony about the perceived threat, the jury had no reason
to question why Miriam testified as she did during her direct
examination. This error violated Ortiz’s constitutional right

7

See supra note 5.

8

See supra pp. 4–5.

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of confrontation; the Court of Appeal’s ruling to the contrary
was objectively unreasonable.
B. Harmless Error
“Even where constitutional error is found, ‘in § 2254
proceedings a court must [also] assess the prejudicial impact
of constitutional error’ under the Brecht standard.”9 Merolillo
v. Yates, 663 F.3d 444, 454 (9th Cir. 2011) (quoting Fry v.
Pliler, 551 U.S. 112, 121–22 (2007)); Brecht v. Abrahamson,
507 U.S. 619, 637–38 (1993). Under that standard, “[h]abeas
relief is warranted only if the error had a ‘substantial and
injurious effect or influence in determining the jury’s
verdict.’” Id. (quoting Brecht, 507 U.S. at 637–38). “If a
habeas court is left with ‘grave doubt’ about whether a
constitutional error substantially influenced the verdict, then
the error was not harmless.” Parle v. Runnels, 387 F.3d
1030, 1044 (9th Cir. 2004).
Where there has been a Confrontation Clause violation,
“[t]o guide an analysis of ‘substantial and injurious effect,’
this court has applied the five non-exclusive factors
propagated by the Supreme Court in Delaware v. Van
Arsdall.” Merolillo, 663 F.3d at 454; see also Fowler,

9

It is immaterial that the California Court of Appeal applied the
nonconstitutional, more-likely-than-not harmless error standard in Ortiz’s
direct appeal. W hen a state appellate court chooses between harmless
error standards to assess the prejudicial impact of a nonstructural
constitutional error, “‘we need not conduct an analysis under AEDPA of
whether the state court’s harmlessness determination on direct review . . .
was contrary to or an unreasonable application of clearly established
federal law.’” Merolillo, 663 F.3d at 455 (quoting Pulido v. Chrones,
629 F.3d 1007, 1012 (9th Cir. 2010)). Instead, “the Brecht ‘substantial
and injurious effect’ standard governs our harmless error review.” Id.

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421 F.3d at 1041–42. Those factors are: (1) the importance
of the witness’ testimony in the prosecution’s case; (2)
whether the testimony was cumulative; (3) the presence or
absence of evidence corroborating or contradicting the
witness’ testimony on material points; (4) the extent of crossexamination otherwise permitted; and (5) the overall strength
of the prosecution’s case. Van Arsdall 475 U.S. at 684.
Applying these factors, and “assum[ing]”—as we
must—“that the damaging potential of the [precluded] crossexamination [would otherwise have been] fully realized,” we
conclude that the trial court’s restriction on Ortiz’s ability to
cross-examine Miriam had a substantial and injurious effect
on the jury’s verdict. See Fowler, 421 F.3d at 1041 (quoting
Van Arsdall, 465 U.S. at 684) (alterations in original).
It is difficult to overstate the importance of Miriam’s
testimony for the prosecution. As the victim and sole
eyewitness to the assault, Miriam provided the only direct
evidence linking Ortiz to her injuries. As discussed above,
“the jury might have received a ‘significantly different
impression’ of [Miriam’s] credibility” had Ortiz been
permitted to elicit testimony about the perceived threat.
Holley, 568 F.3d at 1101. With Miriam’s credibility as a
witness in doubt, the jury might also have questioned the
accuracy of the statements she made to Office Fuller.
Critically, the remaining evidence against Ortiz—Gonzalez’s
testimony and the police station photos—said nothing about
the cause of Miriam’s injuries. The prosecution’s case
against Ortiz, in other words, was hardly overwhelming. It
turned almost entirely on what Miriam said on the witness
stand about the night of the alleged incident, and whether the
jury found that story credible. Having no reason to question
why Miriam testified consistently with her initial statement
to the police, the jury understandably credited the one version

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of events it was told. Exposing Miriam’s potential ulterior
motives for parroting her initial statement to the police would
have undermined the prosecution’s case against Ortiz.
Because we must assume the “damaging potential” of Ortiz’s
proffered cross-examination would have been “fully
realized,” Slovik v. Yates, 556 F.3d 747, 755 (9th Cir. 2009),
we are in grave doubt as to whether the trial court’s error
affected the verdict.
That Ortiz was permitted to cross-examine Miriam on
other matters does not alter our conclusion. Ortiz’s ability to
cross-examine Miriam regarding a prior miscarriage, Ortiz’s
relationships with her relatives, and Miriam’s emotional state
on the day she filed the police report, could not have
substituted for the precluded cross-examination regarding the
threat. What is more, while Ortiz was free to ask Miriam on
cross-examination whether she had received her injuries some
other way—by falling over a chair, for example10—there is no
reason to believe that line of inquiry would have been helpful
to him, standing alone. So long as Miriam felt compelled to
hold to her original story or otherwise face possible
prosecution and lose custody of her child, it is doubtful that
she would have deviated from that story. Furthermore, even
if Miriam had deviated from her direct examination
testimony, because of the trial court’s curtailment, Ortiz
could not have adequately explained to the jury why she had
initially testified to the contrary.
Similarly, the trial court’s constitutional error is not
rendered harmless simply because Miriam may have lacked
credibility as a witness in other respects. The State points out
that Miriam’s reluctance to testify on behalf of the
10

See supra p.8.

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prosecution was obvious: she had difficulty remembering the
details of what had happened, could not recall her own prior
statements, and gave implausible explanations for her
injuries. But Miriam’s occasionally hesitant responses to
questions do not support a finding of harmlessness. Quite the
opposite: because the jury never heard about the perceived
threat, it lacked any explanation for Miriam’s reluctance other
than the one supplied by the prosecutors—that Miriam
wanted to “save” Ortiz from conviction even though he had
attacked her as she described. Had Ortiz been permitted to
ask Miriam about the threat, the jury would have had an
alternative explanation for her hesitant demeanor.
Our balancing of the Van Arsdall factors might suggest
a different result had the prosecution supplied further
evidence of Ortiz’s guilt beyond the three witnesses’
testimony and the police station photos. But it did not do so.
The preclusion of Ortiz’s proffered cross-examination of the
State’s key witness was therefore not harmless, and Ortiz is
entitled to habeas relief.
III.

Conclusion

“Clearly established federal law, as set forth by the
Supreme Court in Davis, Van Arsdall, and Lucas, indicates
that the trial court committed constitutional error by denying
[Ortiz] the right to meaningful cross-examination of the
prosecution’s leading witness.” Holley, 568 F.3d at 1101–02.
The California Court of Appeal’s conclusion that the trial
court’s curtailment did not reach constitutional magnitude
was objectively unreasonable, and had a substantial and

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injurious effect on Ortiz’s verdict. We therefore reverse the
judgment of the District Court and remand for issuance of the
writ.
REVERSED and REMANDED.

FERNANDEZ, Circuit Judge, dissenting:
I respectfully dissent because even if there was a violation
of the confrontation clause, a question on which I do not
opine, habeas corpus relief cannot issue unless that
constitutional violation had a “‘substantial and injurious
effect or influence in determining the jury’s verdict.’” Brecht
v. Abrahamson, 507 U.S. 619, 623, 113 S. Ct. 1710, 1714,
123 L. Ed. 2d 353 (1993). Otherwise, the error was harmless.
Id. In making a determination, I will apply the harmless error
considerations that have been delineated by the Supreme
Court for confrontation clause purposes. See Delaware v.
Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438,
89 L. Ed. 2d 674 (1986); United States v. Miguel, 111 F.3d
666, 671–72 (9th Cir. 1997). I do so because this is not a
case where all cross-examination of the witness was
precluded;1 although cross-examination was limited in one
respect, it was otherwise permitted.2 Thus, I will assume that
“the damaging potential of the cross-examination [was] fully
realized” and then go on to determine whether I “might
nonetheless say that the error was harmless . . . .” Van
Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438. That “depends

1

2

See Miguel, 111 F.3d at 672 n.3.

See United States v. Schoneberg, 396 F.3d 1036, 1044 (9th Cir. 2005);
Miguel, 111 F.3d at 672 n.3.

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upon a host of factors . . . .” Id. As the Supreme Court
pointed out:
These factors include the importance of the
witness’ testimony in the prosecution’s case,
whether the testimony was cumulative, the
presence or absence of evidence corroborating
or contradicting the testimony of the witness
on material points, the extent of crossexamination otherwise permitted, and, of
course, the overall strength of the
prosecution’s case.
Id. In this case, I am satisfied that the error was harmless.
Ortiz’s wife, Miriam, was the witness. She presented
herself in apparently battered condition at a police station the
day after Ortiz allegedly assaulted her, and sought an order
protecting herself and her family from Ortiz and his threats.
Thereafter, however, she indicated that she just wanted to
lead a normal life with her husband and child. At trial,
Miriam testified that Ortiz had hit her and kicked her, but she
had many claimed memory failures about the incident and
made various statements in which she attempted to soften the
effect of that testimony. She even seemed to take some of the
blame upon herself. Moreover, she suggested that other
witnesses were incorrect, or that she could not recall what she
told them. All in all, it was clear that she was a reluctant
witness, who wanted to protect Ortiz despite his behavior.
The jurors could readily perceive that.
The jury also heard from Gerardo Gonzalez, the man
whose phone call apparently put Ortiz into a rage. When
Gonzalez called, Miriam began crying and Ortiz came on the

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line, accused Gonzalez of having an affair with Miriam, and
threatened to assault him. After that call, he hurled similar
accusations at her. The assaults upon Miriam took place right
after that. Officer Fuller testified to what Miriam had told
him, and to what he saw and photographed (the photographs
were shown to the jury). In addition, the jury was informed
that Ortiz had a prior conviction for spousal abuse. Ortiz,
himself, did not testify.
Ortiz was not precluded from cross-examining Miriam
about her changing stories or on any other point other than
her claim that she felt threatened with a perjury prosecution
if she testified that she had not really been assaulted by Ortiz.
(Whether she was actually threatened and whether she would
have recanted is not directly before us.)
In light of what the jury did hear, that is, the evidence
given by the independent witness regarding the anger of and
threats by Ortiz, a prior batterer, and the condition and
statements of Miriam when she appeared at the police station
with her family, including her desire for a restraining order,
it is highly unlikely that the jury would have been much
moved if she had been subjected to the further crossexamination propounded by Ortiz.3 In fact, the evidence that
she had been battered by Ortiz was “strong”4; it is doubtful
that the jury’s decision would have been “much more
difficult”5 if it had heard a different story from her when she

3

W hile Miriam’s testimony had importance, it was well corroborated on
material points and cross-examination was not otherwise restricted.
4

5

United States v. Larson, 495 F.3d 1094, 1108 (9th Cir. 2007) (en banc).
Slovik v. Yates, 556 F.3d 747, 756 (9th Cir. 2009).

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was on the witness stand. In short, giving the proposed crossexamination evidence its full damaging potential, in my
opinion any error was harmless.
Thus, I respectfully dissent.

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