PEOPLE v. GRIMES (GARY LEE)Amicus Curiae, State Public Defender, Amicus Curiae BriefCal.July 23, 2014DE AT H PE NA LT Y ‘Seger SUPREME COURT COPY poy foe Po(OSC TY STATE OF CALIFORNIA Edmund G Brown Jr., Govemor OFFICE OF THE STATE PUBLIC DEFENDER Barry P. Helft . Chief Deputy State Public Defender 1111 Broadway, Suite 1000 Oakland, California 94607 E-mail: helft@ospd.ca.gov. SUPREME COURTJuly 22, 2014 FILED Mr. Frank A. McGuire Clerk of the Court - JUL 23 2014 Supreme Court of California 350 McAllister Street | Frank A. McGuire Cierk San Francisco, CA 94102 Deputy Re: People v. Grimes, 8076339 Dear Mr. McGuire: On June 18, 2014, the Court invited the parties in the above caseto file supplemental letter briefs in response to three questions. By the motion accompanying this letter brief, the Office of the State Public Defender (OSPD)seeks to file this pleading addressing only Question No. 1, which asks: Does the Attorney General’s failure to argue in the answerbrief that an alleged error is harmless constitute forfeiture of any harmless error argument regarding either state law errors or federal constitutional errors? Because OSPD takes a broaderview ofthe significance of this question than reflected by the approachof the parties, OSPDfiles this letter brief in support of neither party. The issue OSPD addresses, however, is a necessary byproductof the question presented by the Court and should be answered whenthe Court resolvesthis question in its opinion. IL. TheIssue Of Ultimate Import Reflected By This Court’s Query Is Not Necessarily Whether The Attorney General Has Forfeited The Right To Make A Harmless Error Argument, But Rather How This Court Should Address The Consequences OfIts Failure To Argue Harmless Error. The Court understandably has phrased its question in terms of what happened during the presentation of an issue in appellant’s case: the Attorney General failed in its briefing in the Court to present an argumentthatthe error at issue was harmless, but then attempted to assert that position at oral argument. (See Grimes Supplemental Letter OSPD Amicus Letter Brief July 22, 2014 Page 2 Brief, pp. 2-5.) While an appropriate matter of inquiry, the issue of whetherthe state has forfeited its right to make a harmless error argument is merely the initial point of inquiry. Answering only that question leaves unanswered the moreessential inquiry: And then what happens, i.e., what are the consequencesofthe forfeiture? It is this question — the “and then what happens”part of the overall issue — that gives broader meaning to the Court’s inquiry and presents a question of broader import to the appellateprocess. If the answer is that nothing much happens because the Court will proceed to resolve an appeal in the same mannerit would haveif the state had briefed harmlessness, then OSPD submits that great damage will be done to the appellate system as a whole. It is this broader prospect that OSPD addressesin thisletter brief. Il. The Appellate System Depends Upon The Parties Litigating And The Reviewing Court Deciding The Claims Raised On Appeal. Bydint of constitutional provision, statutory direction, and procedural rule,all of the participants in the review processin this state have defined roles.to play. In acriminal case, the defendanthasthe right to review by an appellate court, providing the claims are presented in a prescribed manner and according to procedural dictates. The state then has an opportunity to respond and present argumentas to why the judgment should stand. Therole of the reviewing court is to assess the merits of these competing views and | --- gender a decision either affirming or reversing the judgment below. This system does not ' contemplate that the reviewing court should also playthe role oflitigant and proffer independentreasonsas to why a judgmentshould be affirmed or reversed where a party hasfailed to take such a position. OSPD urgesthis Court to reaffirm this procedural construct by clarifying that it is not the proper role of a reviewing court to raise independently, and subsequently rule upon, the prejudice componentof a defendant’s claim whenthestate has not placed that aspect of the claim into question. _ The general premise of the adversary system is that we rely upon the opposing parties to present issues upon which there is a controversy and then rely upon the courtsto ____._.act as neutral arbiters of those issues. The operative presumption is thatthe opposing _ | ~~ “parties haveavestedinterestinbest presentingtheirviews and will advanice the facts and arguments which entitle them to relief. (Greenlaw v. United States (2008) 554 U.S. 237, 243-244.) For this reason, the role of the courts is a more passive one than mayexistin other countries in that courts here “wait for cases to come to [them], and when they do _ [courts] normally decide only questions presented by the parties.” (United States v. Samuels (8 Cir. 1987) 808 F.2d 1298, 1301 (ArnoldJ., conc. opn. in denial of reh’g en banc); see Kaplan, Civil Procedure—Reflections on the Comparison ofSystems (1960) 9 Buffalo L. Rev. 409, 431-432 [United States system “exploits the free-wheeling energies of counseland places them in adversary confrontation before a detached judge”].) OSPD AmicusLetter Brief July 22, 2014 Page 3 Thestatutes andrules that regulate the appellate process in this state recognize these general themes. For example, the Rules of Court set forth a regimented procedure for the parties to follow in filing briefs presenting their side of the controversy (Cal. Rules of Court, rule 8.360), and there is a specific statute that prevents a reviewing court from rendering a decision based onan issue that the parties have not had the opportunity to brief (Gov. Code, § 68081). Further, as appellant points out, reviewing courts have consistently refused to considerclaims that were not asserted in a mannerthat enables the opposing party to respond as contemplated by the appellate structure of this state. (See Grimes Supplemental Letter Brief, pp. 5-6.) Thereis also a constitutional component embeddedin the concept that the parties present arguments and the courts adjudicate the arguments presented: the separation of powers doctrine. The California Constitution provides that the powers of state governmentare divided betweenthe legislative, executive, and judicial branches and that © one branch maynot exercise a powerof the other except as permitted by the Constitution. (Cal. Const., art. III, § 3.) Basically, one branch cannot arrogate to itself the core functions of another branch. (Jn re Lira (2014) 58 Cal.4th 573, 583; see Perez v. Richard Roe (2006) 146 Cal.App.4th 171, 176-177 [doctrine prevents overreaching by one branch againstanother].) This does not mean that one branch may not perform a function that affects another branch, but rather means that the exercise of such a function may not materially impair the exercise of a power of the other branch. (In re M.C. (2011) 199 Cal.App.4th 784, 804.) For example, the judiciary has the core power to decide whethera ~ law passed by the Legislature is arbitrary for constitutional purposes, but the judiciary may not inquire into the wisdom of the underlying policy choice the Legislature made in passing the law. (People v. Bunn (2002) 27 Cal.4th 1, 17.) This Court has recognized that even though the Constitution suggests a sharp demarcation between the three branches of government, thereality is that there is some mutual dependence. (Superior Court v. County ofMendocino (1996) 13 Cal.4th 45, 52-53.) The Court has also recognized, however, that the separation of powers doctrine unquestionably placeslimits uponthe actions of each branch with respectto the other branches. (/bid.) Theaction that a reviewing court takes when confronted with a situation suchas that presented in this case is affected by these principles and implicates the core functions of boththe judiciary and the executive branches.¥ 1 The Attorney General anddistrict attorney offices are consideredpart of the executive branch for separation of powers purposes. (See People v. Parmar (2001) 86 Cal.App.4th 781, 797; People v. Mikhail (1993) 13 Cal.App.4th 846, 854.) - OSPD Amicus Letter Brief July 22, 2014 Page 4 lif. The State’s Decision To Not Contest The Harmfulness Of An Error Impacts The Manner In Which This Court Undertakes Its Prejudice ’ Analysis. Examiningtherules, statutes, constitutional provisions, and case law yields the conclusion that whenthestate fails to present argument regarding the prejudice componentof an error, a reviewing court mustalter its approach in deciding whether that error warrants relief.” To proceedasif it is “business as usual” disregards the nature and purpose of the adversary system. The mostblatantaffront to the adversary system occurs when the respondent totally abdicates its roleby failing to file a brief in the reviewing court. In that situation, courts have differed in how to approach resolution of the appeal. The differing views include that such a failure raises at least an inference the party concedes the appeal has merit (see People v. Carson (1970) 4 Cal.App.3d 782, 784-785); that the failure is a consentto a reversal (Grand v. Griesinger (1958) 160 Cal.App.2d 397, 407); or that the failure is an abandonmentof any attempt to support the judgment (Roth vy. Keene (1967) 256 Cal.App.2d 725, 727-728). There is also the view that reversal is not automatic because the burden is always on appellant to show error. (Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224, 226-227.) Finally, there is a view that seemsto reflect the position taken by the current iteration of the Rules of Court. In Walker v. Porter (1974) 44 Cal.App.3d 174, 177, the court of appeal held that “the better rule is to examine the record on the basis of appellant’s brief and to reverse only if prejudicial error is found.” This approach seems compatible with the provision in the Rules of Court that when a respondentfails to file a brief, the court decides the appeal on the record, the opening | brief, and any oral argument by appellant. (Cal. Rules of Court, rule 8.360(c)(5)(B).) The foregoing approachreflects the situation where there has beena total failure of advocacy, whichis not the situation when, as in Grimes,the state simply fails to make a prejudice argument, but otherwise contests the specific assertion of error, as well as seeks to support the judgment as a whole. The dynamic presented bythelatter situation is ___ different than thatpresented bya total failure to contest the appeal. Whentherespondent= = =«_- ~~fullyaddressesaclaimbut doesnotargueprejudice,thereasonable inferenceisthatthere has been a conscious decision that prejudice cannot be refuted. Indeed, that is whatthis 2 OSPDis awarethat this Court has invited further briefing that has yielded a harmless error argument by respondent. (See Respondent’s Supplemental Letter Brief, pp. 5-19.) However, unless this Court imposes uponitself and the intermediate courts of appeal the requirementthat in all cases where the respondent has failed to address prejudice, the reviewing court mustaffirmatively reach out and invite further briefing, the mannerof resolving the prejudice issue without input from the respondentis onethat this Court should address. OSPD AmicusLetter Brief July 22, 2014 Page 5 Court has specifically held. In People v. Johnson (1980) 26 Cal.3d 557, this Court noted: Defendantdoesnot assert that the delay actually preyudiced his defense. Indeed, defendantby his silence onthis issue essentially concedes the absence of prejudice... (Id. at p. 574 [addressing prejudice component on speedy-trial claim on appeal].) This is logical, and OSPD urges the Court to continue to follow this approach. The assumption that the failure to argue lack of prejudice constitutes an implicit concession that prejudice exists is supported by manyofthe legal principles discussed previously in this letter brief. For example, under the theory that our adversary system relies upon opposingparties to present competing views for adjudication by an impartial and detachedjudiciary, the assessmentof a party that there is no adversarial position to be taken on the issue of prejudice certainly is entitled to deference. This also makes sense becauseofthe nature of the prejudice determination. The “question as to whether the error was sufficiently prejudicial to require a reversal must be determined from the circumstancesof the particular case.” (People v. La Verne (1957) 148 Cal.App.2d 605, 610.) The parties are in a unique position to make this assessment. As one judge has observed: Counsel almost always know great deal more about their cases than we do, and this mustbe particularly true of counsel for the United States, the richest, most powerful, and best representedlitigant to appear before us. (United States v. Samuels, supra, 808 F.2d at p. 1301 (Arnold, J., conc. opn. in denial of reh’g en banc).) Judge Arnold’s words ring just as true when “State of California”is substituted for “United States.” Accepting the implicit concession of the prejudicial effect of an error that arises from the state’s decision to not present a prejudice argumentalso honors the separation of powers doctrine. One must assume that whenthestate files a lengthy brief responding to an appellant’s contentions as to why reversal is warranted,the failure to include a prejudice argumentas to a claim of error was a prosecutorial decision. Afterall, prejudice is a componentof virtually all claims placed before a reviewing court, so it is not something likely to be overlooked. Consequently, it is reasonable to conclude that the representativeof the state has made a decision to not advance such an argument. This is a ~ core function of the executive branch, and the “[s]eparation of powers doctrine precludes ~~prosecution’s oleauthority-todeterminewhomtochargebasedonseparationof~~~ OSPD Amicus Letter Brief July 22, 2014 Page 6 courts from interfering with executive decisions of prosecutorial authorities.”” (People v. Honig (1996) 48 Cal.App.4th 289, 355.) IV. This Court’s Role Should Be That Of A Detached Arbiter Assessing The Merits Of The Issues In The Manner In Which They Are Presented By The Parties. The ultimate question for resolution by this Court is how a reviewing court should approachits task of deciding a claim of error when the respondenthas not addressed the prejudice component of a claim. To that end, the discussion until this point has provided a backdrop for answering that question. The answer varies depending upon the type oferroratissue. If the error being considered is federal constitutionalerror, the resolutionis fairly straight-forward. OSPD agrees with the analysis set forth in Grimes’s Supplemental Letter Brief at pages eight through twelve, and urges the Court to make clear the principle that when the state fails to assert an argumentthat the federal error at issueis harmless beyond a reasonable doubt, they have concededthat issue. Afterall, that is whatthis. Court has held regardingthe defendant’s failure to assert prejudice. (See People v. Johnson, supra, 26 Cal.3d at p. 574.) The question of the reviewing court’s role in determiningstate law erroris somewhat more complex and involves an integration of the roles of the parties in the appellate system with the mandate of the California Constitution that no judgment be set aside unless there has been a miscarriage of justice (Cal. Const., art. VI, § 13), which this Court has read to mean that the defendant need show there exists a reasonable probability that he or she would have obtained a more favorable result if the error had not occurred. (People v. Montes (2014) 58 Cal.4th 809, 876.) Consequently, the defendant bears a 3 In a broad sense, one might analogize this decision to the executive decision regarding whether to bring charges or not. (See People v. Birks (1998) 19 Cal.4th 108, powers].) Certainly, in exercising its charging discretion the prosecutor assesses the evidence and determines whom to charge and what chargeto bring. Part of this determination must necessarily be what evidentiary support is necessary tobring that charge. An inherentpart of that determination is whetherthe prosecution would bring the charge without any particular piece of evidence. By reaching the conclusionthat an error is not harmless, the prosecutor — in this case the Attorney General — is performing the same analysis that took placeinitially when exercising the charging function; the Attorney Generalis determining that the evidence at issue was crucial to being able to prove the case and that without it the charge would not have been brought. This is an executive function and notajudicial function. OSPD Amicus Letter Brief July 22, 2014 Page 7 burden to demonstrate prejudice resulting from the error, and the issue for resolution here is how a reviewing court approaches its role when the respondent hasnotaffirmatively arguedthat the defendanthas failed to carry that burden. Theinitial question is whether the state’s failure to contest whether the defendant has metthis burden constitutes a concession on thepart of the state that the burden has been metand the error meets the miscarriage ofjustice test. Given the authorities previously discussed in this letter brief, this Court could make such a finding. The real issue, however, is whether the Court is then bound by the concession and obligated to order a reversal of the judgment. Appellant Grimes indicates that because of the defendant’s burdenin this regard, the state’s failure does not constitute a forfeiture, and the burden remains with the defendant to demonstrate prejudice. (Grimes Supplemental Letter Brief, p. 7.) Evenif this is true, it does not resolve the question of the approach the reviewing court should adoptto decide the issue. Appellant Grimes suggests that the reviewing court adopt a procedure that orders the state to respondto the issue, followed by a defense reply, and then an opportunity for oral argument. (Grimes Supplemental Letter Brief, p. 8.) Certainly, this would be an acceptable procedure. OSPD suggests, however,that it places the burden on the appellate courts to engage in another roundof briefing and argument — a burdenthat is unwarranted whenthestate has already made an affirmative decision to proceed with the case asis. Thus, evenif this procedure is suggested as an available option for reviewingcourts, this Court should also address the proper approach for a reviewing court short of undergoing further briefing and argument. OSPD submits that the proper approachis that envisioned by the Rules of Court. In the absence of the respondent contesting the defendant’s prejudice argument, the reviewing court decides the issue by assessing the defendant’s argumentin light of the record of the case. (See Cal. Rules of Court, rule 8.360(c)(5)(B).) In other words, the reviewing court takes the argument presentedat face value and determines whetherthat argument, when assessed against the record, demonstrates a miscarriage of justice. Under this approach, the reviewing court does not supply independent reasons that would more appropriately be raised by the respondent as to why appellant’s argument does not show prejudice. This is the same general approach this Court has taken when defendants have failed to sufficiently construct arguments on their own behalf. For example, in People v. Stanley (1995) 10 Cal.4th 764,the defendant madea claim of insufficiency of the evidence, but merely referred the Court to his statement of facts rather than specify with particularity why the evidence wasinsufficient. This Court held thatits role was not to “construct a theory supportive of his innocence and inconsistent with the prosecution’ s version of the evidence.” (Id. at p. 793.) Similarly, it is not a reviewing court’s roleto construct such theories on behalf of a respondent who has chosen to not contest the OSPD AmicusLetter Brief. July 22, 2014 Page 8 defendant’s claim of prejudice. Howthis approach would operate can be seen with a hypothetical based on the claim in Grimesas presented bythe partiesin their briefing at the time of oral argument. Attrial, prosecution witness A gave testimony supporting an element of the charged crime, andthe trial court excluded testimony by defense witness Z that would have contradicted A. On appeal, defendant challenges, as state-law error, the exclusion of Z’s testimony and arguesthe error was prejudicial because (1) Z would havedirectly refuted A, whose testimony wasthe primary proof of the element, and would have more generally impeached A’s credibility and (2) in her closing argument, the prosecutor emphasized A’s testimony as proving the element and noted that the defense did not impeach A on this point. In response,the state disputes the claim of error, butis silent as to the question of prejudice. Assumingthat the trial court’s ruling excluding Z’s testimony was erroneous, the reviewing court should makeits prejudice determination by assessing whether the record supports the arguments defendant makes and whether defendant’s arguments demonstrate a reasonable probability thathe would have obtained a more favorable verdict in the absence of the error. (People v. Watson (1956) 46 Cal.2d818, 837.) The reviewing court, however, should notgo further and posit other theories about why the error was harmless, such as arguments that (1) A’s testimony wasnotthe primary or only evidence in support of the elementor (2) A was impeached by defendantin other ways. Again, the reviewing court should limitits role to evaluating the arguments actually presented andaccepting or rejecting them on their own merits. It should not reach out and sua sponte identify, articulate and judge harmless-error arguments that could have. been, but were notraised, by thestate. Vv. CONCLUSION OSPD urges the Court to provide guidelines for all reviewing courts in this state to follow regarding how to equitably approach a situation where the respondentin a criminal appeal has failed to contest the prejudiceaspect of a claim. OSPDdoesnot believe that criminal appeals should be determined by gamesmanship or in any mannerother than on _ the meritst oftthe claimsnsbeinglitigated,butdoes believe that i n the1¢ JongTurrunthee appellateoo. * Contrary to the state’s unsupported suggestion, nothing in article VI, section 13 requires a different approach. (See Respondent’s Supplemental Letter Brief, p. 3 [referring to the reviewing court’s “independentstate constitutional duty” to determine. whether any error was harmlessandits inability to reverse a conviction“without independently reviewingthe trial court record”].) Certainly, an appellate court cannot reverse a judgmentwithout finding there was a miscarriageof justice. But neither the text of the constitutional provision, nor the casesinterpreting it, impose an obligation upon the appellate court to review the case “independently” of — that is, separately from — the prejudice arguments presented bythe parties. OSPD AmicusLetter Brief July 22, 2014 Page 9 system functions best if both parties to the litigation play their roles and the appellate court acts as the detached and impartial arbiter that the system envisions. In that regard, guidelines are necessary so that reviewing courts are notplacedin the untenable — and constitutionally questionable — position of substituting for the executive branch while carryingouttheir judicial branch functions. Such a posture benefits no one and harms the integrity of the judicial system. Dated: July 22, 2014 Respectfully submitted, Michael J. Hersek State Public Defender — Barry P. Helft Chief Deputy State Public Defender Cal.Bar No. 85659 Nina Rivkind Supervising Deputy State Public Defender Cal.Bar No. 79173 Attorneys for Amicus Curiae Office of the State Public Defender CERTIFICATE OF COUNSEL (Cal. Rules of Court, rule 8.630) I, Barry P. Helft, Chief Deputy State Public Defender, prepared the Amicus Letter _ being filed in support of neither party. I conducted a word countof this Amicus Letter using our office’s computer software. On the basis of that computer-generated word count, I certify that this Amicus Letter is 3845 wordsin length. BD. Barry P. Helft ~ Attorney for AmicusLoo DECLARATION OF SERVICE Re: People v. Gary Grimes Superior Court No. 95F7785 Supreme Court No. S076339 I, KECIA BAILEY,declare that I am over 18 years of age, and not a party to the within cause; my business address is 1111 Broadway, 10th Floor, Oakland, California 94607, that I served a true copy of the attached: AMICUS CURIAE LETTERBRIEF IN SUPPORT OF NEITHER PARTY on each of the following, by placing the same in an envelope addressed (respectively) as follows: Mr. Cliff Gardner Ms. Stephanie Mitchell Attorney at Law Deputy Attorney General 1448 San Pablo Avenue . Office of the Attorney General Berkeley, CA 94702 P.O. Box 944255 (Attorney for Appellant - 2 copies) Sacramento CA 94244-2550 Hon. Stephen Carlton Clerk of the Court Shasta County District Attorney Shasta County Superior Court 1355 West Street 1500 Court Street, Room 219 Redding, CA 96001 Redding, CA 96001 California Appellate Project 101 Second Street, Suite 600 San Francisco, CA 94105 Each said envelope was then, on July 22, 2014, sealed and deposited in the United States Mail at Alameda, California, the county in which I am employed, with the postage thereon fully prepaid. I declare under penalty of perjury that the foregoing is true andcorrect. Executed on July 22, 2014, at Oakland, Californi UhI. Fs\,{ DECLARANT
