PEOPLE v. GRIMES (GARY LEE)

Appellant’s Petition for Rehearing

Cal.January 15, 2015

SUPREME COURT COPY COpy IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE > $076339 OF CALIFORNIA, ) > Respondent, } Superior Court (Shasta) ) 95F7785 % ) ) GARY GRIMES, 3 SUPREME COURT 5 FILED Appellant. ) , JAN 15 2015 FrankA, APPELLANT’S PETITION FOR REHEARING Appeal From TheJudgment Of The Superior Court OfThe State Of California, Shasta County Honorable Bradley L. Boeckman, Judge CLIFF GARDNER (State Bar No. 93782) 1448 San Pablo Avenue Oakland, CA 94606 Tel: (510) 534-9404 Fax: (510) 534-9414 Attorney for Appellant Gary Grimes EATH PENALTY TABLE OF CONTENTS INTRODUCTION.....cee ce eee eee eee ene eee eee eee eee 1 STATEMENT OF FACTS ..... 0.0... cece eee eee eee ees‘Lecce eee eeeeee 5 ARGUMENT..... 0... ceceee eee eee eee eee eee eee eaes 11 1. THE MAJORITY DECISION PERMITTING THE STATE TO IGNORE TL, THE RULES OF APPELLATE PROCEDURE, AND RAISE HARMLESS ERROR FOR THE FIRST TIME AT ORAL ARGUMENT, IGNORES DECADES OF PRECEDENT THROUGHOUT THE COUNTRY, TREATS THE PARTIES IN CRIMINAL CASES IN A PATENTLY DISPARATE MANNER, AND ARTICULATES A RULE WHICH IS UNWORKABLEIN THE INTERMEDIATE COURTS OF APPEAL ....................--05- \1 A. The Majority’s Decision Departs From Decades OfPrecedent On This Very Issue 2...ccceect e ee eee eee eeeae 12 B. The Majority’s Decision Creates An Unfair Distinction, Permitting The State Alone To Refrain From Briefing Harmless Error, Test The Waters At Oral Argument, Raise Harmless Error For The First Time At Oral Argument And Then Brief The Issue Fully .....................0.. 20 C. The Majority’s Decision To Permit The State To Raise Harmless Error For The First Time At Oral Argument, With Full Post-Argument Briefing Followed By A Second Oral Argument, Imposes An Unworkable And Impractical Rule On The Intermediate Appellate Courts 2...ceceence teen eee e neces 25 THE MAJORITY’S PREJUDICE ANALYSIS REGARDING THE EXCLUSION OF MORRIS’S STATEMENTS DOES NOT RECOGNIZE OR APPLY THE RIGOROUS STANDARD OF REVIEW APPLIED TO PENALTY PHASE ERRORSIN CAPITAL CASES ......... 000.0... cece eee eee eee 28 A. The Penalty Phase Evidence And Arguments And The Evidence Excluded 1.2.2... 0... cc cece ce ee eee eee en tenes 29 B. The State Did Not Carry Its Burden OfProving Beyond A Reasonable Doubt That Exclusion OfThe Evidence Was Harmless .............. 33 CONCLUSION 1.2.00... eee cece ete ee teen e teen teenies 39 TABLE OF AUTHORITIES FEDERAL CASES Arizona v. California (2000) 530 U.S. 392 1.0...ccce eee 12 Atkins v. Virginia (2002) 536 U.S. 304 2.0... ccccen ee 18, 32 Chapmanv. California (1967) 384 U.S.18 2.0... ccceee ees 33 Delaware v. Van Arsdall (1986) 475 U.S. 673 2.0...eeeee eee 33 Greenlaw v. United States (2008) 554 U.S. 237 0.00... ccc ce ee ees 12 Grover v. Perry (6th Cir. 2012) 698 F.3d 295 2.0.0... ce ccc ees 16 In re Campbell (Sth Cir. 2014) 750 F.3d 523 2.0... ccc cee eee 32 Lufkins v. Leapley (8th Cir. 1992) 965 F.2d 1477 1.0...ce eee 16 Nelson v. Quarterman (Sth Cir. 2006) 472 F.3d 287 0.0... cece ee 16 Rose v. Clark (1986) 478 U.S.570 2.0...ccene eeneee 33 Tennard y. Dretke (2004) 542 U.S.274 2.0... ceceete ee 28 United States v. Brooks (9th Cir. 2014) 772 F.3d 1161 .................0. 17 United States v. Giovannetti (7th Cir. 1991) 928 F.2d 225 ........... 15, 16, 22 United States v. Gonzales-Flores (9th Cir. 2005) 418 F.3d 1093 ......... 15, 22 United States v. Hasting (1983) 461 U.S. 499 (1983) ........... 0.220000 ee 33 United States v. Kloehn (9th Cir. 2010) 620 F.3d 1122 ................... 16 United States v. McGlaughlin (7th Cir. 1997) 126 F.3d 130 ..........2.... 16 United States v. Mclaughlin (3rd Cir. 1997) 126 F.3d 130 .........0.2...0. 16 United States v. Pryce (D.C. Cir. 1991) 938 F.2d 1343 .......0..0..... 15, 16 United States v. Rodrigues Cortes (1st Cir. 1991) 949 F.2d 532 ............ 16 United States v. Rose (1st Cir. 1997) 104 F.3d 1408 .................. 15, 22 United States v. Torres-Ortega (10th Cir. 1999) 184 F.3d 1128 ............ 16 il Yates v. Evatt (1991) 500 US. 391 20.eecee cence ees 33 STATE CASES Fletcher v. Commission on Judicial Performance (1998) 19 Cal. 4th 865 ..... 12 Harlow v. State (Wyo. 2003) 70 P.3d 179 2...ecec eee eee 16 People v. Abilez (2007) 41 Cal. 4th 472 2...ccc ee cee 33 People v. Alvarez (1996) 14 Cal. 4th 155 2...cece eee ee 13 People v. Bouzas (1991) 53 Cal. 3d 467) 2...cece eee 14 People v. Bowers (2001) 87 Cal. App. 4th 722 ......... Licceeeeeaeeeees 36 People v. Boyde (1988) 46 Cal. 3d 212 2.0...ceceeee 28, 36 People v. Cardenas (1997) 53 Cal. App. 4th 240 ........ 0.0... ...0 00000 13 People v. Carrington (2009) 47 Cal. 4th 145 2.0... 24 People v. Carroll (2014) 222 Cal. App. 4th 1406 ...................005. 13 People v. Crow (1993) 6 Cal. 4th 952 2.0... cece nee 13, 20 People v. Dixon (2007) 153 Cal. App. 4th 985.2... 2... ccc eee eee 13 People v. Duff(2014) 58 Cal. 4th 527 0...cccece eee 13, 20 People v. Gonzales (2011) 51 Cal. 4th 894 2.0.0... eee eee 13, 20 People v. Harris (2008) 43 Cal. 4th 1269 2.0.0.0... ccc ce ee ee 13 People v. Hill (1992) 3 Cal. 4th 959 2...ccc cc eee nee 14 People v. Isaac (2014) 224 Cal. App. 4th 143 ........... Lecce ene eee eee 14 People v. King (1991) 1 Cal. App. 4th 288 2.0.2...eee 13 People v. Marshall (1990) 50 Cal. 3d 907 2.0.2... ec ccc eee ce ees 13 People v. Mil (2012) 53 Cal. 4th 400 22.2...ccccee nes 33 People v. Mitchell (1995) 36 Cal. App. 4th 672 ........0.........0000 000 13 People v. Norman (1999) 75 Cal. App. 4th 1234 .................0...000- 13 ili People v. Powell (1967) 67 Cal. 2432 2.0.0... ccc cc cece cece ees 34 People v. Rodriguez (1986) 42 Cal. 3d 1005... cece eee cee eee eeeeeeee 33 People v. Soojian (2010) 190 Cal. App. 4th 491 ........0....0...0....00.0. 36 People v. Stanley (1995) 10 Cal. 4th 764 .......... 0.0.0.0. 0c cece 13, 20 People v. Taylor (1982) 31 Cal. 3d 488 2.0.2...eeeeee eee 33 People v. Werner (2012) 207 Cal. App. 4th 1195) 6...eee eee 14 People v. Woon Tuck Wo (1898) 120 Cal. 294 2.0... 2. eee cee eee 13 Polk v, State (Nev. 2010) 233 P.3d357 2... eeecc ete eee 16 Randolph v. United States (D.C. Ct. Ap. 2005) 882 A.2d210.............. 16 Rose v. United States (D.C. 1993) 629 A.2d 526 1.0... ccc cece eee 15 State v. Hooks (Oh. 1988) 529 N.E.2d 429... 0.2.2... eee cece ee eee eee 32 State v. Porte (Minn. 2013) 832 N.W.2d 312........ 0... cece ce eee 16 1V INTRODUCTION Gary Grimes was charged with murderin the 1995 death of Betty Bone. Atall times the trial prosecutor acknowledged that Mr. Grimeshadnotkilled anyone, that the real killer was John Morris, and that Mr. Grimes was instead an accomplice to felony murder. Morris killed himself shortly after he was arrested. The prosecutor then sought death against Mr. Grimes. Although Grimes hadnot killed anyone, the prosecutorrelied on testimony from a jailhouse snitch that Grimes confessed to ordering the killing, watching the killing and enjoying the killing. The trial court excluded admissions Morris madethat he acted alone, that Grimes wassurprised at and took no part in the killing and that he was not even in the room whenit occurred. On appeal, Mr. Grimes’s major claim of error wasthat the trial court’s exclusion of this evidence violated both state and federal law and required a new penalty phase. Throughout the course ofbriefing, the state vigorously contended that no error had occurred. The state did not, however, dispute that if error had occurred, a new penalty phase wasrequired. In the middle of oral argument, the state took a completely different tack, arguing for thefirst time that even if error did occur, it was harmless. After argument, this Court vacated submission of the case and gavethe state a secondbite at the apple, soliciting supplemental briefing on the merits ofthe harmlesserror issue. Resolving an issue of first impression for California courts -- and as Justice Liu noted in his dissenting opinion -- a majority of the Court ultimately found “no legal or practical significance in” and “assign[ed] no consequence”to the Attorney’s General’s decision not to address harmlesserrorin its briefing. This Court then divided 4-3 on whetherthe error was harmless. In a dissenting opinion, Justice Werdegar reviewed both the mitigating and aggravating evidence presentedat trial, as well as the prosecutor’s closing argument focusing on the jailhouse snitch. She noted the evidence on the defense side of the scale included evidenceofintellectual disability, brain damage and schizophrenia, a dysfunctional childhood, family members expressing love for defendant and numerous acts ofkindness defendant had committedin his life. After reviewing both sides of the penalty phase case, Justice Werdegar noted the “relative equipoise of evidenceat the penalty phase” and concludedthat the improperly excluded evidence “would likely have been decisive in convincing the jury to disregard”the jailhouse snitch’s testimony that Mr. Grimesordered, watched and enjoyedthekilling. In a separate dissenting opinion, Justice Liu noted the penalty phase lasted 11 days and involved 25 witnesses. Like Justice Werdegar, Justice Liu reviewed both the aggravating and mitigating evidence and noted the prosecutor’s explicit reliance on the jailhouse snitch in his closing argument. After reviewing both sides ofthe penalty phase case, Justice Liu concluded he “would notfind the error harmlessat the penalty phase.” In a short section of its opinion, however, the majority disagreed, finding any error harmlessas to the penalty phase. In making this determination, the majority did not reference any of the mitigating evidence presentedat trial. Nor did the majority reference the prosecutor’s explicit reliance on the jailhouse snitch in her argument urging the jury to impose death. Rehearing is appropriate for two reasons. First, as noted, the state did not even brief harmlesserror in its Respondent’s Brief. For sound policy reasons, there are serious consequences when a defendantfails to raise an issue in his briefing to this Court. As Justice Liu observedin his dissent, the majority’s refusal to apply a similar rule when the state fails to raise an issuein its brief not only marks a novel departure from the uniform approach followed throughout the country on this very issue, but “cannot be squared with elemental notions offair play and this court’s role as a neutral arbiter in the adversarial process.” Moreover, regardless ofhow the asymmetric rule announcedby the majority works in this Court, the rule is entirely unworkable in the intermediate appellate courts whichissueda total of 9,429 written opinionsin fiscal year 2013 in appellate matters alone, including nearly 5,000 criminal appeals. Second, rehearing is appropriate in connection with the merits of the majority’s harmlesserror analysis. The majority recognized that “the prosecution presented no evidence that defendant had actually participated in the homicidal act” and no evidence “suggested that defendant assisted Morris in killing [Ms.] Bone.” Thus, the jury was being askedto take the relatively unusual step of sentencing a conceded non-killer to death. Thetrial court had excluded evidence from the actual killer that Grimes was surprisedat the killing, took no part in the killing and was not even in the room whenit occurred. In assessing whetherthe state had carried its burden ofproving beyond a reasonable doubtthat exclusion of this evidence was harmless, federal and state law required the Court to consider both the aggravating and mitigating evidence presentedat trial. The conclusion of the 4-3 majority that exclusion of this evidence constituted. harmless error simply cannot be squared with thefacts of this case or the rigorous standard ofharmless error review which must be appliedto constitutionalerrors in capital Cases. STATEMENTOF FACTS In 1995, Betty Bone was killed during a burglary ofher home in Redding. Attrial, there was no dispute that the murder was committed by John Morris and that Mr. Grimes had never killed anyone. Theparties also recognized that Mr. Grimes wasinvolvedin the underlying burglary and robbery, and was therefore guilty of murder as an accomplice. Mr. Grimes offered to plead guilty prior to trial, an offer which the state declined. The real question came downto whether the jury would sentence Mr. Grimes to die. At the penalty phase, the jury was presented with both aggravating and mitigating evidence. It is rare for the death penalty to be applied to a defendant who hasnotkilled. As Justice Liu noted in his dissenting opinion, “{a]mong the nearly 1,400 executionsin the United States since 1976, only 20 involved a capital defendant who did not actually kill . . ..” (People v. Grimes, supra, 2015 WL 47493at * 61.) To support its relatively unusual case for death for an acknowledged non-killer, the state presented evidence regarding Mr. Grimes’scriminal history, as well as victim impact evidence. (36 RT 9824-9625, 9701, 9583-9648, 9753-9778, 9764-9765.) In addition, the state relied on jailhouse snitch Jonathon Howe. Howetestified that during a jailhouse conversation Mr. Grimestold him “he ordered . . . Morris to kill the person he’s accusedofkilling.” (31 RT 8380.) According to Howe “[Mr. Grimes said he] was standing there watching [the killing]. . . . [Mr. Grimessaid] he enjoyed watchingit.” (31 RT 8501.) With respect to mitigation, the defense presented expert testimony that Mr. Grimes was currently mentally retarded, testing from his. teenage years showing mental - retardation at that time, detailed school records confirminghisintellectual disabilities, evidence of organic brain damage and a dramatically dysfunctional childhood. (37 RT 9803-9836, 9818-9836, 9858-9859, 9962-9966, 9991; 38 RT 10028; 39 RT 10262, 10269-10272, 10434, 10462.) The defense also presented testimony from numerous family members about their love for Mr. Grimes, and evidence of good deeds he had performedin his life despite the obstacles he had faced. (38 RT 10037, 10067-10068, 10097, 10099-38100, 10165-10166, 10113-10115, 10122-10124; 39 RT 10458.) Finally, the defense presented evidence from people who knew Mr. Grimesas passive and a follower throughouthislife. (37 RT 9967, 9993; 38 RT 10032.) Counsel arguedthat in light of the expert testimony showing Mr. Grimes’ssevere intellectual disabilities, and the confirming lay testimony that he had always been passive and a follower, the state’s suggestion that Mr. Grimes had masterminded andorderedthe killing, playing the leadership role, was simply not credible. (41 RT 10866, 10868, 10869.) The prosecutor responded to this argument in the rebuttal portion ofher closing argument. Asking jurors to impose death, the prosecutor urged them to look “at Mr. Howe’s statement.” (41 RT 10879.) With respect to Mr. Grimes’srole in the offense, the prosecutor pointed to what she alleged wasa glaring evidentiary gap in the defense case, telling jurors that the defense had “never given you a reason to doubt [Howe’s] testimony.” (41 RT 10879-10880.) The jury imposed death. (6 CT 1438.) In fact, however-- and as the prosecutor knew fullwell -- there was good reason to doubt Howe’s testimony andfind the defense position credible. Shortly beforehis suicide, John Morris made statementsto his friend, Misty Abbott. Healso talked to fellow jail inmate Albert Lawson. Thetrial court admitted evidence that Morris told Lawsonhefatally stabbed Ms. Boneafter strangling her did not work. (24 RT 6747, 6749-6750, 6796, 6798.) But the trial court excluded Morris’s statements to Lawson that Grimes was“in the house but took no part in the actual killing and [was] in some other place in the house.” (24 RT 6747, 6797.) Likewise, the court excluded Morris’s statements to Abbott that (1) Grimes “did not take part in the killing,” (2) Grimes had not “participated in the killing” and (3) after Morris “did the lady” Grimes“looked at him as if [he] were saying, whatin the hell are you doing, dude.” (24 RT 6750, 6797.)' Ofcourse, anyjuror hearing that Grimes “did not take part in the killing” and was in “someother place in the house” whenthe killing occurred could reasonably have credited the defense theory as to Grimes’slimited role in the offense and just as reasonably doubted Howe’s accountthat Grimes actually ordered Morris to kill. Similarly, any juror hearing that Grimes expressed surprise or alarm at he killing (“what in the hell are you doing?’’) couldhave again reasonably credited the defense theory and doubted Howe’s account that Grimes ordered and enjoyed watchingthe killing. 1 Unbeknownstto the jury, there were substantial other reasons to doubt Howe’scredibility. Becausethe state itself was concerned about Howe’scredibility,it administered several tests. Howe first failed a voicestress test as to his credibility; three different state examiners concluded he waslying. (5 CT 1026; 30 RT 8228-8229.) He then failed a lie detector test. (30 RT 8228-8229.) When Howefinally passed a second lie detector test -- his third test overall -- the state deemed him reliable and called him as a witness. (31 RT 8344.) In light of the trial court’s ruling, on appeal Mr. Grimes contendedthatthetrial court’s exclusion of evidence whichdirectly supported the defensetheory ofMr. Grimes’s role in the offense, undercutting Howe’scredibility and rebutting the most damaging inferences from his testimony, required reversal of the death sentence. (Appellant’s Opening Brief (“AOB”) 74-91.) Specifically, Grimes contendedthetrial court’s exclusion of this evidence(1) violated state law, (2) violated federal law and (3) wasprejudicial. (AOB 74-91.) Thestate responded. Thestate filed a written brief contending only that (1) the trial court’s ruling did not violate state law and (2) the trial court’s ruling did not violate federal law. (Respondent’s Brief (“RB”) 72-77.) The state did not dispute that if error occurred, a new penalty phase was required. This was in stark contrast to the many other occasions in respondent’s brief where the state did elect to raise alternative harmless error arguments. (See, e.g., RB 95, 156-157, 162, 165-166, 191-192, 201.) The case was set for argument more than three years later -- on May 28, 2014. At oral argument, and in response to questions from the bench, the state admitted it had not placed harmless errorat issue in its brief, but announcedforthe first time that it was now advancing a newtheory that.any error was.harmless. . (People v. Grimes, S076339, Oral Argument CD ofMay 28, 2014 (“CD”) at 3:02:37-3:03:04.) After argument, the Court solicited supplemental briefing from the parties as to (1) whetherthe state could raise harmlesserrorforthe first time at oral argument and (2) if so, whether the error was harmless. The Court then set the case for a second oral argument. On January 5, 2015 the Court issued a sharply splintered 4-3 decision. Four justices ruled that (1) the state’s failure to raise harmlesserrorin its briefing was of no consequenceatall and (2) any error in excluding the evidence was harmless as to the penalty phase. (People v. Grimes (2015) 2015 WL 47493at * 18-22.) Ina dissenting opinion, Justice Werdegar found(1) the trial court erred in excluding Morris’s statements and (2) the error was prejudicial as to the penalty phase underthe “rigorous standard of review” applied to penalty phase errors. (/d. at * 44-46.) Accordingly, Justice Werdegar had no occasionto (and did not) address the separate question whether there was any consequenceto the state for failing to raise harmless error. (/bid.) Ina separate dissenting opinion, Justice Liu (joined by Justice Zelon sitting by designation) agreed that exclusion of the evidence waserror and went on to conclude (1) the Court could not simply ignore the state’s failure to raise harmlesserror, (2) there was a well- developed and uniform bodyof case law from around the country which explained exactly how to perform harmlesserror analysis in this situation and (3) applying that body of case law, a new penalty phase was required here. (/d. at * 48, 48-63.) As mentioned above, rehearing is appropriate for two reasons. First, the majority resolved a question offirst impression in California, addressing whetherthe state could forbear from raising harmlesserrorin its briefing but then raise the issue for the first time at oral argument. The majority permitted this practice, allowing the state to brief the issue for the first time after oral argument. This rule departs from the uniform weight of authority in virtually everyjurisdiction in the country to have addressed this identical issue, creates a manifestly unfair distinction between parties in the criminal justice system andis entirely impractical when applied to the thousands of criminal cases resolved by the intermediate appellate courts of this state. Second, rehearing is appropriate in connection with the majority’s 4-3 conclusion that exclusion ofthe actual killer’s critical admissions that Mr. Grimes played norole in the killing of Ms. Bone was harmless error. The penalty phase theory of defense wasthat Mr. Grimesdid not deserveto die. Instead, the mitigating evidence ofmental retardation, organic brain damage and mentalillness, a dysfunctional childhood, family members expressing love for defendant and numerousacts ofkindness was sufficient to call for mercy whenbalanced against the aggravating evidence, especially in light of the defense evidence that Mr. Grimes hadnoleadership role in the crime. Again and again, defense counsel explained the defense theory that defendant was merely a follower. (41 RT 10866, 10868, 10869.) Yet the trial court had excluded evidence directly supporting this theory -- evidence that the actual killer himself admitted he acted alone and that Grimes was surprised at and took nopart in the killing. In finding the error harmless, the 4-3 majority did not consider, or even reference, either the defense theory or any of the supporting mitigating evidence. As discussed below, the majority’s conclusionthat the death sentence should stand despite the exclusion of critical evidence pays insufficient heed to what Justice Werdegar in her separate opinion correctly called the “rigorous standard ofreview” applicable to penalty phaseerrors in capital cases. Foreither or both of these reasons, rehearing is proper. 10 ARGUMENT I. THE MAJORITY DECISION PERMITTING THE STATE TO IGNORE THE RULES OF APPELLATE PROCEDURE, AND RAISE HARMLESS ERROR FOR THE FIRST TIME AT ORAL ARGUMENT, IGNORES DECADES OF PRECEDENT THROUGHOUT THE COUNTRY, TREATS THE PARTIESIN CRIMINAL CASESIN A PATENTLY DISPARATE MANNER, AND ARTICULATES A RULE WHICH IS UNWORKABLEIN THE INTERMEDIATE COURTS OF APPEAL. Thestate did not raise harmless error in its briefing. It remained mum on the issue until the middle of oral argument when-- after testing the waters in connection with the existenceoferror -- it first raised harmless error. The state was then simply permitted to brief harmlesserrorafter the initial oral argument. This approachto the state’s decision to omit harmless error from its briefing but raise it for the first time at oral argument constitutes a stark departure from the consistent approach followed throughout the country on this very issue. Moreover, as Justice Liu noted in his concurring and dissenting opinion,in light of the consequences imposed on criminal defendants whofail to properly raise issues in their briefing, the decision “cannot be squared with elementalnotions of fair play and this court’s role as a neutral arbiter in the adversarial process.” Finally, the Court’s solution to this problem -- soliciting supplemental briefing from the parties on the harmless error question after argument-- is an utterly impractical solution for intermediate appellate courts faced with the task of issuing written opinions in many thousandsofcriminal cases per year. Rehearing is proper. 11 A. The Majority’s Decision Departs From Decades Of Precedent On This Very Issue. The United States Supreme Court has long noted that “in our adversary system, in both civil and criminalcases, in the first instance and on appeal, we follow the principle of party presentation.” (Greenlaw v. United States (2008) 554 U.S. 237, 243-244.) The principle of party presentation “relifes] on the parties to frame the issues for decision and assign[s] to courts the role of neutral arbiter of matters the parties present.” (/bid.) Itisa principle that is “basic to our system of adjudication.” (Arizona v. California (2000) 530 U.S. 392, 413.) There is no mystery to the principle of party presentation in an adversary system. The idea that the parties (rather than the court) must frame the issuesattrial and on appeal is premised on a basic understanding as to the proper role of courts and judgesin an adversary system. As this Court has noted: “{J}Judges . . . cannot be advocates for the interests of any parties; they must be, and be perceived to be, neutral arbiters ofboth fact and law [citation] whoapply the law uniformly and consistently.” (Fletcher v. Commission on Judicial Performance (1998) 19 Cal.4th 865, 910.) Butthe principle of party presentation is also premised on considerations of basic fairness to the litigants. As one court has stated in applying the principle ofparty presentation on appeal: 12 “Obviousconsiderations of fairness in argument demandthat the appellant present all of her points in the opening brief. To withhold a point until the closing briefwould deprive the People of the opportunity to answerit or require the effort and delay of an additional briefby permission.” (People v. Carroll (2014) 222 Cal.App.4th 1406, 1412, fn.5.) California courts have consistently applied this principle to criminal defendants. Wherea criminal defendantfails to raise a particular argumentin his openingbrief, there is a consequence:the court will not consider the issue even thoughthe state has time to prepare a responseprior to oral argument.” Where a criminal defendant raises an issue in his openingbrief, but fails to support the issue with sufficient argument, there is a © consequence:courts will “treat it as waived, and pass it without consideration.”? Where a criminal defendantraises an issue forthe first time at oral argument, there is a consequence:the issue will be deemed waived.‘ Here, of course, the state violated every one of these rules. The state withheld a harmless error argumentfrom its brief, said nothing about harmlesserror in the 37 months 2 See, e.g., People v. Duff(2014) 58 Cal.4th 527, 550, fn.9; People v. Gonzales (2011) 51 Cal.4th 894, 957 fn.37; People v. Harris (2008) 43 Cal.4th 1269, 1290; People v. Alvarez (1996) 14 Cal.4th 155, 241 fn.38; People v. Carroll (2014) 222 Cal.App.4th 1406, 1412 fn. 5; People v. Mitchell (1995) 36 Cal.App.4th 672, 674 fn.1; People v. King (1991) 1 Cal.App.4th 288, 297 fn.12. 3 People v. Stanley (1995) 10 Cal.4th 764, 793. Accord People v. Ashmus (1991) 54 Cal.3d 932, 985 fn.15; People v. Marshall (1990) 50 Cal.3d 907, 945, fn.9; People v. Woon Tuck Wo (1898) 120 Cal. 294, 297. 4 See, e.g., People v. Crow (1993) 6 Cal.4th 952, 960 fn.7; People v. Dixon (2007) 153 Cal.App.4th 985, 996; People v. Norman (1999) 75 Cal.App.4th 1234, 1241 fn.4; People v. Cardenas (1997) 53 Cal.App.4th 240, 248 fn. 4. 13 the case was awaiting oral argument, and then raised harmless error without any notice for the first time quite literally in the middle of oral argument. Thus, the issue squarely presented here is whetherthe state is exempt from the basic rules of fairness referenced above which impose a consequencefor the failure to brief an issue. This is an issue offirst impression for this Court. Although prior California cases generally assumedthat the fairness rules applicable to defendants also applied to the state, none of those cases discussed the matter in any detail. (See People v. Bouzas (1991) 53 Cal.3d 467, 480 [the state’s failure to respond to an appellant’s argumentin its principal brief constituted a concession ofthe point]; People v. Isaac (2014) 224 Cal.App.4th 143, 147 [same]; People v. Werner (2012) 207 Cal.App.4th 1195, 1212 [same]. But see People v. Hill (1992) 3 Cal.4th 959, 995, fn.3 [state’s failure to respondis not a concession].) Resolving this new issue, and departing from the weight of California authority, the majority here held that none of these rules applied to thestate in this capital case. In contrast to the cases cited above -- where this Court consistently imposed a consequence on defendants whofailed to properly raise an issue -- the majority here held there was no consequenceat all for the state’s identical failure. But the majority did not just depart from the general trend ofCalifornia case law. In fact, the identical issue has arisen in both federal and state courts around the country for decades. Andthe decisions of these many courts, over many years, reflects a remarkable consistency. While the rule applied virtually everywhere in the country does not imposea strict rule of forfeiture on the state, neither does it simply ignore the state’s 14 decision not to present harmlesserrorin its brief. Instead, the general rule eschews reliance on either of these polar extremes and charts a middle course: There are good reasons for this. On the one hand, imposinga strict forfeiture rule on thestate in this situation -- and holding that the state’s failure to brief the issue requires automatic reversal no matter how technical the error -- would result in an unjustified windfall to defendants. It would require newtrials (and the use ofscarce judicial resources) in many cases involving minoror technical errors, where a newtrial is totally unwarranted. (See, e.g., United States v. Giovannetti (7th Cir. 1991) 928 F.2d 225, 226-227; United States v. Gonzales-Flores (9th Cir. 2005) 418 F.3d 1093, 1100.) Onthe other hand, however, simply ignoring the state’s failure to brief harmless error presents numerous problems as well. As several courts have noted, there is an obvious unfairness in a rule which permits the state to (1) forbear from briefing harmless error, (2) test the waters in connection with arguments solely directed to the existence of error and (3) add a harmless error argument at the eleventh hour as a fallback position ifit looks like the court is going to find error. (See, e.g., United States v. Giovannetti, supra, 928 F.2d at p. 226; United States v. Gonzales-Flores, supra, 418 F.3d at p. 1100. See United States v. Rose (1st Cir. 1997) 104 F.3d 1408, 1414-1415.) Courts have also recognized that addressing an issue whichthe state did not properly raise in its briefing comes“perilously close to exercising an executive branch function” which would be “inconsistent with the neutrality expected ofthe judiciary in our adversary system of justice.” (Rose v. United States (D.C. 1993) 629 A.2d 526, 534. See also United States v. Pryce (D.C. Cir. 1991) 938 F.2d 1343, 1354 [Silberman, J., dissenting].) Justice Liu 15 noted both of these concerns in his concurring and dissenting opinion. (People v. Grimes, supra, 2015 WL 47493 at * 57 [noting the potential for manipulative lawyering] and 59 [noting separation of powers implications].) Accordingly, although somestates have in fact taken the strict approach to the state’s failure to brief harmlesserror-- applying the samestrict rule of forfeiture applied to defendants? -- the vast majority ofjurisdictions take a more moderate approach. Where,as here, the burden is on the state to prove an error harmless, and the state does not brief the harmless error question, virtually every state and federal court in the nation has concludedthere is a consequenceforthe state’s failure to dispute harmless error. In that situation, a reviewing court mayfind the error harmless only where (1) the record is short and straightforward andthe court can easily determine prejudice on its own,(2) the harmless error question is beyond debate and (3) a remand wouldbefutile. (See United States v. Giovannetti, supra, 928 F.2d at pp. 226-227. Accord United States v. Rodrigues Cortes (Ast Cir. 1991) 949 F.2d 532, 543; United States v. Mclaughlin (3rd Cir. 1997) 126 F.3d 130, 135; Nelson v. Quarterman (Sth Cir. 2006) 472 F.3d 287, 332 [Dennis, J., concurring]; Grover v. Perry (6th Cir. 2012) 698 F.3d 295, 300-301; United Statesv. McGlaughlin (7th Cir. 1997) 126 F.3d 130, 135; Lufkins v. Leapley (8th Cir. 1992) 965 F.2d 1477, 1481-1482; United States v. Kloehn (9th Cir. 2010) 620 F.3d 1122, 1130; United States v. Torres-Ortega (10th Cir. 1999) 184 F.3d 1128, 1136; United Statesv. Pryce (D.C. Cir. 1991) 938 F.2d 1343, 1347-1348; State v. Porte (Minn. 2013) 832 N.W.2d 312, 314; Harlow v. State (Wyo. 2003) 70 P.3d 179, 195; Randolph v. United s See, e.g., State v. Almaraz (Id. 2013) 301 P.3d 242, 256-257 [forthe first time at oral argument the state argues harmlesserror; held, becausethe state has forfeited the claim, reversal is required]; Polk v. State (Nev. 2010) 233 P.3d 357, 359-361 [same]. 16 States (D.C. Ct. Ap. 2005) 882 A.2d 210, 223.) As one court has characterized this approach,in order to affirm a convictionin this situation, this standard“requires a double level of certainty: [the reviewing court] must be convincedthat the error was ‘harmless beyond a reasonable doubt’ andthat‘satisfaction of that standard is beyondserious debate.’” (United States v. Brooks (9th Cir. 2014) 772 F.3d 1161, 1171.) Justice Liu applied this moderate approach here and foundtheerror prejudicial. With respect to the first factor, Justice Liu noted that the recordin this case was “lengthy and complex.” (People v. Grimes, supra, 2015 WL 47493 at * 63.) Justice Liu was correct; the record on appeal contains more than 15,000 pages (exclusive ofjury questionnaires) -- it is anything but “short and straightforward”-- and the penalty phase alone lasted 11 days and involved 25 witnesses. With respect to the second factor-- whether the harmless error question was subject to debate -- the fact of the matter is that four justices found the error harmless while three foundit prejudicial. The 4-3 split on the question of prejudice showsthat the harmless error issue here wascertainly not beyond debate. Indeed, the majority opinion candidly recognizes that the reason it was permitting the state a secondbite at the apple -- and allowing post-argumentbriefing as to harmlesserror -- was precisely because the “record is complex” and “the harmless error issue is a debatable one.” (People v. Grimes, supra, 2015 WL at* 20.)° 6 The majority’s approach not only departs from the rule followedin the rest of the country, but it actually turnsthis rule on its head. Those cases uniformly hold that wherethe state has failed to brief harmless error, a reviewing court may notfind the error harmless where the record is complex and the harmless error question is open to serious debate. The majority decision here turns every one ofthese cases around, holding that where the “record is complex”and “the harmlesserrorissue is a debatable one,” California reviewing courts may give the state a secondbite at the apple, require supplemental briefing and argumentand find the error harmless. 17 Thethird criteria identified in the case law requires an assessment of whether a remand would befutile. To some degree, of course, this inquiry mirrors the inquiry as to whether the harmless error issue is subject to serious debate. In cases where the harmlessnessofan error is clear, a remand would befutile since a new trial wouldlikely reach the sameresult. On the other hand, where (as here) the harmlessnessofan erroris not clear -- as noted, the majority itself recognizes the issue is subject to serious debate and this Court ultimately split 4-3 on this issue -- a remand would certainly not be futile since a new result might very well occur at a newtrial absentthe error.’ The majority recognized this extensive authority on the very question beforeit but noted that noneofthe case law was “binding on this court.” (People v. Grimes, supra, 2015 WL 47493 at * 19.) This is correct. But the mere fact that case law from throughoutthe country is not technically binding on this Court is not, in and ofitself, a particularly satisfying reason to depart so dramatically from that consistent authority. The competing policy considerations discussedin that extensive body of case law are equally applicable to California; as a result, the same rule -- which accommodatesthese competing concerns -- should apply here as well. 7 This case involves an additional and unusual wrinkle as to this factor. The originaltrial here was in 1998, before the Supreme Court overruledits prior authority and held that the state could not execute the mentally retarded. (See Atkinsv. Virginia (2002) 536 U.S. 304.) Mr. Grimes was diagnosed as mentally retarded as a teenager, current tests given prior to trial showedthat he tested mentally retarded in 7 of 12 areas, he scored a 60 on the Weshler Memory ScaleIII, well below the cut-off for mentally retarded, his working memory score was 67, and his Wide Range Achievement score was 62. (37 RT 9803-9836, 9818-9836, 9858-9859; 39 RT 10256-10258.) On appeal, both parties noted the substantial evidence ofmental retardation presented below. (AOB 1-2, 24-28; RB 31, 34; ARB 1-3.) On this record, a remand would notbefutile sinceit is likely Mr. Grimes will be categorically exempt from the death penalty at any newtrial. 18 Seeking to distinguish this authority, the majority correctly note that Article VI, section 13 of the California Constitution provides “[n]o judgment shall beset aside, or new trial granted, in any cause, on the ground of . . . improper. . . rejection of evidence. . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage ofjustice.” The majority -- as well as the three dissenting justices-- all held that this provision requires the Court to address harmless error even where, as here, the state elects not to brief it. (People v. Grimes, supra, 2015 WL 47493at * 19 [majority opinion]; * 44 [Werdegar,J., concurring and dissenting] and * 48, 56 [Liu, J., concurring and dissenting].) In light of this constitutional provision, the state’s decision not to brief harmless error does not constitute a complete forfeiture of the issue. But as Justice Liu also noted, although Article VI, section 13 requires this Court to assess harmlesserror, it says nothing at all about How to address the issue when the Attorney Generalhas elected not to brief it. (People v. Grimes, supra, 2015 WL 47493 at * 56.) Put another way, nothing in this constitutional provision explains why this Court should depart from the approach taken by virtually every other court in the country on this identical issue. And not only does the majority fail to cite a single case which has ever embraceda decision to give the state a secondbite at the briefing apple after hearing oral argument, but -- as Justice Liu also noted -- in light of the rules applied to defendants who fail to present certain issues in their briefing, the majority’s approachreflects an “obvious unfairness.” (People v. Grimes, supra, 2015 WL 47493 at *57.) It is to that unfairness Mr. Grimes now turns. 19 B. The Majority’s Decision Creates An Unfair Distinction, Permitting The State Alone To Refrain From Briefing Harmless Error, Test The Waters At Oral Argument, Raise HarmlessError For TheFirst Time At Oral. . Argument And Then Brief The Issue Fully. Asnoted above, based on legitimate concerns about unfairnessto the state, where a criminal defendant fails to raise a particular argumentin his opening brief, courts will not consider the issue. (See, e.g., People v. Duff, supra, 58 Cal.4th at p. 550, fn.9; People v. Gonzales, supra, 51 Cal.4th at p. 957 fn.37.) Based on similar concerns about unfairness to the state, where a criminal defendantraises an issue in his opening brief, but fails to support the issue with sufficient argument, courts will “treat it as waived, and pass it without consideration.” (People v. Stanley, supra, 10 Cal.4th at p. 793. Accord People v. Ashmus, supra, 54 Cal.3d at p. 985 fn.15.) Finally, and again based on this identical concern about faimmess to the state, where a criminal defendant raises an issue for thefirst time at oral argument, the issue will be deemed waived. (See, e.g., People v. Crow, supra, 6 Cal.4th at p. 960 fn.7.) As the majority in this case correctly noted, “to allow an appellant to raise a new issuein its reply brief or at oral argument ‘would be unfair to the respondent, and wouldincrease the labors of the court.’” (People v. Grimes, supra, 2015 WL 47493 at *18.) According to the majority, however, these rules do not apply to the state. Thus, the state may refrain from raising harmlesserrorin its brief, it may test the waters at oral argument in connection with the existence of error and then elect -- without any notice -- to raise harmlesserrorfor the first time at oral argument and in post-argumentbriefing. All without any consequenceatall. 20 The majority does not explain why a defendant’s failure to properly brief an issue is fundamentally unfair to the state, but thestate ’s identical failure to properlybrief.an issue is perfectly fine. The majority never explains why a defendant’s attempt to raise an issue at oral argument is fundamentally unfair to the state, but the state’s identical attempt to do sois perfectly fine. In short, the majority correctly recognizes that “allow[ing] an appellant to raise a new issuein its reply brief or at oral argument would be unfair to the respondent, and would increase the labors of the court.” But the majority never explains why allowing the state to raise new issuesat oral argumentis not equally “unfair to the appellant” or why it does not also “increase the labors of the court.” To the contrary, the majority recognizes that the approach it advocates will result in an increased burden “on a reviewing court’s part.” (People v. Grimes, supra, 2015 WL 47493 at *20.) The majority suggests, however, that this burden is worth it; permitting the state to raise harmless errorat oral argument and then soliciting additional briefing (as wasdonehere) “is fair to the parties and gives the court the benefit of the parties perspectives on an issue that we are obligated to address.” (/bid.) The burden onthis Court is worth it because the likelihood of a correct result is enhanced by adversarial briefing. (/bid.) The majority’s untested assumptionis that allowing this departure from procedural norms -- and permitting the state to raise new claimsat oral argument and then briefthem after argument-- will increase the likelihood of a correct result. The assumptionis questionable at best. Especially in capital cases (which often present manyissuesin the briefing), defendants select which one or twoissues to argue based on variety of factors 21 -- including the position taken bythe state in its briefing. Allowing the state to sandbag the defense decision as to which issues to argue by omitting harmless error. fromits briefing does nothing to increase thereliability or fairness of the appellate process. Moreover, as noted in the case law, the approach embraced by the majority permits the state to test the waters in briefing and argumentasto the existence of error and then-- if the waters are notto its liking -- shift to a harmless error strategy without any notice at | all. Permitting the state alone to bifurcate the presentation of its position in this way is certainly not fair, nor will it necessarily result in a more accurate appellate resolution. As to the harmless error question on whichthe state has the burden ofproof, it allows the state to brief the issue after gaining whateverinsights it can from the “dress rehearsal” oral argument. As onecourt has notedin this precise context, permitting the state to raise harmlesserror forthe first time at oral argument: “would invite salami tactics. In its main brief and at oral argumentthe government would argue that there was noerror, hoping to get us to endorse its view of the law. If it failed in that endeavor it would [then raise harmlesserror], arguing as it does in this case that it should win anyway becausethe error was harmless. Suchtactics would beparticularly questionable in a case suchas this where the defendant goes out of his way to argue that the error of which he complains wasprejudicial, and the governmentby not responding signals its acquiescencethat ifthere was error, it indeed wasprejudicial.” (United States v. Giovannetti, supra, 928 F.2d at p. 226. Accord United Statesv. Gonzales-Flores, supra, 418 F.3d at p. 1100. See United States v. Rose, supra, 104 F.3d at pp. 1414-1415.) 22 The majority’s legitimate concern for processes that enhance the reliability of this Court’s decision making does notreally address the larger inequity here at all. There-can be no real dispute that the accuracy of this Court’s decision making is enhanced by adversarial briefing. But as Justice Liu observed, “[w]hen a defendant omits a particular argument in the opening brief and attemptsto raise it in the reply brief orat oral argument, we do nottypically pardon the oversight for the sake of greater accuracy in determining whetherthetrial court reached the correct result.” (People v. Grimes, supra, 2015 WL 47493 at * 57.) AsJustice Liu’s observation suggests, it is important to encourage adversarial briefing in the context of a set ofprocedural rules that are fairly applied to both parties. If the Court believes that permitting new argumentsto be raised at oral argument, followed by post-argumentbriefing, will enhance the accuracy of the Court’s decisions,it is free to permit such practices. But as Justice Liu’s observation suggests, both fairness and logic require that this approach apply to both parties. If, on the other hand, the Court believes that waiting until oral argument to inject issues into a case is unfair, it is free to impose consequences for such conduct-- again, so long as consequences apply to both parties. Whatthe majority has done here is mix and match: defendants may not raise new issuesat oral argument because that would be unfair, but the state can raise new arguments because this will enhancethe reliability of the appellate process. It is a classic case of “heads I win,tails you lose.” The majority wassensitive to the suggestion that the rule it was announcingtreated the state differently from the defendant. Thus, the majority noted two occasions where 23 this Court exercised its discretion to permit a criminal defendantto file “supplemental briefs raising new issues in capital appeals.” (People v. Grimes, supra, 2015 WL 47493 at * 20, citing People v. Howard (2010) 51 Cal.4th 15 and People v. Carrington (2009) 47 Cal.4th 145, 187.) The problem is this. The stark differences between Howard and Carrington on the one hand,andthis case on the other, do not resolve what Justice Liu called the “obvious unfaimess” of the majority’s rule, they actually confirm it. In Howard, defendantfiled a supplemental brief after the close of briefing but a full two years prior to oral argument, when a new lawyer took over his case. He did so only after seeking permission by filing a November 10, 2008 motion showing good cause for his request to raise additional issues after the close of briefing. (See People v. Howard, 8050583, Docket Entries.) Carrington wassimilar; four years before oral argument, defendantfiled a supplementalbrief after seeking permission by filing an October 7, 2005 motion showing good cause for his request. (See People v. Carrington, 5043628, Docket Entries.) Mr. Grimeshasnoissue with the rule -- applied in both Howard and Carrington -- which permits a party to present supplemental briefing on a showing of good cause. That is an evenhanded rule which can be fairly applied to both parties. And as the facts of both Howard and Carrington show,this rule can be applied in a manner which doesnotresult in patent unfairness (and surprise) at oral argument. 24 But that is not what happenedhere,nor is it even very close. In contrast to the defendants in Howard and Carrington, the state here did not make a showing of good cause, and seek to raise an additional issue, years before oral argument. Instead, the state simply raised the new issue in the middle oforal argument, with no prior request, and without the remotest suggestion it had good cause for doing so.® In short, neither Howard nor Carrington involved allowing an appellant to come to oral argument, raise a newissue in the middle of that argument, and then present post- argumentbriefing on that issue. But that is exactly what the majority permitted the state to do here. Justice Liu’s conclusion that the majority’s approach “cannot be squared with elemental notionsof fair play andthis court’s role as a neutral arbiter in the adversarial process” was correct. Rehearing is appropriate. C. The Majority’s Decision To Permit The State To Raise Harmless Error For The First Time At Oral Argument, With Full Post-Argument Briefing Followed By A Second Oral Argument, Imposes An Unworkable And Impractical Rule On The Intermediate Appellate Courts. The majority addressed the appropriate remedy whenthestate first raises harmless error at oral argument. The rule announcedby the majority requires post-argument briefing from both sides on the merits of the new issue and a second oral argument. As discussed below, even assuming this solution is practical for a court of limited jurisdiction 8 Indeed, as Justice Liu has noted, at the second oral argumentthestate itself affirmatively conceded that becauseofthe state’s inaction, the Court “shouldn’t be hearing from”the state on the merits of the harmless error issue. (People v. Grimes, supra, 2015 WL 47493at * 47.) 25 (like this one), it is entirely impractical when applied to appellate courts with general jurisdiction. In fiscal year 2013, this Court issued a total of 94 written opinions. (See Judicial Council, 2013 Court Statistics Report, Statewide Caseload Trends, 2002-2003 Through 2012-2013at p. xiv.) From a practical standpoint, the new rule embraced by the majority -- where the court permits the state to raise harmless error for the first time at oral argument, brief the matter after argument and argue the issue at a second oral argument-- may not be impractical in a court of limited jurisdiction which may have the resources to address the problem in this way. But the same cannotbe said in connection with the intermediate courts of this state who have general appellate jurisdiction. In fiscal year 2013, the intermediate appellate courts issued 9,429 written opinions on appeal. (/bid.) Of these, the appellate courts resolved 4,854 appeals in criminal cases. (/bid.) In addition, the appellate courts resolved 7,371 original proceedings as well as 3,426 additional appeals without a written opinion. (/bid.) The approach the majority has now charted -- permitting the state to raise issues for the first time at oral argument, obtain post-argumentbriefing and a second oral argument -- would require enormous resources when applied to the many, many thousands of cases decided by the intermediate appellate courts. To be sure, if the Court is going to permit new arguments to beraisedat oral argument, it should indeed permitfull briefing from both sides and an opportunity fororal argument. Setting aside for the moment the concerns expressed in Arguments I-A and B 26 above, this approachat least gives both parties a chance to address the issues. But the consequenceson the intermediate appellate courts of the unprecedentedalternative . solution adopted by the majority are grave: faced with resolving nearly 10,000 appeals, and 7,000 more original proceedings, the intermediate appellate courts simply do not have the time or resources to follow the majority’s new rule. Indeed, as the Court’s experience in dealing with the post-argumentbriefing in this single case should show-- involving four additional briefs and an additional oral argument -- efforts of the intermediate appellate courts to follow this new rule will result in vastly increased delay and a substantial expenditure ofjudicial resources. Rehearing is appropriate. 27 II. THE MAJORITY’S PREJUDICE ANALYSIS REGARDING THE EXCLUSION OF MORRIS’S STATEMENTS DOES NOT RECOGNIZE OR APPLY THE RIGOROUS STANDARD OF REVIEW APPLIED TO PENALTY PHASE AND FEDERAL CONSTITUTIONAL ERRORSIN CAPITAL CASES. Atthe guilt phase ofa trial, jurors make binary determinationsoffact, deciding (for example) whetheror not defendant committed a certain act. At the penalty phase of a capital trial, however, jurors are called upon to make a very different determination. The penalty phase decision requires jurors to makean essentially normative determination as to whether a defendant will live or die. Under California law, the jury’s role is to decide whether the aggravating evidence was“so substantial in comparison with the mitigating circumstancesthat it warrants death instead oflife without parole.” (People v. Boyde (1988) 46 Cal.3d 212, 254.) In making this determination, the jury considers all mitigating evidence presented by the defense, defined as any evidence which “might serve as a basis for a sentence less than death.” (Tennard v. Dretke (2004) 542 U.S. 274, 287.) The jury also considers aggravating evidence presented by the state, including the circumstancesofthe crime presented at the guilt phase. (See Penal Code section 190.3, subdivision (a).)’ Asdiscussed below,all parties agreed Mr. Grimes wasnotthe actual killer. Part of the defense case in mitigation was to present mitigating evidence and argumentas to Mr. Grimes’srole in the actual killing -- the defense theory was that Mr. Grimes was ° In this case, as in most, this was accomplished by instructing the penalty - phase jury that in deciding upon the proper punishment, it could consider “evidence which has been received during anypart of the trial of this case.” (41 RT 10801.) 28 simply a follower. The state disagreed, arguing that although Mr. Grimes wasnot the actual killer, death was proper because he wasthe leader and hadorderedthe killing. Asto this critical point of disagreement, the trial court excluded evidence as to Mr. Grimes’s lack of any role in the actual killing: statements from the actual killer that he acted alone, that Grimes wassurprised at and that he took no part in the killing and was not even in the room whenit occurred. Obviously, this evidence would have supported the defense theory; just as obviously, it would have undercut the state’s theory. The question on which the majority and dissenting justices disagreed was whetherthetrial court’s exclusion of this evidence was harmlessor prejudicial. Asalso discussed below,the state was not only required to prove that exclusion of this evidence was harmless, it was required to prove this beyond a reasonable doubt. Because the mitigating and aggravating evidence here was closely balanced, andin light of the nature of the evidence excluded, the state did not carry its burden. Rehearing is proper. A. The Penalty Phase Evidence And Arguments And The Evidence Excluded. In her dissenting opinion, Justice Werdegar described the “relative equipoise of evidence at the penalty phase” betweenthe state and the defense. The description was accurate. 29 In mitigation, the defense presented expert testimony showing current mental retardation, testing from Mr. Grimes’s teenageyears showing mental retardation, school records confirminghis intellectual disabilities at that time, evidence of organic brain damage and a difficult childhood. (37 RT 9803-9836, 9818-9836, 9858-9859, 9962- 9966, 9991; 38 RT 10028; 39 RT 10262, 10269-10272, 10434, 10462.) The defense also called numerous family membersto testify as to good deeds and kind acts Mr. Grimes had performedin his life, to confirm their love for Mr. Grimes and to show he had expressed remorsefor his role in the crimes. (38 RT 10037, 10067-10068, 10097, 10099-38100, 10165-10166, 10113-10115, 10122-10124; 39 RT 10454-10458.) In aggravation the state introduced evidenceof(1) prior felony convictions, (2) prior acts ofviolence and (3) victim impact. (36 RT 9824-9625, 9701, 9583-9648, 9753-9778, 9764-9765.) Justice Werdegar summarized the competing evidence as follows: “Although the prosecution presented defendant's prior criminal behavioras aggravating evidence, the defense met that evidence with mitigating evidence detailing defendant's dysfunctional childhood, mental problems, possible intellectual disability, brain damage and schizophrenia. Victim impact evidence from the surviving family was met with evidence from defendant's sister, mother, ex-wife and others proclaiming their love for defendant. Evidence suggesting defendant lacked remorse over Bone's murder was counterbalanced with defense evidence that defendant was the only one to have come to the aid of a prisoner being assaulted by others, and evidence describing a traumatic incident in which defendant's fiancée was killed in a traffic accident when defendant went to the aid ofher mother, who wasbeing harassed by the mother's ex-husband.” (People v. Grimes, supra, 2015 WL 47493at * 46.) Asboth Justice Werdegar and Justice Liu concluded, given that both parties recognized Mr. Grimes wasnotthe actual killer but simply an accomplice, the jury’s 30 balance of aggravating and mitigating evidence could very well have dependedin large part on the specific role Mr. Grimesplayedin the killing. (People v. Grimes, supra, 2015 WL 47493 at * 46 [Werdegar, J., concurring and dissenting] and * 62 [Liu,J., concurring and dissenting].) Although acknowledging that Mr. Grimes wasnotthe actual killer, the state argued aggravation nevertheless outweighed mitigation because Mr. Grimes had ordered the killing. As noted above, the prosecutor introduced evidence from jailhouse snitch Jonathan Howe that Mr. Grimes admitted to ordering the killing. (31 RT 8381.) In addition, according to Howe Mr. Grimessaid he “was standing there watching [the killing]... . [and Mr. Grimessaid] he enjoyed watching it.” (31 RT 8501.) And in closing argument the prosecutor repeatedly urged the jury to dismiss the defense theory that Mr. Grimes was merely a follower. (41 RT 10814, 10877, 10878.) The defense position that Mr. Grimes was merely a follower was supported by significant mitigating evidence presented through both expert and lay witnesses. As noted above,the defense presented substantial (and largely unrebutted) evidence showing Mr. Grimes’s severe intellectual deficits and mental retardation. In addition, defense counsel presented evidence from people who knew Mr. Grimesthroughouthis life as __ passive anda follower. (37 RT 9967, 9993; 38 RT 10032.) Counsel relied on this evidence to argue that “Gary is not a leader. He never wasa leader, never will be a leader.” (41 RT 10868.) This evidence showedthat Gary “was a followerhis entire life, and now youare being askedto believe that he was the leader on this awful incident that occurred out there. Gary has never been a leader. He’s not a leader. He’s been a follower all of his life.” (41 RT 10868-10869.) Defense counsel wasexplicit: “[W]hat 31 Jonathan Howehad tosay is not believable. Rememberhetestified that Gary ordered the killing. That’s not believable.” (41 RT 10866.) | The connection defense counsel made betweenthe evidenceofintellectual disability he had introduced andthe probability that Mr. Grimes took a leadership role in the crime has long been noted by the courts. As the United States Supreme Court concisely observed after reviewing the professionalliterature: “[T]here is abundant evidencethat [the mentally retarded] often act on impulse rather than pursuant to a premeditated plan, and that in group settings they arefollowers rather than leaders.” (Atkins v. Virginia (2002) 536 U.S. 304, 307, emphasis added.)!° The prosecutor responded to defense counsel’s argument about Mr. Grimes’srole in the offense. The prosecutor urged the jury to “look[] at Mr. Howe’s statement.” (41 RT 10879.) She told jurors that the defense had “never given you a reason to doubthis testimony.” (41 RT 10879.) 10 The evidence does indeed support this view. (See, e.g., Ellis & Luckasson, Mentally Retarded Criminal Defendants (1985) 53 Geo. Wash. L.Rev. 414, 429; Levy—Shiff, Kedem, & Sevillia, Ego Identity in Mentally Retarded Adolescents (1990) 94 Am.J. Mental Retardation 541, 547; Whitman, Self Regulation and Mental Retardation (1990) 94 Am. J. Mental Retardation 347, 360; Everington & Fulero, Competence to Confess: Measuring Understanding and Suggestibility ofDefendants with Mental Retardation (1999) 37 Mental Retardation 212, 212-213, 535.) This explains why many courts other than the Supreme Court have also recognized that people with severe intellectual deficits are morelikely to be followers than leaders. (See In re Campbell (5th Cir. 2014) 750 F.3d 523, 531-532; Byrd v. State (Ala. 2009) 78 So.3d 445, 457; State v. Hooks (Oh. 1988) 529 N.E.2d 429, 432. See generally United States v. McDade (11" Cir. 2010) 399 Fed. Appx. 520, 525.) 32 Of course, the trial court had excluded statements of the actual killer Morris to Misty Abbott that Grimes did not take part in the actualkilling and that upon seeingthe killing, he looked at Morris asifto say “what in hell are you doing.” (24 RT 6750, 6707.) The trial court also excluded Morris’s statements to Lawson that Grimes took nopart in the killing and wasin another part of the house whenthe killing occurred. (24 RT 6747, 6797.) A-4-3 majority held that exclusion of this evidence was harmless. B. The State Did Not Carry Its Burden Of Proving Beyond A Reasonable Doubt That Exclusion OfThe Evidence Was Harmless. Generally, federal constitutional errors require reversal unlessthe state -- as the beneficiary of the error -- proves beyond a reasonable doubt that the error is harmless. (Chapmanv. California (1967) 384 U.S. 18, 24.) Under this Court’s precedent, errors which occurat the penalty phase ofa capitaltrial -- even if they are errors of state law -- also require application of the Chapmantest and require the state to prove the errors harmless beyond a reasonable doubt. (People v. Abilez (2007) 41 Cal.4th 472, 525-526.) In applying the Chapmantest, the Supreme Court has long madeclear that “the whole record be reviewedin assessing the significance of the errors.” (Yates v. Evatt (1991) 500 U.S. 391, 409. Accord, e.g., Rose v. Clark (1986) 478 U.S. 570, 583; Delaware v. Van Arsdall (1986) 475 U.S. 673, 681; United States v. Hasting (1983) 461 U.S. 499, 509 (1983). This Court too has recognized that Chapman requires the reviewing court to consider the entire record, not just evidence supporting the conviction. (See People v. Mil (2012) 53 Cal.4th 400, 417-418; People v. Taylor (1982) 31 Cal.3d 488, 499-500; People v. Rodriguez (1986) 42 Cal.3d 1005, 1013.) The Court has also 33 long noted that in applying Chapman,reviewing courts must examine the prosecutor’s closing argumentto see if an alleged error impacted a point on which the prosecutor “and so presumably the jury”placed greatreliance. (People v. Powell (1967) 67 Cal.2d 32, 56-57 [prosecutor’s reliance on evidence in final argument reveals how important the prosecutor “and so presumablythe jury” considered the evidence].) The dissenting opinions followed these authorities. In finding the trial court’s error prejudicial as to the penalty phase, these opinions examined both the aggravating and mitigating evidence, as well as the prosecutor’s argument about Howe. (Peoplev. Grimes, supra, 2015 WL 47493at * 45, 46 [Werdegar,J., concurring and dissenting] and * 62 [Liu, J., concurring and dissenting].) Both opinions concludedthat the excluded evidence could reasonably have led one or more jurors to doubt Howe’s testimonyasto Grimes’s role in the killing. (People v. Grimes, supra, 2015 WL 47493at * 46 [Werdegar, J., concurring and dissenting] and * 62 [Liu, J., concurring and dissenting].) Asboth opinions noted, this was especially important here, where the prosecutor told the jurors that the defense had “never given you a reason to doubt [Howe’s] testimony.” (People v. Grimes, supra, 2015 WL 47493 at * 46 [Werdegar, J., concurring and dissenting] and * 62 [Liu, J., concurring and dissenting].) Equally important, the excluded evidence could also reasonably have led one or more jurors to credit the central defense theory that in light of Mr. Grimes’s intellectual deficits and the lay testimony describing him as a follower his whole life, he was unlikely to have ordered his cohorts to | do anything at all, much lesscommit murder. Considering both the mitigating and aggravating evidence, and the prosecutor’s argument, both Justices Werdegar and Liu concludedthat the state could not prove exclusion of this evidence was harmless. (People 34 v. Grimes, supra, 2015 WL 47493 at * 44-46 [Werdegar,J., concurring and dissenting] and * 63 [Liu, J., concurring and dissenting].) But the majority opinion took a different approach. The majority found the error ~ harmless as to the penalty phase without even referring to any of the mitigating evidence. (People v. Grimes, supra, 2015 WL 47493 at * 21-22.) As a consequence, of course, the majority did not discuss the impact ofthe trial court’s exclusion of evidence on (1) the defense’s main argument that Gary Grimes was not and had neverbeena leader or (2) the unrebutted mitigating evidence of his severe intellectual disability which provided strong support for this argument. (/bid.) Nor did the majority take any noteat all of the prosecutor’s explicit argument that the defense had “never given you a reason to doubt [Howe’s] testimony.” (bid.) Instead, the majority concluded that there was “no reasonable possibility that the admission of Morris’s statements would have changed the jury’s view ofHowe’s testimony.” (People v. Grimes, supra, 2015 WL 47493 at * 22.) This conclusion is hard to square with the evidence that was actually excluded. To be sure, it may be-true.-- as both Justice Liu and the majority recognized -- that the excluded evidence is not necessarily inconsistent with Howe’s testimony. (Peoplev. Grimes, supra, 2015 WL 47493 at * 21 [majority] and * 62 [Liu, J., concurring and dissenting].) Thus, evidence that Mr. Grimes wassurprised at the killing does not necessarily mean that he did not orderit: it is at least theoretically conceivable that a juror could find that he was surprised at the method ofkilling, not thefact of killing. Similarly, 35 evidence that Mr. Grimestook nopart in the killing, and was elsewhere in the houseat the time, does not necessarily mean he did not see some ofor enjoythe killing. Butin light of the beyond-a-reasonable-doubt burden placed on the state to prove the error harmless, the mere fact that the state can conceive of an interpretation of the excluded evidencethat is consistent with Howe’s damaging testimonyandthestate’s theory does not end the analysis. The fact of the matter, as both Justices Liu and Werdegarconcluded,is that a jury hearing the excluded evidence-- that Grimes was surprised at and took nopart in the killing and was not even in the room whenit occurred -- could reasonably have reached a view precisely contrary to Howe’stestimony and found that Grimes was notthe leader and had not watchedor enjoyed the killing. (People v. Grimes, supra, 2015 WL 47493 at * 46 [Werdegar, J., concurring and dissenting] and * 62 [Liu, J., concurring and dissenting].) A jury hearing this excluded evidence could just as reasonably have decided to credit the defense lay and expert testimony that Mr. Grimes wasnot a leader and never had been. In this situation the state has simply not carriedits burden. The problem with the majority’s failure to reference any mitigation in its prejudice analysis is evident in its conclusion that jurors would not have credited the excluded evidence because of statements Mr. Grimes madeto police that he saw some of Morris’s actions. (People v. Grimes, supra, 2015 WL 47493at * 22.) The fact of the matteris that there were also strong mitigating inferences to be drawn from Grimes’s statement to police, inferences the majority did not addressat all. For example, Grimestold police he did not know howthe victim died: he was in a back bedroom of the house, and when he 36 camebackinto the main room Morris had killed her. (28 CT 8305-8306.) Defense counselrelied heavily on this specific statement to support the defense.theory as to. Grimes’slimited role in the murder. (35 RT 9270-9274.) Based on this statement, defense counsel urged the jury to find Grimes mayhave heard Morriskill, but he did not stand and witnessit; “he was not present, he wasin the back doing the burglary... .” (35 RT 9274.) The excluded statement from Morris that Grimes was“in the house but took no part in the actual killing and [was] in someotherplace in the house[at the time of the killing]” parallels almost exactly this critical part ofMr. Grimes’s statement to police. As such, the excluded evidence would havedirectly corroborated this part of Grimes’s statementto police and just as directly supported the defense interpretation of this statement. In other words, precisely because the parties below had conflicting interpretations of Mr. Grimes’s statementto police, the trial court’s error in excluding evidence corroborating the defense interpretation was more prejudicial, not less. The majority’s approach to harmlesserror analysis -- its failure to examine the mitigation side of the scale -- cannot be reconciled with Chapman’s rigorous requirementthat both sides of the record be considered in any harmlesserror analysis. At the end ofthe day, establishing that the improper exclusion ofmitigation from a capital penalty phase is harmless is a heavy burden. It is supposed to be. If even a single juror had found that the excluded evidence supported the defense theory that Mr. Grimes wasnota leader, or undercut Howe’s testimony, a more favorable penalty phase verdict wasindeedlikely. (See People v. Soojian (2010) 190 Cal.App.4th 491, 521 [hung jury is 37 a more favorable verdict for purposes of assessing prejudice]; People v. Bowers (2001) 87 Cal.App.4th 722, 735-736 [same]; People v. Brown (1988) 46.Cal.3d 432, 471 n.1 [Broussard, J., concurring].) In light of all the aggravating and mitigating evidence presented, and the prosecutor’s argument, the state simply cannot establish beyond a reasonable doubt that upon hearing the excluded evidence regarding Mr. Grimes’sactual role in the offense, no juror could reasonably have changedtheir view as to whether death was appropriate. Because the state cannot meetthis heavy burden,rehearing is appropriate. 38 CONCLUSION Forall these reasons, rehearing is appropriate. DATED: jfra[is 39 Respectfully submitted, CLIFF GARDNER CATHERINE WHITE ML Gardner Rays for Defendant CERTIFICATE OF COMPLIANCE I certify that the accompanying Petition for Rehearing is double spaced, that a 13 point proportional font was used, and that there are 10702 words inthe brief. ooHs CIS CHEM4Mner CERTIFICATE OF SERVICE I, the undersigned, declare as follows: I am citizen of the United States, over the age of 18 years and not a party to the within action. Mybusiness addressis 1448 San Pablo Avenue, Berkeley, California 94702. I am not a party to this action. On January 15, 2015, I served the within PETITION FOR REHEARING upon the parties named below by depositing a true copy in a United States mailbox in Berkeley, California, in a sealed envelope, postage prepaid, and addressed as follows: Mr. Gary Grimes Rolland Papendick CDC: P-27200 905 Washington Street San Quentin State Prison RedBluff, California 96080 San Quentin, California 94974 (trial counsel) Sent via USPS mail & Electronic Service: California Appellate Project 101 Second Street Stephanie Mitchell Suite 600 Office ofthe Attorney General San Francisco, California 94105 P.O. Box 944255 ° Sacramento, California 94244-2550 Shasta County Superior Court 1500 Court Street Electronic Service: Redding, California 96001 Stephanie.Mitchell@doj.ca.gov Shasta County District Attorney 1525 Court Street 3" Floor Redding, California 96001 I declare under penalty of perjury that the foregoing is true. Executed on January 15, 2015, in Berkeley, California. Declarant