PEOPLE v. GRIMES (GARY LEE)Respondent’s Supplemental BriefCal.June 15, 2015 SUPREME COURT COPY du the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. GARY LEE GRIMES, Defendant and Appellant. CAPITAL CASE Case No. S076339 Shasta County Superior Court Case No. 95F7785 The Honorable Bradley L. Boeckman, Judge RESPONDENT’S SUPPLEMENTALBRIEF In) fi A MS DEL JELC J KAMALA D. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General MICHAEL P. FARRELL Senior Assistant Attorney General KENNETH N. SOKOLER Supervising Deputy Attorney General STEPHANIE A. MITCHELL Deputy Attorney General State Bar No. 197868 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 323-8044 Fax: (916) 324-2960 Email: Stephanie.Mitchell@doj.ca.gov Attorneysfor Respondent Tal PENALTY COPY TABLE OF CONTENTS Page IMCFOGUCTION ......csecceessecesceecscecssessscsesssessessesecsesaesssessseseseeesessesesecstessseseess ] Any Omission of a Harmless Error Argument in the Respondent’s Brief Does Not Result in the Application of a “Harmlessness-Plus” Standard for Reviewing Prejudice ..........cccsccessscesssssscsssssesseesssessesecssscseeeaes 1 CONCIUSION .0..eeseeseeseseeeeseeseesecsescsesssessseseeuessnecesesseasecsesesenseeesseeeeeseceesacenes 8 Certificate of Compliance ..0..... cc cscsssesessescessecessessssssssesseesscseseceseessssssessees 9 TABLE OF AUTHORITIES CASES Chapman v. California (1967) 386 U.S. 18 seccssssssssssssssseesesevcssseesessee ssecussssssssesen People v. Brown (1988) 46 Cal.3d 432eceececcssesecessessssssessesseseeneeseeeeees People v. Saunders (1993) 5 Cal4th 580...eeseseeeceetenessssssessssessecsseseeeeees People v. Watson (1956) 46 Cal.2d 818eeececscessesesessesssssesesesseesserseees United States v. Brooks Page eseensesenseees 1,2 sesseeesneeesesanens 2 sssevecseseesssaeeees2 sesesseeenassteee 1 (9th Cir. 2014) 772 F.3d 1161 oo... eeeeeccsescsesseretseecsseseesscssessssssens 1,2, 3,5 United States v. Giovannetti (7th Cir, 1991) 928 F.2d 225 oeeessssssescsessesceseeeenseeensesss United States v. Gonzalez-Flores (9th Cir. 2005) 418 F.3d 1093 ooo.sesessseseseesssseececeeeness United States v. Pryce (D.C. Cir. 1991) 938 F.2d 1343 oooeecsssseteesesseseseeereenes CONSTITUTIONAL PROVISIONS California Constitution Article VI, § 13 vicceccsscssssssssesssccsscsssscsscssecessersessesenteceees COURT RULES Federal Rules of Criminal Procedure Rule 52(a) 0... eeeeseeesesennecetenteteseseseseenesessnesseeeaenseseeseeneeesses OTHER AUTHORITIES Black’s Law Dictionary (Abridged 6th Ed. 1991)... ii ssaseneenees 3,4, 5 seeeeseseens 3,4, 7 seeevennenes 3, 6, 7 seeseeeenees 1, 4, 6 sesseeeeaseneees 4,5 sevsuseeeeeseeseaaees 6 INTRODUCTION This Court affirmed appellant’s conviction for first degree murder and his sentence of death on January 5, 2015. On March 1 1, 2015, this Court granted appellant’s petition for rehearing. In preparing for reargument, this Court has provided the parties with the opportunity to “submit supplemental briefing in reliance upon new authorities or issues which arose subsequent to the completed briefing in this case... .” This supplemental brief addresses the Ninth Circuit’s decision in United States v. Brooks (9th Cir. 2014) 772 F.3d 1161 (Brooks), which was decided after the completed briefing in this case. Brooks addresses the consequencesof the government’s waiverofharmlesserror in federal court, and it was discussed in Justice Liu’s concurring and dissenting opinion in this case and appellant’s petition for rehearing. For the reasons that follow, and the reasons discussed in respondent’s previousbriefing in this case, respondent respectfully asks that this Court affirm appellant’s convictions and death sentence.. | ANY OMISSION OF A HARMLESS ERROR ARGUMENTIN THE RESPONDENT’S BRIEF DOES NOT RESULT IN THE APPLICATION OF A “HARMLESSNESS-PLUS” STANDARD FOR REVIEWING PREJUDICE Despite any omission by respondentin its brief, this Court must independently review thetrial record to determine whetherthe error complained of “resulted in a miscarriage ofjustice” before reversing a judgment. (Cal. Const., art. VI, § 13.) For nonconstitutional errors, the “miscarriage ofjustice” standard is explained in People v. Watson (1956) 46 Cal.2d 818, which asksifit is reasonably probable that a result more favorable to the defendant would have been reached absentthe error. (Id.at p. 836.) For federal constitutional errors, the standard is set forth in Chapmanv. California (1967) 386 U.S. 18, which asks whetherthe error complained of is harmless beyond a reasonable doubt. (/d. at p. 24.) For errors occurring during the penalty phase ofa capitaltrial, the harmlessness test is effectively the same as the Chapman standard ofreview. (Peoplev. Brown (1988) 46 Cal.3d 432, 448.) Respondent has not found any case in which a California court has applied a more stringent standard of harmless error review when the respondent’s brief omits a harmless error argument, andit appears appellant has neither. Instead, appellant relies on cases from the federal Courts of Appeals and out-of-state cases for this proposition. (See Pet. R’hrng at 16- 17.) . Forinstance, the Ninth Circuit in Brooks applied a harmlessness-plus standard of review whenit sua sponte undertook a harmless error analysis after it found that the government had waivedthe issue by notingin its brief, but not arguing, harmless error. (Brooks, supra, 772 F.3dat pp. 1171-1173.)' In doing so, the Ninth Circuit observedthat it had “discretion to consider harmlessness sua sponte in extraordinary cases.” (/d.at p. 1171.) But whether to exercise that discretion depended onthree factors: “(1) ‘the length and complexity of the record,’ (2) ‘whether the harmlessnessof anerror is certain or debatable,’ and (3)‘the futility and costliness of reversal and furtherlitigation.’” (/bid., quoting United States v. Gonzalez-Flores (9th Cir. 2005) 418 F.3d 1093, 1101 (Gonzalez- Flores).) For the court, “‘[t]he second factor—the court’s certainty as to the harmlessnessofthe error—is of particular importance,’ and sua sponte ' Respondentuses the term “waived”as opposed to “forfeited” if used by the court deciding the case. As this Court has recognized, _ “‘Twlaiver is different from forfeiture. Whereas forfeiture is the failure to makethe timely assertion of a right, waiver is the “intentional relinquishmentor abandonmentof a knownright.” [Citations.]’ [Citation.]” (People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6.) recognition ‘is appropriate on/y where the harmlessnessoftheerror is not 999 reasonably debatable.” (Brooks, at p. 1171, quoting Gonzalez-Flores,at p. 1101 (originalitalics).) Thus, where the claim involves federal constitutional error, a court “exercising [its] discretion to find a constitutional error harmless under Gonzalez-Flores requires a double level of certainty: [it] must be convinced that the error was ‘harmless beyond a reasonable doubt’ andthat ‘satisfaction ofthat standard is beyond serious debate.’” (Brooks, supra, 772 F.3d at p. 1171, quoting UnitedStates v. Pryce (D.C. Cir. 1991) 938 F.2d 1343, 1347-1350 (opn. of Williams, J., announcing the judgment) (Pryce).”) In Gonzalez-Flores, the Ninth Circuit found that the government had waived harmless error by mentioning that a harmlesserror analysis applied, but making no further argument on the point. (Gonzalez-Flores, supra, 418 F.3d at p. 1100 & fn. 4.) But the court also found “that nointerestis served—andsubstantial time and resources are wasted—byreversalin those unusual cases in which the harmlessnessofany erroris clear beyond serious debate and further proceedingsarecertain to replicate the original result.” (/d. at p. 1100.) In making this determination, the Ninth Circuit found “helpful” the three factors discussed above, whichoriginated from the Seventh Circuit’s decision in United States v. Giovannetti (7th Cir. > The Pryce court was fragmented on the effect of the government’s failure to argue harmlesserrorin its brief. Judge Williams, announcing the _ judgmentofthe court, would “deem errors ‘harmless’ only where satisfaction of that standard is beyondserious debate.” (Pryce, 938 F.2d at p. 1348 (opn.of Williams. J., announcingthe judgment).) Judge Randolph, in a concurring opinion, found harmless error unwaivable because “the government’slitigating position did notrelieve [the court] of[its] duty to disregard harmlesserrors.” (/d. at p. 1351 (conc. opn. of Randolph,J.).) And Judge Silberman, in a dissenting opinion, would not consider the harmlessnessofthe error in the absence of briefing by the government. (Jd. at pp. 1352-1355 (dis. opn. of Silberman,J.).) 1991) 928 F.2d 225 (Giovannetti). (Gonzalez-Flores, supra, at p. 1101.) And,as discussed above, it found the “second factor—the court’s certainty as to the harmlessnessofthe error---[] of particular importance.” (/bid.) The court reasoned that “{i]f the harmlessness oftheerroris at all debatable, prudence andfairness to the defendant counsel against deeming that error harmless without the benefit of the parties’ debate” because “where the case is at all close, defense counsel’s lack of opportunity to answerpotential harmless error arguments maylead the court to miss an angle that would have showntheerror to have been prejudicial.’” (/bid., quoting Pryce, supra, 938 F.2d at p. 1347 (opn. of Williams, J announcing the judgment).) In Giovannetti, the Seventh Circuit disagreed with the government that Rule 52(a) of the Federal Rules of Criminal Procedure prohibited the court from finding harmless error waivable. (928 F.2d at p. 226.) Rule 52(a) states: “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”” The Seventh Circuit acknowledged that it “cannot reverse a conviction because of a harmless error,” but that did not meanthat “even if the government does not argue harmlesserror, [it] must search the record—without any help from the parties—to determinethat theerrors[it] find[s] are prejudicial, before[it] can reverse.” (Jbid.) The court observed that to find harmless error nonwaivable might require it to overrule someofits precedent that “declined to consider the question of harmlessness because the government 3 Comparearticle VI, section 13 of the California Constitution, which provides, in pertinent part: “No judgmentshall be set aside . . . in any cause, on the ground . . . of the improper admissionor rejection of evidence, . . . unless, after an examination ofthe entire cause, including the evidence, the court shall be of the opinion that the error complained ofhas resulted in a miscarriage ofjustice.” did notraiseit[.}” (/bid.) Having found that the government could waive harmlesserror, the Seventh Circuit also found that it had discretion to overlook such a waiver, and the governmentcould even,“by way of petitioning for rehearing, invite [the court] to consider the point providedit is not in effect filing a new brief, this time on the issue of harmlessness.” (Id. at pp. 226-227.) In deciding whetherit should exerciseits “discretion to overlook a failure to argue harmlessness, and in deciding whetherto exercise that discretion,” Giovannetti set forth the now-familiarthree considerations: “the length and complexity of the record, whether the harmlessness of the error or errors found is certain or debatable, and whethera reversal will result in protracted, costly, and ultimately futile proceedingsin the district court.” (Giovannetti, supra, 928 F.2d at p. 227.) In Giovannetti, the court declined to relieve the governmentofits failure to raise harmlesserrorinits brief because “[t]he certainty of harmlessness does not appear with such clarity from an unguided search ofthe record that[it] should raise the issue on [its] own motion.” (/bid.) | . The rule from Brooks, and the casesit relies upon, should not be adopted by this Court for three reasons. | First, the federal circuit courts apparently have no sua sponte duty to review the recordfor prejudice despite an omission of a harmless error | argumentin the government’s brief. For sound policy reasons, however, some federal courts have adopted factors to consider when deciding | whether to conduct a harmlesserror analysis sua sponte. Theresult is a type of harmlessness-plus inquiry where, for federal constitutional errors, _the court “must be convinced that the error was ‘harmless beyond a reasonable doubt’ and that ‘satisfaction of that standard is beyond serious debate.’” (Brooks, supra, 772 F.3d at p. 1171, quoting Pryce, supra, 938 F.2d at p. 1348 (opn. of Williams, J., announcing the judgment).) Butunlike the federal rules, the California Constitution requires the reviewing court to review thetrial record sua sponte before reversing a judgment. (Cal. Const., art. VI, § 13.) Therefore, there is no need for a threshold inquiry as to the closeness of the harmless error question before proceedingto the harmlesserror analysis itself, because a California reviewing court — unlike a federal court — does not have the option whether or not to consider an error’s harmlessness. The California Constitution requires that it conduct a harmlessness analysis before reversing a judgment. Second, to “forfeit” is “[t]o lose, or lose the right to, by someerror, fault, offense, or crime.” (Black’s Law Dictionary (Abridged 6th Ed. 1991), p. 449.) The right that is lost when respondent omits a harmless error argumentin a brief, whether intentionally or through unfortunate inadvertence, is respondent’s opportunity to assist the reviewing court in determining the harmlessnessofthe error. It is not the loss of the appropriate standard of harmless error review for non-constitutional or constitutional error. As stated by Judge Randolph in Pryce: We would not say that because a party failed to invoke a controlling precedent the party has waivedit and the court must therefore disregard stare decisis in reaching its decision. Neither would wereview the evidence supporting a conviction de novo just because the government neglected to mention the standard governing review .... Nor would we automatically reverse a criminal conviction if the government confessed error on appeal. (Pryce, supra, 283 F.3d at p. 1351 (conc. opn. of Randolph, J.).). And neither should a reviewing court heighten the standard for harmless error review by adding a secondlayerto the inquiry andrequire the error to be “harmless beyond serious debate” simply because respondentfailed to argue harmlessnessin its brief. Third, both respondent and appellant had the opportunity to brief harmlesserror after it was requested by this Court. In that way, appellant wasable to respond to respondent’s harmless error argument and make additional arguments of his own. Thus, the fairness concerns underlying the federal courts’ decisions on whether to address harmlesserror sua sponte are simply not present in this case. (See Gonzalez-Flores, supra, 418 F.3d at p. 1101; Pryce, supra, 283 F.3d at p. 1347 (opn. of Williams, J., announcing the judgment).) The People have a strong adversarial incentive to include a harmless error argumentin its brief withoutthe threat of forfeiture and the application of a harmlessness-plus standard for reviewing constitutional and nonconstitutional errors for prejudice. This Court should decline appellant’s invitation to adopt the federal standard ofpunishing the People for the occasional omission, whether intentional or inadvertent, of a harmless error argumentinits brief. CONCLUSION For the reasonsstated here and in the respondent’s brief and supplemental briefs filed in this case, respondent respectfully urges this Court to affirm appellant’s convictions and sentence of death. Dated: June 12, 2015 SA1999XS0001 32097985.doc Respectfully submitted, KAMALAD.HARRIS Attorney General of California GERALDA. ENGLER Chief Assistant Attorney General MICHAELP. FARRELL Senior Assistant Attorney General KENNETHN. SOKOLER Supervising Deputy Attorney General STEPHANIE A. MITCHELL Deputy Attorney General Attorneysfor Respondent CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S SUPPLEMENTAL BRIEFuses a 13 point Times New Roman font and contains 1,819 words. Dated: June 12, 2015 KAMALAD. HARRIS Attorney General of California STEPHANIE A. MITCHELL Deputy Attorney General Attorneys for Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Grimes No.: S$076339 I declare: I am employedin the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the businesspractice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On June 12, 2015, I served the attached: RESPONDENT’S SUPPLEMENTAL BRIEF by placing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 13001 Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows: Cliff Gardner, Attorney at Law Clerk of the Superior Court - 1448 San Pablo Avenue Shasta County Superior Court Berkeley,CA 94702 1500 Court Street, Room 219 (Attorney for Appellant Grimes- 2 copies) Redding, CA 96001 — California Appellate Project (SF) Honorable Stephen Carlton 101 Second Street, Suite 600 Shasta County District Attorney San Francisco, CA 94105-3672 1355 West Street Redding, CA 96001 Barry P. Helft Chief Deputy State Public Defender Office of the State Public Defender 1111 Broadway, Suite 1000 Oakland, CA 94607 I declare under penalty of perjury under the lawsofthe State of California the foregoingis true and correct and that this declaration was executed on June 12, 2015, at Sacramento, California. Declarant SA1999XS0001 32106507.doc
