PEOPLE v. GRIMES

Respondent’s Response to Amicus Curiae Brief

Cal.July 30, 2014

SUPREME COURT COPY § Ol" KAMALA D. HARRIS State ofCalifornia Attorney General DEPARTMENTOFJUSTICE 1300 I STREET, SUITE 125 P.O. BOX 944255 SACRAMENTO,CA 94244-2550 Public: (916) 445-9555 Telephone: (916) 323-8044 Facsimile: (916) 324-2960 E-Mail: Stephanie.Mitchel}@doj.ca.gov July 29, 2014 SUPREME COURT FILED. Supreme Court of the State of California San Francisco Branch 350 McAllister Street JUL 3°0 2014 San Francisco, CA 94102-4797 Frank A. McGuire Clerk RE: People v. Grimes Deputy Case No. 8076339 Dear Honorable Chief Justice Tani Cantil-Sakauye and Honorable Associate Justices: The Office of the State Public Defender (OSPD), as amicus curiae “in support of neither party,” asks this Court to consider “the consequencesofthe forfeiture” of a harmlesserror argumentin respondent’s initial brief. OSPDclaimsthat if reviewing courts are free toaddress whetheran error is harmless without the advantageofbriefing by respondenton the issue, “great damage will be doneto the appellate system as a whole.” (OSPDat p. 2.) This is because“‘it is not the properrole of a reviewing court to raise independently, and subsequently rule upon, the prejudice component of a defendant’s claim whenthestate has not placed that aspect of the claim into question.” (Jbid.) According to OSPD,this construct would place the court in the role of an advocate instead of a neutral arbiter and violate the separation of powers doctrine. (See id. at pp. 2-3, 5-6.y! Respondent submits that the state has an enormousincentive to include harmless error arguments in the respondent’s briefs. On those limited occasions when an inadvertent failure ' Reviewing courts have rejected explicit concessionsoferrorby thestate (see,e.g., People v. Turner (2002) 96 Cal.App.4th 1409, 1415; People v. Thompson (1990) 221 Cal.App.3d 923, 934; People v. Alvarado (1982) 133 Cal.App.3d 1003, 1021), and may decide issues not raised by the parties (see, e.g., People v. Hill (1992) 3 Cal.4th 959, 1017 fn. 1 (Mosk, J. (conc. opn.), overruled on anotherpointin Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Gordon (1990) 50 Cal.3d 1223, 1250) without violating the separation of powers doctrine and causing damageto the appellate system. DEAT PENALTY Supreme Court ofthe State of California July 29, 2014 Page 2 might occur, “great damage” will not be done should a reviewing court occasionally engage ina sua sponte analysis of prejudice.” In any event, OSPD’s argumentis based on a faulty premise. OSPD acknowledgesthat respondent“contest[ed] the specific assertion of error” and sought “to support the judgmentas a whole” in the respondent’s brief. (OSPD letter at p. 4.) But OSPD claims, “When the -* Conspicuousbyits absence in OSPD’s briefis any reference to the substantial importance ofthe harmlesserror doctrine to the judicial system as a whole: Thereversal of a conviction entails substantial social costs: it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeata trial that has already once taken place; victims may be askedto relive their disturbing experiences. See Morris v. Slappy, 461 U.S. 1, 14[ ] (1983). The “[p]assage oftime, erosion of memory, and dispersion of witnesses may renderretrial difficult, even impossible.” Engle v. Isaac, 456 U.S. 107, 127-128[ ] (1982). Thus, while reversal “may, in theory, entitle the defendant onlyto retrial, in practice it may reward the accused with complete freedom from prosecution,” id., at 128[ ], and thereby “cost society the right to punish admitted offenders.” /d., at 127[ ]. Even ifa defendant is convicted in a secondtrial, the intervening delay may compromisesociety’s “interest in the prompt administration of justice,” United States v. Hasting, supra, 461 U.S., at 509[ ], and impede accomplishmentofthe objectives of deterrence and rehabilitation. These societal costs of reversal and retrial are an acceptable and often necessary consequence when an errorin the first proceeding has deprived a defendantof a fair determination of the issue of guilt or innocence. Butthe balanceofinterest tips decidedly the other way when an errorhas hadno effect on the outcomeofthetrial. (United States v. Mechanik (1986) 475 U.S. 66, 72.) “The harmless-error doctrine recognizesthe principle that the central purpose of a criminaltrial is to decide the factual question of the defendant’s guilt or innocence, United States v. Noble, 422 U.S. 225, 230[ ] (1975), and promotes public respect for the criminal process by focusing on the underlying fairnessofthe trial rather than on the virtually inevitable presence of immaterial error. Cf. R. Traynor, The Riddle of Harmless Error 50 (1970) (‘Reversal for error, regardless ofits effect on the judgment, encourageslitigants to abuse the judicial process and bestirs the public to ridicule it.’).” (Delaware v. Van Arsdall (1986) 475 U.S. 673,681.) Supreme Court of the State of California July 29, 2014 Page 3 respondentfully addresses a claim but does not argue prejudice, the reasonable inferenceis that there has been a conscious decision that prejudice cannot be refuted.” (OSPDat p. 4.) It is true that respondent omitted a separately captioned harmlesserror argumentin the respondent’s brief, but the brief does include reasons whyany errorin thetrial court’s ruling excluding Morris’s additional hearsay statements to Misty Abbott and Albert Lawson was harmless. (RB 77.) Read as a whole,there can be no question that respondentdid not concede in the respondent’sbriefthatifthe trial court erred in excluding Morris’s hearsay statements reversal was required. But even assuming, for argument’s sake, that the respondent’sbrief failed toaddress prejudice, silence is not an “implicit concession” of prejudice. (OSPDatp.5.) OSPD’sreliance on People v. Johnson (1980) 26 Cal.3d 557 for support is misplaced. The issue before this Court in Johnson was whethera violation of the defendant’s statutory right to a speedytrial required reversalofhis conviction. (/d. at p. 574.) A defendantalleging a violation of his statutory right to a speedy trial post-conviction “must prove not only unjustified delay in bringinghiscasetotrial but also prejudice flowing from that delay.” (/bid.) The defendant in Johnson did not addressthe prejudice componentofhis claim. Based onits absence, the plurality observedthat the “defendantby his silence on this issue essentially concedes the absence of prejudice, urging that we overrule [prior case law] and reverse his conviction without proof of prejudice.” (/bid.) The defendantin Johnson wasnotentirely “silent.” Instead, the defendant ignored the prejudice componentofthe claim and urged the Court to adopt a new rule that wouldnot require a showingofprejudice. Given the manner in which the issue was argued,the plurality reasonably found that the defendant “essentially concede[d] the absence of prejudice.” (People v. Johnson, 26 Cal.3d at p. 574.) Despite the concession, the plurality went on to address prejudice and foundthat the “record showsnoprejudice to defendant arising from the delay.” (Ibid.) In requiring a showingofprejudice post-conviction, the plurality explained, “[O]nce a defendant has beentried and convicted, the state Constitution in article VI, section 13, forbids reversal for nonprejudicial error. When a defendanthas received a fair trial, we believe, neither the public interest nor the scope ofarticle VI, section 13, call for reversal of that conviction because of nonprejudicial error in the scheduling of that trial.” (/d. at p. 575.) The harsh rule advocated by OSPDis neither supported by Johnson norconsistent with article VI, section 13 of the California Constitution. In fact, OSPD’sposition is directly contrary to this Court’s decision in People v. Hill, supra, 3 Cal.4th 959. In Hill, the defendant argued that respondent had “conceded” Aranda- Bruton error because the issue was not addressed in the respondent’s brief. (/d. at 995, fn. 3.) This Court rejected “this novel contention” for three reasons, two of which are implicated here. First, the defendantforfeited the issue on appealby failing to raise it in the trial court. (/bid.) Second, respondent did “fully respond”to the defendant’s “primary argument”against the admission of the extrajudicial statements, and the defendant did not contend otherwise. (J/bid.) Third, this Court “decline[d] to find a waiver based on nothing more than respondent’s failure to respond”to the defendant’s Aranda-Bruton argument, which itself wasraisedfor the first time Supreme Court of the State of California July 29, 2014 Page 4 on appeal. (Jbid.) Respondent acknowledgesthatthe first reason identified by Hill is not present here, but that should not prevent this Court from applying Hill’s reasoning to this case, Respondentfully addressed appellant’s claim that the trial court abusedits discretion by excluding Morris’s additional hearsay statements to Abbott and Lawson, and appellant does not contend otherwise. Respondent did:state reasons why anyerrorin the trial court’s ruling should be found harmless (see RB 77), but even assuming, arguendo,that this Court finds respondent’s prejudice argumentinsufficient, that inadequacy is not a concession. Hill observedthat “{a] failure to respond to an opponent’s argument may be unwise as a tactical matter, but such failure does not warrantthe inflexible rule proposed by defendant.” (People v. Hill, supra, 3 Cal.4th at p. 995, fn. 3.) Such a harsh rule “would require a party to respond to his opponent’s every argument, subargument, andallegation, no matter how meritless or briefly made.” (Jbid.) In rejecting the defendant’s request to find an implied concession,Hill “disapprove[d] of the brief and unsupported suggestion to the contrary in People v. Adams (1983) 143 Cal.App.3d 970, 992.” (Ibid.) In People v. Adams, supra, 143 Cal.App.3d 970, the appellate court foundthat respondent’s silence on prejudice in the respondent’s brief “must be viewed as a concessionthat if error occurred,reversal is required.” (/d. at p. 992.) This is the same rule proposed by OSPD and explicitly disapproved of in Hill. Silence in a respondent’s brief on the issue of prejudice is not an implied concessionthatifthere was error, reversal is required. Respondenthas already addressed the effect any omission in the respondent’s brief of a prejudice argument has onstate and federal harmlesserror review and will not repeat those arguments here. Suffice it to say, OSPD’s proposed approach for reviewing harmlesserrorin the absenceof any prejudice argument madebythe stateis not only wrong but unworkable. OSPD proposesthat the reviewing court “makeits prejudice determination by assessing whether the record supports the arguments defendant makes and whether defendant’s arguments demonstrate a reasonable probability that he would have obtained a more favorable verdict,” but the reviewing court “should not go further and posit other theories about why the error was harmless ....” (OSPDat p. 8.) This makes no sense. A reviewing court cannot evaluate the entire record to determine prejudice and, at the same time, not consider evidence relevant to a prejudice determination, for example, the strength of a witness’s testimonyinrelation to other evidence contained in the record. Respondenthas not thought is necessary to address every argument, subargument, and allegation made by OSPDinits amicus letter. Respondent’s decisionin that regard is not a concession that those arguments, subarguments and allegations have merit. In closing, OSPDstates that it “does not believe that criminal appeals should be determined by gamesmanshipor in any. mannerother than on the merits of the claims being litigated... .” (OSPD at p. 8.) But that is exactly what OSPD advocates. Criminal convictions are reversed based onstructural errors that affect the entire framework ofthe trial andtrial errors Supreme Court of the State of California July 29, 2014 Page 5 that prejudice the defendant. Presumptively valid criminal convictions are not reversed based on an unwise or inadvertent omission of a harmless error argumentby thestate. Dated: July 29, 2014 Respectfully submitted, KAMALAD. HARRIS Attorney General of California — MICHAELP, FARRELL Senior Assistant Attorney General WARD A. CAMPBELL Supervising Deputy Attorney General SPPHANIE A. MITCHELL Deputy Attorney General Attorneysfor Respondent S$A1999XS0001 32048505.doc DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Grimes No.: $076339 J declare: 1 am employedin the Office ofthe 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 business practice at the Office of the Attorney Generalfor collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed 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. OnJuly 29, 2014, I served the attached ANSWER TO AMICUS LETTERBRIEFbyplacing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 1300 I 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 SecondStreet, 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 ofperjury underthe laws of the State of California the foregoingis true and correct and that this declaration was executed on July 29, 2014, at Sacramento, California. redhe Declarant SA1999XS0001 32048537.doc