LEWIS

Non-Title Respondent, California Department of Corrections and Rehabilitation, Supplemental Brief

Cal.July 20, 2015

SUPREME COURT COPY Cor In the Supreme Court of the State of California In re ROBERT LEWIS, JR., Case No. S117235 On Habeas Corpus CAPITAL CASE Los Angeles County Superior Court, Case No. A027897 The Honorable Robert J. Perry, Judge SUPREME COURT FILEH RESPONDENT’S SUPPLEMENTALBRIEF-ON— JUL 9 0 -FHE-MERITS--— . 2015 Frank A : McGuire Clerk KAMALA D.HARRIS Deputy Attomey General of California GERALD A. ENGLER Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General JAIME L. FUSTER Deputy Attorney General MARGARET E, MAXWELL Supervising Deputy Attorney General State Bar No. 169830 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 . Telephone: (213) 897-2282 Fax: (213) 897-6496 Email: MargaretMaxwell@doj.ca.gov DocketingLAAWT@doj.ca.gov Attorneysfor Respondent DEATH PENALTY TABLE OF CONTENTS Page ATQUMENL0. eecceccceccescecceseeseeseecsceecaceeecaecaceetseesesensveneeeaeeesveeeeeneesecaeeaeeens 1 I. In defining “mental retardation” (renamed “intellectual disability”) in Penal Code Section 1376, the Legislature adopted the criteria for evaluating adaptive behavior set forth in Atkins v. Virginia (2002) 536 U.S. 304 ie ecccccescceseceneesceeecsesneceseeecseeesseetseeseaaeessiaueeerseeseaeeeates 1 II. Consideration of measurementdeficiencies inherent in the IQ testing instruments due to norming practices and “socioeconomicfactors” explaining the score distributions does not constitute invidious racial GUSCYIMINATION.......... cc eee cecceeeecneeeeeereteceeeseeeneneeeeeeenaeerensetenes 6 COMCIUSION .......ccccccecccseeeeecseateceeeecesnareeeecensneecenaneesncereaaaeeeeeneeeuaaeeessaaesenaas 13 TABLE OF AUTHORITIES Page CASES Atkins v. Virginia (2002) 536 U.S. 304 ooo. ceeceseseeseeeeseeeteerteeeaeesseeneessaeeaeen 1,2, 3,4, 5 Brumfield v. Cain (2015) 135 S.Ct. 2269... cccecceeeseeneeeeeeteeeeerees deeeeseeeeeeteeteeeeneeneeneeeaeens 4 Hall v. Florida (2014) 134 S.Ct. 1986...cececceseeecetceeeeeneetsaeersneeenaaees 1,2, 3,4, 5, 10 In re Champion (2014) 58 Cal.4th 965 oo. ceeceeceeeneeceneesntesssensaeeseeessaeeaesssaesaaeens 6,7 In re Hawthorne (2005) 35 Cal.4th 40.0.eeeeeneeeseeeneesneeeneceneessasesseceneeesneeseeeneeens 2 Larry P. v. Riles (N.D. Cal. 1979) 495 F.Supp. 926 oo... ee eecceessseeseeeesseceeseseeesseeneeseates 8 STATUTES Penal Code, § 1376... ecccccesecsteeesececceseceeceeeecesneeeecaeeneeseesaeeaeseeneeeeesasesseesasensaeees 1, 2,13 il Pursuant to this Court’s order filed May 19, 2015, respondent submits this supplemental brief addressing the two arguments presented in petitioner’s supplementalbrief filed May 14, 2015. ARGUMENT I. IN DEFINING “MENTAL RETARDATION” (RENAMED “INTELLECTUAL DISABILITY”) IN PENAL CODE SECTION 1376, THE LEGISLATURE ADOPTED THE CRITERIA FOR | EVALUATING ADAPTIVE BEHAVIOR SET FORTHIN ATKINSV. VIRGINIA (2002) 536 U.S. 304 Petitioner contends the May 2014 decision in Hall v. Florida (2014) 134 S.Ct. 1986, refutes respondent’s assertion that the “definitions” of _ adaptive behavior impairmentrecited in footnote 3 ofAtkins v. Virginia (2002) 536 U.S. 304 were adopted by the Legislature in enacting Penal Codesection 1376 because the high court referenced the more recent professional manuals in assessing the constitutionality of Florida’s cutoff score requirement for generalintellectual functioning. (Pet. Supp. Brf. at pp. 3-5.) As explained below, Hall does not answer whether section 1376 incorporates the diagnostic definitions for evaluating adaptive behaviorset forth in Atkins footnote 3 or whether section 1376 instead permits (or mandates) use of the changing diagnostic terminology of the medical community in completing the assessment of adaptive behavior impairment required by section 1376. Respondentpreviously argued that the Referee erred selecting the criteria for assessing “adaptive behavior”set forth in the eleventh edition of the American Association for Intellectual and Developmental Disabilities (“AAIDD”) Manualpublished in 2010 (the “Green Book”) rather than the criteria set forth in footnote 3 ofAtkins that were endorsed by our ' All further statutory references will be to the Penal Code, unless otherwisestated. Legislature in its legislative history enacting section 1376. (See Resp. Merits Brf. at pp. 96-99; Resp. Reply Brf. at pp. 28-30; seeReport at pp. 4- 6, fn. 3 & p. 21, fn. 32.) As relevant to these proceedings, the California statute defines “intellectual disability” as “the condition of significantly subaverage generalintellectual function existing concurrently with deficits in adaptive behavior and manifested before 18 years of age.” (§ 1376, subd.(a).) The legislative history for section 1376 specifically references the clinical “definitions” of mental retardation recited in Atkins v. Virginia, supra, 536 U.S. at page 309, footnote 3. (In re Hawthorne (2005) 35 Cal.4th 40, 47.) The Atkins footnote recited the criteria / definitions of “adaptive behavior” set forth in the American Psychiatric Association’s Diagnostic and Statistical Manual published in 2000 (the DSM-IV) and the 1992 manual published by the American Association on Mental Retardation (“AAMR”— now known as the American Association for Intellectual and Developmental Disabilities (“AAIDD”’)). In Hall v. Florida, supra, 134 S.Ct. 1986, the United States Supreme Court examined Florida’s implementation of the Atkins rule—specifically Florida’s statutory requirement that “‘significantly subaverage general intellectual function” must be demonstrated by an IQ test score of 70 or below (the defendant’s lowest score admitted into evidence was 71) and the Florida Supreme Court’s determination that the statutory definition was a rigid one that did not include the standard error of measurement. (Jd. at pp. 1994-1995.) In doing so, the Supreme Court observed there was consensus in the medical community that the standard error of measurement (“SEM”) was a “statistical fact”; the medical community that designed, administered and interpreted IQ tests had long agreed that test scores should be read as a range rather than a fixed score. (/d. at p. 1995.) The Supreme Court stated, “The clinical definitions of intellectual disability, which take into account that IQ scores represent a range, not a fixed number, were a fundamental premise ofAtkins.” (Id. at p. 1999.) In Atkins, the Supreme Court hadstated that “[t]he statutory definitions of mental retardation are not identical, but generally conform to the clinical definitions set forth in fn. 3.” (Atkins, supra, 536 U.S.at p. 317, fn. 22.) However, the Supreme Court “‘le[ft] to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.’ [Citation.]” (Ud. at p. 317.) In Hall, the Supreme Court observedthat the States do not have complete autonomy to define intellectual disability because such power would render the decision in Atkins a nullity. (Hall, supra, 134 S.Ct. at p. 1999.) Insteadit stated, “This Court reads Atkins to provide substantial guidance on the definition of intellectual disability.” ([bid.) Throughoutits opinion, the Supreme Court in Hall referenced the 2012 AAIDD Manual(11th edition) and the DSM-V (American Psychiatric Association, Diagnostic and Statistical Manual (5th Ed. 2013)). The Supreme Court explained, “the legal determination of intellectual disability is distinct from a medical diagnosis, but it is informed by the medical community’s diagnostic framework. Atkins itselfpoints to the diagnostic criteria employed by psychiatric professionals. And the professional community’s teachingsare of particular help in this case, where no alternative definition ofintellectual disability is presented and wherethis Court and the States have placed substantial reliance on the expertise of the medical profession.” (Hall, supra, 134 S.Ct. at p. 2000, emphasis added.) In other words, the Court did not proclaim that States must use any particular diagnostic criteria for significantly subaverage general intelligence function or adaptive behavior impairment. Nothing in the Hall decision mandates that the definition of “adaptive behavior”set forth in the most recent manuals for the APA and AAIDDprofessionalassociations mustdictate the criteria used by California. Hall says the definitions stated in footnote 3 ofAtkins provide “substantial guidance”for the states, not that those definitions should not be used to determine whethera criminal defendant is ineligible for execution due to mental retardation. Rather, the more recent decision in Brumfield v. Cain (2015) 135 S.Ct. 2269, reiterates that California may retain, without running afoul of the Constitution, the assessmentcriteria endorsed by thelegislative history of section 1376 that expressly referenced the definitions set forth in Atkins footnote 3 (DSM-IV / 1992 AAMR). There, the Supreme Court observed that the Louisiana Supreme Court had described three separate sets of criteria that may be utilized in assessing adaptive impairment. (Brumfield v. Cain, supra, 135 S.Ct. at p. 2279.) Twoofthesets ofcriteria were derived from the DSM-IV and the 1992 AAMR. (Jd. at p. 2279, fn. 6.) Thethird set of criteria was set forth by a former Louisiana statute and required “substantial functional limitations in three or more of the following areas of majorlife activity: (i) Self-care, (ii) Understanding and use of language, (iii) Learning, (iv) Mobility, (v) Self-direction, (vi) Capacity for independentliving.” (/d. at p. 2279.) The Supreme Court utilized this third set of criteria (on the ground it was most favorable to the State) to evaluate, under the federal habeas statutes, whether the state record contained sufficient evidence to raise a question whether the petitioner met the criteria for adaptive impairment. (/bid.) In other words, in Brumfield, the Supreme Court implicitly found it permissible for Louisiana to use its owntest for assessing adaptive behavior even if different than the criteria recited in Atkins footnote 3 or the most recent DSM-V or AAIDDguidelines. Nor did the Supreme Court suggest that it would be inappropriate for a state to use either set of criteria in Atkins footnote 3 to assess intellectual disability. Accordingly, the practice in Brumfield affirms that California may use the “definitions”set forth in Atkins footnote 3 rather than more recentarticulations authored by the APA or AAIDD. As noted above, the California Legislature intended the assessment of adaptive behavior impairment under section 1376 conducted by juries and courts to be based upon the definitions provided in Atkins footnote 3. Maintaining the use ofthe definitions in Atkins footnote 3 has the advantage of keeping consistency between defendants and continuity over time. It avoids litigation about other definitions or criteria employed in the medical community now andin the future. It avoids possible repetitive litigation by the same defendant due to changesin diagnostic criteria that have no constitutional implications. In any event, Hall does not answer whether California permits the use of criteria different than outlined in Atkins footnote 3. Ultimately, using either the 2010 AAIDDcriteria for adaptive behavior impairmentor those in Atkins footnote 3, respondent takes exception to the Referee’s bases for concluding petitioner suffers significantly subaverage general intellectual function and concurrent adaptive behavior deficits under the 2010 AAIDDdefinition. (See Resp. Merits Brf. at pp. 99-130; Resp. Reply Brf. at pp. 27-33.) While Petitioner has argued that testimony summarized in the Report or gleaned from Dr. Khazanov’s hearing testimony also qualify under other categories of the DSM-IV or AAMRorother “subcategories” of the three domainsin the AAIDD(Pet. Reply Brf. at pp. 21-30), the Referee had no basis upon which to makesuch findings and did not do so.” In addressing adaptive behavior * The Referee recited that Dr. Khazanov opined thatpetitioner “demonstrated severe deficits in the conceptual skills area which in her view satisfied the adaptive behavior prong for mental retardation.” (Report at p. 21.) The Referee further recited that “because [Dr. Khazanov]’s tests and interviewsofpetitioner revealed such severe deficits in reading, (continued...) impairments, the Referee summarized the testimony and argumentsit found relevant to its ultimate finding, which specified the conceptual domain. (Report at pp. 21-25.) The Referee selected the 2010 AAIDDcriteria, and no expert opined that any adaptive behavior impairmentother than one falling within the “conceptual skills” domain wassatisfied. This Court should concludethatpetitioner failed to meet his burden to demonstrate significantly subaverageintellectual function existing concurrently with deficits in adaptive behavior and manifested before he was 18 years old. II. CONSIDERATION OF MEASUREMENTDEFICIENCIES INHERENT IN THE IQ TESTING INSTRUMENTS DUE TO NORMING PRACTICES AND “SOCIOECONOMIC FACTORS” EXPLAINING THE SCORE DISTRIBUTIONS DOES NOT CONSTITUTE INVIDIOUS RACIAL DISCRIMINATION Petitioner asks this Court to hold that no adjustment to IQ scores may be constitutionally made on the basis of the test subject’s racial/ethnical background. Petitioner postulates that “this Court ‘deferred ruling’ on Dr. Hinkin’s ‘ethnic correction’ testimony in Champion”? and, in this case, should address the question and find any such adjustmentto be unconstitutional. (Pet. Supp. Brf. at pp. 5-12.) At the outset, Champion did not present or defer the constitutional question now posed. However,it does not violate the Constitution to consider norming practices and the socioeconomic factors that explain score distributions in pre-modern tests whenassessing the overall significance andreliability of a specific IQ test (...continued) writing, language and money concepts ... she deemed it unnecessary to go further to establish the adaptive behavior prong for mental retardation.” (Report at p. 22.) 3 In re Champion (2014) 58 Cal.4th 965. score as part of the broad assessment undertaken to assess petitioner’s generalintellectual functioning. Initially, in Champion,this Court did not “defer” ruling on the appropriateness of adjusting IQ scores dueto racial or ethnic background or socioeconomic factors. (See Champion, supra, 58 Cal.4th at pp. 66-68.) Mental retardation wasnot at issue. At the evidentiary hearing, petitioner Championattempted to show that he suffered “neuropsychological dysfunction”at the time of the charged murders based upon the expert’s testimony that the discrepancy in Champion’s 1997 performanceand verbal IQ scores (74 performance and 92 verbal) evidenced brain dysfunction. (/d. at pp. 66-67.) Amongother contentionsraised by both parties about the Referee’s finding that Championdid not suffer neuropsychological impairments, the Attorney General disputed the expert’s failure to use ethnically corrected norms. (/d. at p. 68.) This Court concluded thatit did not haveto resolve any of the raised disputes because “[it] had not asked the referee to decide petitioner was neuropsychologically impaired at the timeofhis capital trial, and the answer to that question doesnotassist us in deciding whether Defense Counsel Skyers competently assisted him at the penalty phase oftrial.” Ud. at p. 989.) Second, as used by the experts at the evidentiary hearing and by the parties in their prior briefing, the term “socioeconomic factors” described the conditions that might explain measurement discrepanciesfor IQ tests _ normedprior to approximately 2002. Both Dr. Khazanov(petitioner’s expert) and Dr. Hinkin (respondent’s expert) testified that in the decades that petitioner wastested, African-American children scored 10 to 15 points lower than the children on which the tests were normed. (See, e.g., 8RHT 1405-1407; 12RHT 2011.) Dr. Khazanovtestified that discrepancies in scores among populationspersisted to a lesser extent even in tests normed between 1972 and 2002. (QRHT 1582-1586.) Dr. Michael Maloney, who evaluated petitioner in 1984 and spent decades evaluating criminal defendants in Los Angeles County,testified this discrepancy could be higher than 15 points for a particular individual who did notfit the norming parameters for a test without quantifying a numberfor petitioner (11RHT 1946-1951) and that norming problemspersisted in the WAIS-R (1981) given in 1984. (LORHT 1728-35; 11RHT 1780, 1879-1880.)* Both Dr. Hinkin and Dr. Khazanovopinedthat the historical discrepanciesin test performance were not due to anything genetically or intrinsically related to race but to socioeconomic factors. (3RHT 1399-1401; 12RHT 2011.) Petitioner essentially acknowledgesthat historical test results are fallible and unreliable in assessing the “true” general intellectual functioning of individuals outside the group on whichthe tests were normed: “It is true that the average scores of people of a particular race [fn] or other sub- groups may deviate on the average from the norm fora variety of reasons[,] but those reasons are race-neutral.” (Pet. Supp. Brf. at p. 8.) * The twotests administered to petitioner before age 18 that were designed for individual administration (the Stanford-Binet L and the WISC —‘Wechsler Intelligence Scale for Children”) are discussed in detail in a case discussed by the experts at the hearing;the caseillustrates the discrepancies in raw scores and discusses the sampling populations upon which the Stanford-Binet and WISCtests were normed. (See Larry P.v. Riles (N.D. Cal. 1979) 495 F.Supp. 926, 954-959.) In November 1959, petitioner (then age seven) was administered the Stanford-Binet Form L, a test restandardized in 1937 on a population of 3,000 white school children. (See id. at p. 957, fn. 64.) In May 1963, petitioner (age 10) was administered the WISC,a test normed in 1949 on a sample of 2,200 white children. (Ibid.) Dr. David Wechsler, who developed the WISC, recognized the problem ofcultural bias and madethe following pronouncementabout the WISCtest taken by petitioner: “[O]ur norms cannot be used for the colored population of the United States. Though we have tested a large numberof colored persons, our standardization is based upon white subjects only.” (bid; see also Pet. EH Exh. 23 at p. 10 [stating WISCtaken bypetitioner at age 10 was normed in 1949].) Knowingthat the tests individually administered to petitioner before age 18 were normedon a sample population of white children, the parties dispute what possible inferences should be drawn aboutpetitioner’s test results. Dr. Hinkin opined that the assessmentofthe significance of petitioner’s pre-modern IQ scores should consider the error potential based upon socioeconomic factors. (1L2RHT 2011-2016.) Nevertheless, Dr. Hinkin did nat “adjust” petitioner’s IQ score on any test based upon his race because assessment of IQ scores requires an individualized, rather than wholesale, assessment. But putting aside those considerations, Dr. Hinkin testified that petitioner’s unadjusted IQ scoreson eight or nineof the eleven tests administered before petitioner was 18 years old were above the range consistent with mental retardation. (12RHT 1988-1989, 2026-2027.) An array of factors could cause an individual to perform worse on anIQ test than his “true”level of intellect, but the reverse was not true: “You can’t do better. If someone is mentally retarded, you’re not going to see scores as 89 on the Kuhlmann-Anderson. Or even when he was16,that non- verbal I.Q. of 99 on the Thurstone Primary Mental Abilities S.R.A.” (12RHT 1989-1990.) Dr. Hinkin also opinedthat petitioner’s illiteracy negatively impacted and explained the decreasein his scores overtime. (12RHT 1992-1994, 2000-2006.) Dr. Maloney’s assessmentofpetitioner’s scores — including the difference between the performance and verbal component scores — was consistent with that postulated by Dr. Hinkin. (11RHT 1936-1937.) | Recognition that pre-modern IQ tests produced lower scores on average for African-American subjects than the Caucasian populations on whichthe tests were normedis not invidiousracial classification or discrimination. Petitioner argues that considering socioeconomic factors or historic performance differentials on IQ tests will result in racial discrimination—that for death row inmates “with the same IQ,” African- American defendants will be executed while Caucasians will not. (Pet. Supp. Brf. at pp. 8-9.) Petitioner’s argument inappropriately “takes an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, whenexpertsin the field would consider other evidence.” (Hall, supra, 134 S.Ct. at p. 1995.) A person’s IQ score aloneis neversufficient to determine mental retardation. California law as set forth in section 1376 and the decisions of this Court both preclude such use. It is inevitable and entirely race-neutral for defendants with the same IQ score to be diagnosed differently and treated differently based upontheir dissimilar situations. In this case, the appropriate context to examinepetitioner’s pre-18 IQ scores . includes recognition of the deficiencies inherent in these tests and the probability that petitioner’s WISC score of 70 andhis earlier Stanford- Binet L score of 83 underestimated his general intellectual functioning. The above discussion is relevant to two areas previously briefed by the parties. First, respondent took exception to the Referee’s decision not to consider petitioner’s 1959 Stanford-Binet L full scale IQ score in assessing petitioner’s general intellectual functioning due to a misunderstandingofthe test’s “bias” and reliability. (Resp. Merits Brf. at pp. 103-109; Resp. Reply Brf. at pp. 20-23; Pet. Merits Brf. at pp. 19-20; Pet. Reply Brf. at pp. 35-36.) Respondent also took exception to the Referee’s decision not to consider socioeconomic factors in determining whetherpetitioner’s IQ scores reflected his general intellectual function. (See Resp. Merits Brf. at pp. 109-114; Resp. Reply Brf. at pp. 22-23; Pet. Merits Brf. at p. 21; Pet. Reply Brf. at pp. 39-41.) The specific portion of the Report stated: “Tt is impossible to know how much,if any, adjustment should be madein petitioner’s IQ scores for socioeconomicfactors. In light of the AAIDD’s recent pronouncementthat adjustment of IQ scores for such factors should not be made, the Referee declines to make any adjustmentto the scores.” (Report at p. 19.) Essentially, the Referee chose 10 to entirely exclude the Stanford-Binet score from the pertinent inquiry of mental retardation due to testimony aboutthat test’s norming population, while it declined to consider in any respect the same problemsinherent in petitioner’s 1963 WISC and 1984 WAIS-Rtests. Those findings should not be accepted by this Court. Petitioner previously asserted that the Referee’s decision not to consider “socioeconomic factors” was appropriate because the WAIS-III administered by Dr. Khazanov in 2003 was properly normedandreliable. (See Pet. Reply Brf. at pp. 40-41.) The proper norming of this modern test does not refute the universal and undisputed hearing evidencethat the tests administered to petitioner during the years before he turned 18 (including the WISC and the Stanford-Binet L) were normed on a different population demographic (Caucasian children) and have been shownto produce significantly lower scores in African-American test subjects during the historical periods in which those tests were utilized. Petitioner re-argues that his IQ scores are explained by Dr. Khazanov’s testimony that her testing suggested brain dysfunction due to diffused and localized damage in the front and parietal lobes resulting from in-utero alcohol exposure, possible genetic loading, and malnutrition. (Pet. Supp. Brf. at pp. 11-12.) The referee declined to make any findings that Dr. Khazanov's assessments,testing or opinions about these matters were legitimate. (Report at pp. 21-22 & fn. 34.) Petitioner has previously argued the Referee’s decision not to make a finding about brain damage wascorrect and did not take exception. (Pet. Reply Brf. at pp. 41-43.) The referee declined to resolve the key dispute about the reason for the precipitous drop in IQ test results from the 83 on the Stanford-Binet L (age seven) to the 70 scored on the WISC (days before his 11th birthday and weeksbefore he dropped out of school). Dr. Khazanovoffered her opinions about brain damage as an explanation. But Dr. Hinkin, the board 11 certified clinical neuropsychologisttestified, lateralization of the brain occurs before age seven and not around age 10 to 11 as Dr. Khazanov (who was not board certified) opined. As both Dr. Hinkin and Dr. Maloney _ testified, the precipitous drop in scores did notreflect intellectual disability resulting from brain damage but was better explained by socioeconomic factors, lack of basic knowledge needed to do well on IQ tests, and his lack of motivation for school andtest taking. (Resp. Merits Brf. at pp. 109-119; Reply Brf. at pp. 20-28.) To the extent petitioner now attempts to point to different or newer out-of-record articles to attack Dr. Hinkin’s testimony (Pet. Supp. Brf. at pp. 11-12), they were not considered by the Referee and should be rejected as entirely speculative in application to petitioner. 12 CONCLUSION For the reasonsset forth herein and morefully briefed in respondent’s Merits Brief and Reply Brief, this Court should concludethat petitioner failed to meet his burden to demonstrate he suffered intellectual disability as defined by section 1376 disqualifying him from execution underthe Atkins rule. Dated: July 17, 2015 Respectfully submitted, KAMALA D. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General JAIME L. FUSTER Deputy Attorney General Mecwelf MARGARET E. MAXWELL Supervising Deputy Attorney General Attorneysfor Respondent MEM:ez LA2003XH0016 51837069.doc 13 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S SUPPLEMENTAL BRIEF ON THE MERITSusesa 13 point Times New Roman font and contains 3,585 words. Dated: July 17, 2015 KAMALAD. HARRIS Attorney General of California MARG TE. MAXWELL Supervising Deputy Attorney General Attorneysfor Respondent DECLARATION OF SERVICE Case Name: In re Robert Lewis, Jr. On Habeas Corpus CAPITAL CASE Case No.: 8117235 I declare: I am employedin the Office of the Attorney General, whichis 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 nota party to this matter. J 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, 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 July 17, 2015, I served the attached RESPONDENT’S SUPPLEMENTAL BRIEF ON THE MERITS by placing a true copy thereof enclosed in a sealed envelope in the internal mail system ofthe Office ofthe Attorney Generalat 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, addressedas follows: ROBERT M. SANGER CALIFORNIA APPELLATE PROJECT (SF) ATTORNEYAT LAW 101 SECOND STREET, SUITE 600 SANGER SWYSEN & DUNKLE SAN FRANCISCO, CA 94105-3647 125 EAST DE LA GUERRA STREET, SUITE 102 SANTA BARBARA, CA 93101 BRIAN KELBERG , DEPUTY DISTRICT ATTORNEY THE HONORABLE ROBERT J. PERRY, JUDGE COURTESY COPY BY EMAIL LoS ANGELES COUNTY SUPERIOR COURT 111 N. HILL STREET Los ANGELES, CA 90012 ALLEN SUMNER SENIOR DEPUTY LEGAL AFFAIRS SECRETARY GOVERNOR'S OFFICE STATE CAPITOL, FIRST FLOOR SACRAMENTO, CA 95814 On July 17, 2015, I caused original and 8 copies ofthe RESPONDENT’S SUPPLEMENTAL BRIEF ON THE MERITSin this case to bedelivered to the California Supreme Court at 350 McAllister Street, First Floor, San Francisco, CA 94102-4797 by Federal Express, Tracking # 8055-1567- 5634. Case Name: In re Robert Lewis, Jr. On Habeas Corpus CAPITAL CASE Case No.: $117235 On July 17, 2015, I caused one electronic copy of the RESPONDENT’S SUPPLEMENTAL BRIEF ON THE MERITSin this case to be submitted electronically to the California Supreme Court by using the Supreme Court's Electronic Document Submission system. On July 17, 2015, I caused courtesy copy of the RESPONDENT’S SUPPLEMENTAL BRIEF ON THE MERITSin this case to the California Court of Appeal. I declare under penalty ofperjury under the laws of the State of California the foregoingis true and correct and that this declaration was executed on July 17, 2015, at Los Angeles, California. Erlinda Zulueta Aherd antinrh,, Declarant Sigdature MEM:‘:es LA2003XH0016 51836530.doc