PEOPLE v. HOPSON

Appellant’s Reply Brief on the Merits

Cal.July 28, 2016

IN THE SUPREME COURT OF THESTATE OF CALIFORNIA Defendant and Appellant. THE PEOPLE, ) Case No. 228193 ) Plaintiff and Respondent, ) ) ) SUPREME COURT ) FILED RUTHETTA LOIS HOPSON, ) ) JUL 28 2016 ) ) Frank A. McGuire Clerk Deputy APPELLANT’S REPLY BRIEF ON THE MERITS Fourth Appellate District, Division One, Case No. D066684 Riverside County Superior Court, Case No. RIF1105594 The Honorable Jeffrey J. Prevost, Judge GORDONS. BROWNELL,ESQ. State Bar No. 99392 1241 AdamsStreet, # 1139 St. Helena, CA 94574 Email: gsbrownell@aol.com Telephone: (707) 942-4565 Attorney for Defendant and Appellant RUTHETTA LOIS HOPSON IN THE SUPREME COURT OF THESTATE OF CALIFORNIA THE PEOPLE, Case No. 8228193 Plaintiff and Respondent, v. RUTHETTA LOIS HOPSON, Defendant and Appellant. No we ’ N o m e N e e N e e N e w N e e N e e ” N e ” N e e ” e e ” APPELLANT’S REPLY BRIEF ON THE MERITS Fourth Appellate District, Division One, Case No. D066684 Riverside County Superior Court, Case No. RIF1105594 The Honorable Jeffrey J. Prevost, Judge GORDONS. BROWNELL,ESQ. State Bar No. 99392 1241 AdamsStreet, # 1139 St. Helena, CA 94574 Email: gsbrownell@aol.com Telephone: (707) 942-4565 Attorney for Defendant and Appellant RUTHETTA LOIS HOPSON TOPICAL INDEX Page TOPICAL INDEX....... 0 ccc ccc ccc e eee e eee eneeneeeces i TABLE OF AUTHORITIES. 2.0... 0.0... ccc ccc cece cece ee eeeee ili INTRODUCTION. ..... 0. ccc ccc cece cence nee cece eteeseeee 1 ARGUMENT. 2... ccc ccc ccc ccc cece ence eee eeeeeeeteeeceee 2 1. DETECTIVE WHEELER’S TESTIMONY CONCERNING THE STATEMENTS MADE BY JULIUS THOMAS TO THE POLICE VIOLATED MS. HOPSON’S RIGHT TO CONFRONTATION UNDER THE SIXTH AMENDMENT........... ccc cece ccc ceccececes 2 A. Thomas’s Statements to the Police Were Not Introduced for a Limited, Non-hearsay Purpose of Impeaching Thomas’s Credibility..................... 2 B. Thomas’s Statements to the Police Were Not Introduced for a Limited, Non-hearsay Purpose of Impeaching Ms. Hopsom... .......... cc ccceceeeeeees 13 1. Impeachmentof Ms. Hopson’s Explanation for Changing Her Story.............0cceeeeee 14 2. Impeachmentof Ms. Hopson’s Testimony about Statements Thomas Madeto Her......... 17 Cc. Ms. Hopson Did Not “Open the Door” to the Admission of the Statements Thomas Madeto the |i) 19 1. The Purported “Opening the Door” Exception to the Rule Set Forth in Crawford.....19 2. Ms. Hopson Did Not Waive Her Right to Confrontation by Testifying at Trial About Thomas’s Role in Brown’s Murder............. 22 D. The Improper Admission at Trial of Thomas’s Statements through Detective Wheeler Was Not Harmless Beyond a Reasonable Doubt................ 32 CONCLUSION, 2.0... cece ccc cece eee e een eee e eee eeesennee 35 CERTIFICATE OF COMPLIANCE. .......... 0.0 cc eeeece eee 35 il TABLE OF AUTHORITIES Page(s) Cases Adamsonv. Cathel (3d Cir. 2011) 633 F.3d 248... 0...ee 10, 15, 18 Brookhart v. Janis (1966) 384 US.Looneceee eens 30 Chapmanv. California (1967) 386 US. 18...ccc een eee eens 32, 34 Crawford v. Washington (2004) 541 US. 36... 20... eee ee 3, 4, 7, 14, 19-23, 27, 31 Freemanv. State (Ga.Ct.App. 2014) 765 S.E.2d 631.0... 0... eee 21,22 Lanev. State (Ind.Ct.App. 2013) 997 N.E.2d 83......0. 0.000 27 McClentonv. State (Tex.Ct.App. 2005) 167 S.W.3d 86. 20... 0cccc 27 People v. Blacksher (2011) 52 Cal.4th 769... 0...cee een ens 3, 6-9 People v. Cage (2007) 40 Cal.4th 965... 0.0...nene 3 People v. Carter (2003) 30 Cal.4th 1166.... 0...ccceee ens 16 People v. Cowan (2010) 50 Cal.4th 401... 0.0.eeeeens 9 People v. Hernandez (2004) 33 Cal.4th 1040... 0.0... 0 eeeeee 9 lil People v. Mayo (2006) 140 Cal.App.4th 535.00...cccee eee ees 4 People v. Reid (N.Y. 2012) 971 N.E.2d 353... 0...ces 19-21, 23-26 People v. Rogers (Colo.Ct.App. 2012) 317 P.3d 1280........... 0.0. c eee eee 25, 26 Sanabria v. State (Del. 2009) 974 A.2d 107... 0... ce cc cece 15, 18 State v. Brooks (Hawaii Ct.App. 2011) 264 P.3d40............0..0...0.0.000. 27 State v. Cole (Mo.Ct.App. 2016) 483 S.W.3d 470.......... 00.00 005. 11,15, 18 State v. Fisher (Kan. 2007) 154 P.3d 455.0000.cceet eens 26 Sullivan v. Louisiana (1993) 508 U.S. 275. 00eeeeee eee ens 34 Tennessee v. Street (1985) 471 U.S. 409.2ccceee 10, 11, 15, 17 Tinker v. State (Ala.Crim.App. 2005) 932 So.2d 168........ 00.0. e eee 27 United States v. Churchwell (11th Cir. 2012) 465 Fed.Appx. 864......... 0... 12 United States v. Cromer (6th Cir. 2004) 389 F.3d 662. 2.0... ees 21, 22, 25 United States v. Holmes (8th Cir. 2010) 620 F.3d 836. 2.0...eeeeee 29 iv United States v. Lopez-Medina (10th Cir. 2010) 596 F.3d 716. 20... cece eee 28-30 Constitutional Provisions US. Const., 6th Amend.. .... 0.000.cena 2, 10 Statutes Evid. Code, § 1200..... 0.0... ccc cece tee eee e even e nas 3 Evid. Code, § 1202......0... 00. 0 ccc cece eee ens 2, 3, 8, 30 Pen. Code, § 190.3... .. 0.cccene t nent eee ee nas 17 Court Rules Cal. Rules of Court, rule 8.520. 2.0...ceee nes 35 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE, ) Case No. 8228193 ) Plaintiff and Respondent, ) ) V. ) ) RUTHETTA LOIS HOPSON, ) ) Defendant and Appellant. ) ) INTRODUCTION The issue on whichthis court granted review was thoroughly addressed in Ms. Hopson’s openingbriefon the merits (““OBM”). This reply briefon the merits addresses only contentionsset forth in respondent’s answerbriefon the merits (“ABM”) as to which Ms. Hopsonbelieves further discussion may be useful to the court. // Mf Mf Mf /// ARGUMENT L. DETECTIVE WHEELER’S TESTIMONYCONCERNINGTHE STATEMENTSMADE BY JULIUS THOMASTOTHE POLICE VIOLATED MS. HOPSON’S RIGHT TO CONFRONTATION UNDER THE SIXTH AMENDMENT. A. Thomas’s Statements to the Police Were Not Introduced for a Limited, Non-hearsay Purpose of Impeaching Thomas’s Credibility. Respondentstates that “the Court of Appeal correctly determinedthat there was no confrontation clause problem with Thomas’s statements because they were not offered for the truth.” (ABM 1.) Respondent offers several theories as to “nonhearsay” purposes for which the statements were offered. (ABM 1-2, 23-35.) The first theory is that “the prosecution introduced Thomas’s police statements for the nonhearsay purpose of challenging Thomas's credibility.” (ABM 1.) Thetrial court relied on that theory, but the Court of Appeal rejected it. (See 3 RT 422-423; Opn. 16-17, 26.) For the reasons Ms. Hopson now explains,this court should reject it as well. In a little more detail, respondent’s theory is that (1) Ms. Hopson gave hearsay testimony about statements madeto herbythe late Julius Thomas;(2) Detective Wheeler’s testimony about statements made to him by Thomas— statements which placed the primary blame for Laverna Brown’s murder on Ms. Hopson—wasadmissible under section 1202 of the Evidence Codeto impeach the credibility of Thomas, the hearsay declarant in Ms. Hopson’s 2 testimony; and (3) the admissibility under California law (section 1202) ofthe testimony about Thomas’s statements to the police somehowinsulatedit from the federal constitutional requirement that a criminal defendant have the opportunity to cross-examine the witnesses against her. (ABM 1, 23-28.) Respondent begins by observing that the confrontation clause, as interpreted in Crawford v. Washington (2004) 541 U.S. 36 (Crawford), does not restrict the use of out-of-court statements “‘for nonhearsay purposes.’” (AOB 23, quoting People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6.) Ms. Hopsonagrees, assumingthat the phrase “nonhearsay purposes”has the same meaning this court attributed to it in Cage: “purposes other than establishing the truth of the matter asserted.’” (Cage, at p. 975, fn. 6, quoting Crawford, 541 U.S.at p. 60, fn. 9.) By the same token, an out-of-court statement which is offered to establish the truth of the matter asserted is hearsay evidence, evenifit is admissible because of an exception to the hearsay rule. (Evid. Code, § 1200; People v. Blacksher (2011) 52 Cal.4th 769, 810 (Blacksher).) And if that hearsayis “testimonial”—apoint not disputed here (ABM 13; Opn. 13)—then no state-law ground for admissibility can save it from exclusion under the confrontation clause, unless the declarant is unavailable and the defendant has Se fi ga ia bi s hada prior opportunity to cross-examinethe declarant. (Crawford, supra, 541 USS. at p. 61; People v. Mayo (2006) 140 Cal.App.4th 535, 554.) The Court ofAppeal noted that it was unclear from respondent’s brief “whether the Attorney Generalis assumingthat the rebuttal testimonyaffected the credibility ofHopsonas the defendant, or Thomasas the declarant.” (Opn. 25.) Respondent resolvesthat problem in this court by advancing both theories in separate sections ofargument. But as the Court ofAppeal noted,the “thrust of Hopson’s defense case was her testimony that Thomas forced her to participate in the robbery and killing, by repeatedly threatening her and her adult son.” (Opn. 12.) The evidence of threats was, of course, not admitted to provethat the threats weretrue,i.e., that Thomasintended to carry them out. Asthe Court of Appeal stated, Ms. “Hopsondid not obtain admission of the truth of Thomas’s ‘threatening’ statements, simply by the way she reported them.” (Opn. 26.) It is true that Ms. Hopsontestified that Thomas to/d her that he had killed Brown. (2 RT 323-325.) But this was hardly the dramatic confession that respondent makesit out to be—asifthe identity ofBrown’s killer would have been a mystery to Ms. Hopson, under herversion of events, if Thomas had not “admitted” to her that he did it. (See ABM 1, 2, 14, 23.) Hopson essentially caught Thomas red-handed,according to her testimony. “Hopson testified that when she responded to Thomas’stelephone call that night by meeting him in the garage at her house, she was shockedto find Brownlying bloody and dead.” (Opn. 13.) “After Thomasthreatened to kill Hopson and her son if she did not help him, Hopson cleaned up the blood and helped Thomas hide Brown’s body.” (Opn. 13.) Thus, Ms. Hopson’s testimony squarely placed the blame for Brown’s murder on Thomas, based on what she saw and onhis non-hearsay statements(i.e., his demands andthreats), quite apart from any admission he madeto her. For that reason, the Court of Appeal was correct whenit held that the trial court “did not properly apply section 1202,” because Thomas’s statements to Ms. Hopson “were not received in evidence as hearsay offered for the truth of the statements, pursuant to section 1200, subdivision (a).” (Opn. 26.) The prosecution did not introduce Detective Wheeler’s testimony about Thomas’s statements to the police in order to impeach Thomasas a hearsay declarant. “Read in context, the apparent purpose of the rebuttal testimony from Detective Wheeler was to attack the credibility of Hopson asa testifying defendant, with regard to her fear of Thomasas supposedly motivating her to cooperate with him in covering up the killing of Brown. According to Detective Wheeler, Thomas’s statements to him blamed Hopson, which was markedly different from how Hopson described the events in court.” (Opn. 26.)! Respondentasserts that Blacksher, supra, 52 Cal.4th 769, compels the conclusion that the admission of Thomas’s statementsto the police (through Detective Wheeler’s testimony) did not violate the confrontation clause. (ABM 24-25.) In Blacksher, this court rejected, for various reasons,a series of confrontation clause challenges to the admission of testimony about statements the defendant’s mother, Eva, had made. (Blacksher, at pp. 803- 819.) Eva had testified at the preliminary hearing but was deemed incompetentto testify at trial because of dementia. (/d. at p. 803.) At issue in the part of Blacksher on which respondentrelies were statements Eva had made two days before the murders with which the defendant was charged, when Eva and her daughter Versenia (one of the murder victims) obtained a temporary restraining order (TRO) against the defendant. (Blacksher, supra, 52 Cal.4th at pp. 803-808.) In preliminary hearing testimonyreadto the jury at trial, Eva denied obtaining the TRO and writing that she wasafraid ofthe defendant. (/d. at pp. 803-804.) To impeach that testimony, the prosecution called Ruth, another daughter ofEva, who had ' Respondent’s alternative theory that the hearsay evidence of Thomas’s statements was admissible, over the confrontation clause objection, to impeach Ms. Hopsonis addressed in Part B, post. 6 driven Eva and Versenia to the courthouse and watched them spending hours waiting in line and filling out TRO application forms. (/d. at p. 804.) Ruth’s testimony included some statements Eva had made; the defendant objected on several grounds, including the confrontation clause. Thetrial court overruled the objections and “instructed the jury that Eva’s statements to Ruth about obtaining the restraining order were admissible only to impeach Eva’s prior testimony ‘and for that purpose only.’” (/bid., emphasis added.) This court beganits analysis byrejecting the defendant’s assertion “that Ruth’s testimony was inadmissible to impeach Eva’s preliminary hearing testimony because, under Crawford, Eva’s failing memory effectively denied him his right to cross-examine her at the preliminary hearing.” (Blacksher, supra, 52 Cal.4th at p. 805.) In addition to finding that the defendant had forfeited the claim, this court held that Eva’s problems understanding questions and failure to recall some previous events “did not render defendant’s cross-examination opportunity meaningless.” (Jbid.) In the instant case, of course, Ms. Hopson never had any opportunity to cross- examine Thomas abouthis statements to the police. Next in Blacksher, this court addressed “defendant’s claim that Ruth’s testimony impeaching Eva’s former testimony was not admissible on confrontation grounds undereither state or federal law.” (Blacksher, supra, 52 Cal.4th at p. 806.) The court held that Eva’s statements to Ruth “were admissible under Evidence Code section 1202, which governs the impeachmentofhearsay statements by a declarant who doesnottestify attrial. Thejury wasproperly instructed onthispoint.” (Blacksher, supra, 52 Cal.4th at p. 806, emphasis added.) After discussing two Court of Appeal opinions which disagreed about the meaning of section 1202, the court concluded: In sum, the confrontation clause does not prohibit the prosecution from impeaching the former testimony of its own unavailable witnesses with their inconsistent statements, provided those statements are admitted onlyfor impeachment purposes. However, under Evidence Code section 1202, the prosecution may not offer for their truth the inconsistent statements of a declarant who doesnottestify at trial... . Here, Eva’s statements to Ruth about the restraining order were not admitted for their truth. They were relevant for the limited purpose of impeachment and properly admitted. (Blacksher, supra, 52 Cal.4th at p. 808, emphasis added.) A key difference between Blacksher and the instant case, as should be evident from the italicized language in several of the foregoing quotations,is that the trier of fact in Blacksher was instructed to consider Eva’s out-of-court statements only forthe limited purpose ofimpeachmentofher testimonyat the * Amongother reasons why Blacksher’s holding is inapplicable to the instant case, the prosecution did not seek to impeach “the formertestimony of its own unavailable witnesses” in this case. Thomas had never given testimony, unlike Eva Blacksher. (Blacksher, supra, 52 Cal.4th at p. 808.) 8 preliminary hearing. (Blacksher, supra, 52 Cal.4th at pp. 804, 806, 808.) In the instant case, the jury wasperfectly free to accept Thomas’s statements to the police as the true story of Brown’s murder. Respondent acknowledgesthat“the trial court did not instruct the jury as to the limited purpose of the statements” butasserts that this “is nobody’s fault but” Ms. Hopson’s. (ABM 27.) In respondent’s view, Ms. Hopson’s objecting “under Crawford” to the admission of Thomas’s statements for the supposedly “limited purpose”(3 RT 422-423) was not enough;she,rather than the prosecution (the proponentofthe evidence), was responsible for ensuring that the trial court instructed the jury that the evidence was not being admitted for its truth. Respondent is mistaken, for several reasons. First, Ms. Hopson madein thetrial court exactly the same objection she pursues on appeal—that the introduction of the evidence of Thomas’s statementsto the police violated the confrontation clause. The California cases cited by respondent—People v. Cowan (2010) 50 Cal.4th 401 and People v. Hernandez (2004) 33 Cal.4th 1040—werestraightforward applications ofthe generalrule that an appellant cannot seek reversal of the judgment based on an error which was not broughtto thetrial court’s attention. In each case, the defendantasserted on appealthat the trial court had erred byfailing to instruct the jury regarding the limited purpose for which certain evidence was admitted. (Cowan,at p. 479; Hernandez, at p. 1051.) This court held, in each case, that the trial court had no sua sponte duty to give a limiting instruction; that defense counsel wasatfault for failing to remindthetrial court that it had agreed to give one; and that anyerrorin failing to give one wasnotprejudicial. (Cowan,at p. 480; Hernandez, at pp. 1051-1052, 1054.) Respondent seemsto suggest that this court must analyze the evidence ofThomas’s statements, for confrontation clause purposes,asifthe jury were restricted to using the evidencefor a “limited purpose,” even though the jury wasnotso restricted. Respondentcites no Sixth Amendment case law which supports this notion. There is, however, Sixth Amendment case law which contradicts it. (E.g., Adamson v. Cathel (3d Cir. 2011) 633 F.3d 248, 251-252, 258-259 [written statements of accomplices were introduced, without objection, to impeach defendant’s testimony that details in his own written confession came from those of accomplices; state appellate court, rejecting confrontation clause argument, noted trial court’s failure to instruct jury to consider accomplice statements solely for impeachmentbut held that this was not “plain error”; federal appellate court disagreed, holding that “failure to instruct the jury regarding the proper use of the accomplice statements, statements which facially incriminated Adamson,wasplain and obvious error that was directly contrary to” Supreme Court’s holding in Tennessee v. Street 10 (1985) 471 U.S. 409, which “makesclear that a jury’s understanding of the distinction between substantive and impeachmentuses ofinculpatory evidence cannot be taken for granted”’].) A recent example is State v. Cole (Mo.Ct.App. 2016) 483 S.W.3d 470, in which a police sergeanttestifying for the prosecution began to relate what a confidential informant had told the police. Defense counsel objected on hearsay and confrontation clause grounds. The prosecutor stated, “I’m not offering it for the truth, your Honor,” and the court agreed that “this is the basis ofwhat he did soat this point I’m going to overrule your objection.” The sergeant continued testifying about what the informant said. (/d. at p. 473.) After the defendant was convicted, he appealed, arguing that the sergeant’s testimonyviolated his rights under the confrontation clause. (/d. at pp. 473- 474.) The appellate court ruled as follows: We agree with Appellant that Sergeant Cheek’s testimony exceededthe scope necessary to provide background and continuity for his investigation. Sergeant Cheek could have provided appropriate context without divulging the informant’s incriminating statements to the jury... . Furthermore, no limiting instruction wasgivento thejury, and there was nothing to prevent thejuryfrom considering the informant’s statements fortheir truth. [Citation.] Therefore, the testimony regarding the informant’s statements was inadmissible hearsay and violated Appellant’s rights under the Confrontation Clause. (State v. Cole, supra, 483 S.W.2d at p. 475, emphasis added.) 11 The not-for-publication Eleventh Circuit opinion cited by respondent (ABM 27-28), United States v. Churchwell (11th Cir. 2012) 465 Fed.Appx. 864, does not support respondent’s position. In that case, the defendant argued “for the first time on appeal” that the introduction of certain out-of-court statements into evidence violated the confrontation clause. (/d. at p. 865.) The Eleventh Circuit stated that, although constitutional claims are usually reviewedde novo,“plain error” review would apply in Churchwell, because “Churchwell did not object to the pertinent testimony or argumentattrial on any grounds, including the Confrontation Clause, nor did he ask the district court for a limiting instruction.” (J/bid.) The court concluded that the statements “were introduced for non-hearsay purposes”and that, even if they were not, “the statements did not likely have a substantial effect on the outcome.” (/d. at pp. 865-866.) Nothing in Churchwell supports the notion that Ms. Hopson had to ask for a limiting instruction in order for this reviewing court to acknowledgethe historical fact that the jury was allowed to use the evidence of Thomas’sstatements to police for all purposes. Even if there were some support in case law for the idea that this court must indulge a fiction that the trial court forbade the jury to use the hearsay statements as evidenceoftheir truth, the prosecution should not be heard to make such an assertion with regard to Thomas’s statements to the police in the 12 instant case, because the prosecutordirectly, and repeatedly, exhorted the jury to conclude that those statements were true. (3 RT 516, 519, 547-548, quoted in OBM 40-41.) In this court, the prosecution belittles these exhortations as “fleeting references” (ABM 28), butthe trial prosecutor asked thejury to find facts based solely on Thomas’s statements,as relayed by Detective Wheeler— facts for which there was no other evidence, such as that Ms. Hopson“had the bloody knife, the butcher knife in her hand while she was leaning overthe body of Laverna Brown”(3 RT 516) and that Ms. Hopson conceived a “plan that [Thomas] would hide in the garage, and she would create somesecret plan to get Laverna out of her room andinto the garage” (3 RT 519). For the foregoing reasons, this court should reject, as did the Court of Appeal, respondent’s contention that Julius Thomas’s statements were properly admitted to impeach his owncredibility. B. Thomas’s Statements to the Police Were Not Introducedfor a Limited, Non-hearsay Purpose ofImpeaching Ms. Hopson. Respondent next argues that ““Thomas’s police statements were also independently admissible to impeach appellant’s testimony,” because they “cast doubt on appellant’s explanation for whyherstory at trial was different from whatsheinitially told the police” and “impugned appellant’s claim that Thomashad really confessed to her.” (ABM 2.) For the reasons Ms. Hopson now explains, respondentis incorrect. 13 1. Impeachment of Ms. Hopson’s Explanation for Changing Her Story Respondentasserts that “Thomas’s police statements were admissible for the nonhearsay purpose of impeaching appellant’s credibility” in several respects. (ABM 28.) Respondent’s first theory in this regard is that “Thomas’s statements to the police impeached the credibility of appellant’s claim that she hid the truth because she wasafraid of him. They suggested a different explanation for appellant’s morphingnarrative, namely,that appellant changed her story because she had to account for what Thomas told the police.” (ABM 28.) Reasons abound whyrespondent’s theory cannotjustify the admission into evidence, through Detective Wheeler, of Thomas’s statements to the police. To begin with, the evidence wasnot, in fact, admitted for the limited purpose respondent hypothesizes. The prosecutor asked that Thomas’s statements be “admitted under 1202ofthe hearsay exception to impeach the hearsay declarations that came in through the defendant.” (2 RT 422, emphasis added.) After defense counsel stated his Crawford objection, the trial court agreed with the prosecutor that the statements were admissible for that purpose “under 1202.” (2 RT 422-423.) Neither the prosecutor nor the trial court ever mentioned impeachmentofMs. Hopson’s testimony about why 14 she initially denied any involvement in Brown’s murder as a reason for admitting Thomas’s statements into evidence. More importantly, the jury was never told of any limitations on the purposes for which it could use the evidence of Thomas’s statements. Even ifthe trial court had ruled outside the jury’s presence that the statements were admissible for the limited purpose respondent hypothesizes (whichit did not), the absence of any limiting instruction meansthat, at least for purposes of confrontation clause analysis, the evidence was admitted for the truth of the matters asserted by Thomas. (State v. Cole, supra, 483 S.W.3d at p. 475, quoted ante, p. 11; Adamson v. Cathel, supra, 633 F.3d at p. 259, fn. 8 [“we and our sister circuits have acknowledged [Tennessee v.] Street’s teaching that a limiting instruction is necessary [to satisfy the confrontation clause] where, as here, nonhearsay use is made of expressly incriminating statements”]; Sanabria v. State (Del. 2009) 974 A.2d 107, 110 [“because there was no limiting instruction thatthe dispatcher’s comments were notbeing admittedfor the truth of their content, the Superior Court violated Sanabria’s Sixth Amendmentrights under the Confrontation Clause by permitting the police officerto testify about the dispatcher’s statements”’].) Evenifthe confrontation clause would permit this court to indulge the contention that Thomas’s statements were admitted for the limited purpose of 15 impeaching Ms. Hopson’s testimony about why “she hid the truth” in her conversations with police (ABM 28), that would not have been a legitimate non-hearsay reason for admitting the statements. Contrary to respondent’s assertion, the jury did not have “to decide if appellant changedher story for the reason she said — that she was too scared to do so earlier — or for some other reason.” (ABM 29.) Ms. Hopson’s motive for admittingat trial that she helped to dispose of Brown’s body and to cover up the murder, rather than standing byherinitial position that she was not involvedat all, was not an issue in this case.” Respondent’s assertion that this case “is a lot like” People v. Carter (2003) 30 Cal.4th 1166 is incorrect; Carter bears no resemblanceto this case. (ABM 29.) The issue in the part of Carter on which respondent relies was whether “the prosecutor engaged in misconduct in cross-examining” the defendant, during thepenaltyphaseofhis capital murdertrial, concerning the extrajudicial statements oftwo accomplices. (Carter, at pp. 1205, 1208.) This court held that the prosecutor asked about the accomplices’ statements “notto 3 Respondentasserts that the jury needed to decide whether Ms. Hopson “had crafted a story to match the details ofThomas’s statements.” (ABM 30.) Obviously, Ms. Hopson’s story did not match the details of Thomas’s statements, since she did not admit planning Brown’s murder, kneeling over Brownwith a bloody knife in her hand, rejecting Thomas’s requestto call the police after Brown died, and so on. (OBM 23-26 [summarizing Thomas’s statements to police]; ABM 21-22 [same].) 16 establish the truth of the matters asserted therein but to shed light on defendant’s state ofmind in admitting his own involvementin the [crimes] and the credibility of his trial testimony that his admission was motivated by a desire to bring forth the truth.” (/d. at p. 1209.) Of course, in the penalty phaseofa capital trial, whether the defendant confessed for altruistic reasons or because he knew that accomplices already had implicated him would be relevant to the jury’s consideration of mitigating circumstances. (See Pen. Code, § 190.3.) 2. Impeachment of Ms. Hopson’s Testimony about Statements Thomas Made to Her Respondentnext hypothesizes that Detective Wheeler’s testimony about Thomas’s statements to the police “impeached the credibility of appellant’s assertion that Thomasactually made the admissions that she ascribed to him.” (ABM 30.) Notably, respondent does not characterize this as a “limited” purpose, and indeed,it is not. The jurors would have had to accept Thomas’s statements for their truth (which they were free to do) in orderto believe that they disproved Ms. Hopson’stestimony about Thomas’s admissionsto her. In one paragraph, responding to Ms. Hopson’s analysis of Tennessee v. Street, supra, 471 U.S. 409, respondenttries to posit a scenario in which the jurors could have both (1) disbelieved Thomas’s statements to the police and (2) used those disbelieved statements to conclude that Thomasnever told Ms. Hopson 17 that he killed Brown. (ABM 32-33.) Suffice it to say that this scenario is implausible.* Assuming arguendo that the purpose hypothesized by respondent was a limited purpose, somehow distinct from introducing Thomas’s police statements for their truth, the statements’ introduction still violated the confrontation clause, because they were not introduced for that “limited” purpose. As Ms. Hopson has noted, so far as the confrontation clause is concerned, out-of-court statements are admitted for the truth of the matter asserted unless the jury is instructed that it may not use the statements as evidenceoftheir truth. (State v. Cole, supra, 483 S.W.3d at p. 475; Adamson v. Cathel, supra, 633 F.3d at p. 259, fn. 8; Sanabria v. State, supra, 974 A.2d at p. 110.) Moreover, as Ms. Hopsonalso hasnoted, the prosecutor argued to the jurors, at least four times, that they should accept Thomas’s statements as evidence that what Thomastold the police was true. (3 RT 516, 519, 547-548, quoted in OBM 40-41.) For the foregoing reasons, Thomas’s statements were not properly admittedat trial to impeach Ms. Hopson’s credibility. /// * In all other respects, respondent’s reliance on Street (ABM 30-32) is thoroughly addressed by Ms. Hopson’s discussion of that case in her opening brief. (OBM 37-41.) 18 C. Ms. Hopson Did Not “Open the Door”to the Admission of the Statements Thomas Madeto the Police. 1. The Purported “Opening the Door” Exception to the Rule Set Forth in Crawford Respondent argues that, even if this court were to determine that the introduction ofThomas’s police statements “crossed the line from nonhearsay to hearsay,” it should still hold that there was no violation of Ms. Hopson’s right ofconfrontation, because she “opened the Sixth Amendmentdoorhere.” (ABM 35.) For the reasons she will explain, Ms. Hopsonasksthis court to reject respondent’s argument, as well as the Court of Appeal’s holding that Ms. Hopson “opened the door” to the admission of Detective Wheeler’s rebuttal testimony. (Opn. 32-37.) The Court ofAppeal held that, “[e]ven ifwe assume there were [sic] a confrontation clause problem posed by Thomas’s reported testimonial statements,in the nature of ‘bleeding over’ from impeachmentinto substantive evidence aboutthe identity of the killer, we conclude the rebuttal testimony from Detective Wheeler was properly admitted because Hopson ‘opened the doorto its admission.’” (Opn. 36-37, quoting People v. Reid (N.Y. 2012) 971 N.E.2d 353, 357 (Reid).) Reid cited four federal appellate opinions which had “held that ‘a defendant can open the door to the admission of evidence otherwise barred by the Confrontation Clause’” and one federal appellate 19 opinion which had held otherwise; Reid then concluded: “Weagree with this consensus.” (Reid, at pp. 356-357.) The Court of Appeal apparently agreed as well. (Opn. 32-33, 35-37.) Respondent now cites Reid and several other cases, which respondent calls a “growing consensus,”for the proposition that a defendant can “open the door”to the admission of prosecution evidence that otherwise would violate the confrontation clause. (ABM 35-39.) Strictly speaking, it is not necessary for this court to reach that issue, for as Ms. Hopson explains in Part 2, post, even by the standards employed in Reid andthe other cases which held thatthe “door” was opened,her exercise of her right to testify in her own defense in the instant case did not open the door. Ms. Hopson does, however, deem it worth noting that, even though a numberofcourts “have concludedthat a defendant’s trial strategy can open the doorto the admission ofevidencethat the confrontation clause wouldnormally bar” (ABM 35), those courts do not include either this court or the United States Supreme Court. In Crawford, the high court held unequivocally that the confrontation clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” (Crawford, supra, 541 U.S.at pp. 53-54.) The high court has not recognized an “opening 20 the door” exception to the rule it set forth in Crawford, andthis court should not recognize oneeither. Despite the use of the term “consensus” by Reid, by the Court of Appeal, and by respondent, the federal and other-state appellate courts which have considered the question have not all agreed that Crawford has an “opening the door” exception. Ms. Hopson urges this court to adopt the reasoning of the Sixth Circuit Court of Appeals in United States v. Cromer (6th Cir. 2004) 389 F.3d 662, 679 (Cromer), which she discussed in her opening brief on the merits. (ABM 50-52.) In Cromer, the Sixth Circuit stated: If there is one theme that emerges from Crawford,it is that the Confrontation Clause confers a powerful and fundamental right that is no longer subsumedby the evidentiary rules governing the admission of hearsay statements. Thus, the mere fact that Cromer may have opened the door to the testimonial, out-of-court statement that violated his confrontation right is not sufficient to erase that violation. (Cromer, supra, 389 F.3d at p. 679; accord, Freeman v. State (Ga.Ct.App. 2014) 765 S.E.2d 631, 638 [officer testified that confidential informant stated he bought crack cocaine from someonewith first name similar to defendant’s; ‘““we disagree with the trial court’s assertion that Freeman openedthe doorto the admission of this evidence during his aggressive cross-examination ofthe lead officer as to why Freeman was targeted when there were at least four 21 other people at the residenceat the time the search warrant was executed. ... [A]lthough courts at times allow ‘the use of otherwise inadmissible evidence, including hearsay statements,to clarify, rebut, or complete an issue opened up by defense counsel on cross-examination,’ as the Supreme Court ofthe United States has explained, ‘[w]here testimonial statements are involved, we do not think the Framers meantto leave the Sixth Amendment’s protection to the vagariesofthe rules of evidence ....’ Thus,the trial court erred in ruling that Freeman opened the doorto the CI’s statement”], fns. omitted.) Ms. Hopson submits that the Cromer and Freeman courts were correct in holding that the confrontation clause, as interpreted in Crawford, prohibits the introduction of testimonial out-of-court statements for their truth even in situations where, underthe applicable non-constitutional rules ofevidence,the defense might be deemed to have “opened the door” to the prosecution’s introduction of hearsay. 2. Ms. Hopson Did Not Waive Her Right to Confrontation by Testifying at Trial About Thomas’s Role in Brown’s Murder. As respondentstates, “[a]ssuming that a defendant can open the door to hearsay evidence,that raises the question ofwhether appellantdidso in this case.” (ABM 40.) Respondent acknowledges that no “single standard for determining whether a defendant has openedthe door to hearsay evidence over 22 herright of confrontation” has emerged from the cases which have foundthat such an exception to Crawford exists. (ABM 40.) Ms. Hopson submits that none of those cases involved circumstances even remotely similar to those of the instant case. Courts have found the “door” to testimonial hearsay opened in two basic situations: (1) when a defendant’s counsel elicits testimonial hearsay evidence whichthe trial court determines objectively—.e., without deciding the truth or falsity of the matter asserted—would leave an incomplete or misleading picture for thejury ifthe prosecution were notallowedto introduce other testimonial hearsay evidence to complete the picture, and (2) when a defendant’s counselintentionally waives the defendant’s confrontation clause rights. Neither situation existed in Ms. Hopson’s case. As respondentpoints out, “[t]he Court of Appeal analyzed this issue through the prism of People v. Reid.’ (ABM 35, citing Opn. at 32-33, 37.) Reid, a murdercase, involved an attempt by a defense attorneyto elicit from witnesses favorable portions of testimonial out-of-court statements made by non-testifying declarants, while relying on the confrontation clause to prevent the prosecution from introducing other, unfavorable, testimonial hearsay. (Reid, supra, 971 N.E.2d at pp. 354-357.) The Reid court held that, “by eliciting from witnesses that the police had information that [another person] 23 was involved in the shooting, by suggesting that more than one source indicated that [the other person] was at the scene, and by persistently presenting the argument that the police investigation was incompetent, defendant openedthe doorto the admission of the testimonial evidence, from his nontestifying codefendant, that the police had information that [the other person defendantwastrying to blame] wasnot at the shooting.” (/d. at p. 357.) Respondent“proposesthat the Court adopt Reid’s test” for deciding “if the door was opened.” (ABM 40-41.) Reid stated the test as follows: Whether a defendant opened the doorto particular, otherwise inadmissible evidence presented to the jury must be decided on a case-by-case basis. The inquiry is twofold—“whether, and to what extent, the evidence or argumentsaid to open the dooris incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression”[citation]. (Reid, supra, 971 N.E.2d at p. 357.) Bythat standard, Ms. Hopsondid not open the door; nothing like what happenedinReid occurredin this case. Ms. Hopsondid not, for example, seek to admit parts of Thomas’stestimonial statements to the police, use them to suggest that the police investigation was incompetent, and thentry to keep out other portions of Thomas’s statements which would have underminedthat suggestion. Rather, Ms. Hopson consistently sought to exclude all of Thomas’s statements to the police. (1 RT 8, 12; 3 RT 422-423.) 24 Respondentfinds People v. Rogers (Colo.Ct.App. 2012) 317 P.3d 1280 “particularly instructive” (ABM 38); however, Rogers is distinguishable for much the same reasons as Reid. In Rogers, the defendant was convicted of unlawful firearm possession after the police found a gun in the car in which the defendant was a passenger. (Rogers, at pp. 1281-1282.) Attrial, the defendant elicited police testimony about a hearsay statement made by the driver that the driver had handled the gun, which tended to exonerate the defendant; the trial court then permitted the officer to testify as to other statements the driver made, which inculpated the defendant. (/d. at pp. 1282- 1284.) The appellate court held that, because defense counsel had “introduced the driver’s hearsay statement during the cross-examination ofthe arresting officer in orderto elicit evidence that the driver knew ofthe gun and hadtried to concealit,”the defendant “opened the door to the prosecution’s redirect examination and the admission ofstatements implicating defendant.” (People v. Rogers, supra, 317 P.3d at p. 1283.) Disagreeing with Cromer, the court stated that“admission oftestimonythat violates the Confrontation Clause may be proper if the defendant intentionally opened the door to its admission.” (Ibid.) The court concluded “that in this case defense counsel intentionally openedthe door to the Confrontation Clause violation by her strategictrial 25 decision to introduce the non-testifying driver’s hearsay statement. Accordingly, defendant has waived the right to challenge the admission as error.” (/d. at p. 1284.) In Rogers, defense counsel tried to put before the jury an incomplete version of what the driver had told police—only the part that tended to exonerate the defendant. The trial court (and the appellate court) justifiably concluded, without reference to the truth or falsity of any of the driver’s statements, that the jury would receive an incomplete, misleading account of what the driver had told the police if the prosecution were not allowed to introducethe driver’s other statements to the police—the ones which tended to incriminate the defendant. In the instant case, of course, but for the trial court’s contested ruling, the jury would not have had any account of what Thomas told the police; Ms. Hopson’s counsel sought to exclude all of Thomas’spolice statements, not to introduce an incomplete version of them. And, of course, Ms. Hopson’s counsel did not intentionally open the door to the prosecution’s use of Thomas’s statements. Respondentalso cites anumberofother out-of-state appellate decisions which have held that a criminal defendant opened the door to otherwise inadmissible inculpatory evidence under circumstances similar to Reid and Rogers. (ABM 38, citing State v. Fisher (Kan. 2007) 154 P.3d 455, 481-483 26 [defense counsel’s questioning ofofficer about testimonial hearsay statements of non-testifying declarant opened door to admission of declarant’s entire written statement]; McClenton v. State (Tex.Ct.App. 2005) 167 S.W.3d 86, 93-94 [defense opened door to admission ofstatements ofone codefendant by examining officer as to those statements, but did not open the door as to statements made by second codefendant]; Tinker v. State (Ala.Crim.App. 2005) 932 So.2d 168, 187-188 [defense counsel’s questioning ofofficer about details ofindividual’s statement opened doorto admissionofentire statement]; State v. Brooks (Hawaii Ct.App. 2011) 264 P.3d 40, 51 [defendantnot entitled to introduce selected portions of codefendant’s statement favorable to his defense and, at same time, use Crawford to preclude prosecution from introducing other portions of codefendant’s statement]; Lane v. State (Ind.Ct.App. 2013) 997 N.E.2d 83, 93 [though a defendant can open doorto evidence that otherwise would violate confrontation clause, “there is no indication in the record”that defendantintentionally waived his confrontation rights; therefore, trial court erred in concluding that defendant opened doorto admission of testimonial statement].) The cases on which respondentrelies are all fundamentally different from the case before this court. In each of these cases, the “opening of the door” wasdonebytrial counsel, asking questions ofa witness (usually a police 27 officer) about statements made by an out-of-court declarant. As Ms. Hopson has noted,she did not introduce evidenceofa portion ofThomas’stestimonial hearsay statements andthentry to keep the prosecution from introducing other portions. Moreover,in the case at bar, the defendant’s own testimonyattrial is the basis ofrespondent’s assertion that she waived herright to confrontation by opening the door to the admission of Thomas’s statements. The logical extension of respondent's argumentis that, whenever a defendanttestifies on her own behalf and denies committing a crime, that opens the doorto all mannerof hearsay evidence which contradicts and inculpates the defendant and whichis not be subject to cross-examination. Respondentalso relies on United States v. Lopez-Medina (10th Cir. 2010) 596 F.3d 716 (Lopez-Medina). (ABM 37-39, 40, 43.) In that case, defense counsel, who had stated on the record that he was aware he might be openingthe door to more evidence from the prosecution, asked a police officer on cross-examination about certain information providedto the officer by a confidential informant. (Lopez-Medina,at p. 732.) The prosecution then brought out more information about the confidential informant’s statements on redirect examination, which formedthe basis ofthe defendant’s confrontation clause challenge on appeal. ([bid.) The Tenth Circuit held that, because “[i]t was defense counsel, not the government, whofirst questioned [the officer] 28 regarding the specific information he obtained from the informant, Lopez- Medina cannot now complain [the officer] should not have been allowed to answer the government’s related questions on redirect.” ([bid.) The relevant procedural facts in Lopez-Medina are unusual. In that case, defense counsel expressly told the court: “‘I think, Your Honor,[the governmentis] worried that I am going to bring in the confidential informant information. That’s my full intention. J don’t care what door we open. IfI open up a door, pleasefeelfree to drive into it. But I am goingto explore the entire case.” (Lopez-Medina, supra, 596 F.3d at p. 731, emphasis added.) The Tenth Circuit stated: “It is clear from this statement that defense counsel intentionally relinquished his (or rather, his client's) confrontation right through his questioning of [the witness].” (/bid.) Such a finding cannot be madehere. “Defendants can waivetheir constitutional rights, includingtheright to confront the witnesses against them as protected by the Sixth Amendment.” (United States v. Holmes(8th Cir. 2010) 620 F.3d 836, 842.) “The question ofa waiver ofa federally guaranteed constitutionalrightis, ofcourse, a federal question controlled by federal law. There is a presumption against the waiver of constitutionalrights, [citation], and for a waiverto be effective it must be clearly established that there was ‘an intentional relinquishment or 29 abandonmentofa knownrightor privilege.’” (Brookhart v. Janis (1966) 384 USS. 1,4.) Nointentional relinquishment of Ms. Hopson’s right to confrontation occurred in the case before this court. As of the time that Ms. Hopson testified, she and her counsel were under the impression that Thomas’s statements to the police would not be admitted at trial, even though Ms. Hopson choseto testify. (1 RT 12, 18-19.) The trial court did qualify that ruling “in the event that the prosecution believes that Ms. Hopson may have openedthe door with hertestimony.” (1 RT 19.) Following Ms. Hopson’s testimony on direct examination—in which she wasnot asked about, and made no mention of, any statements Thomas madeto the police (see OBM 17-23; ABM 16-19)—andthefirst part of the prosecutor’s cross-examination, the prosecutor asked the court to admit _ Thomas’s police statements under Evidence Code section 1202 “to impeach the hearsay declarations” which camein through Ms. Hopson’stestimony. (3 RT 422.) Unlike the facts ofLopez-Medina, Ms. Hopson’s counsel madeclear that Ms. Hopson did notintentionally waive her right to confrontation; he characterized her testimonyas going to “her state ofmind as to what happened in the garage, what sheheard the killer say, I don’t think that allowsusto bring 30 in his statements that he told police days later. That was my objection under Crawford.” (3 RT 422-423.) Overruling the defense Crawford objection, the trial court ruled that Thomas’s inconsistent statements couldbe admitted for“that limited purpose.” (3 RT 422-423.) Knowing that Thomas’s statements were coming in on rebuttal, defense counsel “used his redirect to make a preemptive effort at minimizing the evidence” of Thomas’s statements to the police, asking Ms. Hopsonifshe was aware that Thomas had accused herofplanning the events. (ABM 20, citing 3 RT 434.) The prosecution thereafter presented those statements through Detective Wheeler’s testimony on rebuttal. (3 RT 444- 450.) Ms. Hopson submits that, under these facts, where her counsel presented her direct testimony with no expectation that Thomas’s police statements were going to be admitted attrial, and where counsel did not seek to present thejurywith an incomplete or misleading accountofany testimonial hearsay statements, the Court of Appeal erroneously found that Ms. Hopson opened the door to the admission of Thomas’s statements, despite her confrontation clause objection. /// H/ 31 D. The Improper Admission at Trial of Thomas’s Statements through Detective Wheeler Was Not Harmless Beyond a Reasonable Doubt. Ms. Hopson fully set forth in her opening brief on the merits the grounds on which she contends that the trial court error admitting Julius Thomas’sstatements throughthe rebuttal testimony ofDetective Wheeler was not “harmless beyond a reasonable doubt” under the standard set forth in Chapman vy. California (1967) 386 U.S. 18 (Chapman). (OBM 53-57.) Respondent argues that any error in the admission on Thomas’s statements is harmless under Chapman. (ABM 43-46.) Respondentstates that, even without the admission of Thomas’s statements to the police, “there was a mountain of physical and circumstantial evidence establishing that appellant and Thomas killed Brown together.” (ABM 43.) Respondent describesthe allegedly “crushing evidence” against Ms. Hopson. (ABM 44- 45.) In so doing, respondent asserts that “[Ms. Hopson’s] DNA, but not Thomas’s, was on the van’s steering wheel.” (ABM 44,citing 2 RT 196-197.) This is not correct. The DNAevidence was presented in “a DNAstipulation from the DepartmentofJustice,” which was signed by both the prosecutor and defense counsel. (2 RT 195-198.) That stipulation provided, in relevantpart: The DNA from the swab of the steering wheel from Laverna Brown’s van, item 13A1S, is a mixture from at least 32 two people. The major donorprofile matches Laverna Brown’s reference DNAprofile, and Ruthetta Hopson’s reference DNA profile is included as a possible minor donor. Julius Thomasand Darcy Timm are excludedaspossible donors to the minor DNA. (2 RT 196-197; emphasis added.) Ms. Hopson agrees with respondent that there is substantial circumstantial evidence of her involvement with the events surrounding the murder of Brown. For the reasons Ms. Hopsonstated in her opening brief (OBM 54-56), however, she respectfully submits that although the evidence demonstrated her guilt ofsome crimerelating to the death of Laverna Brown, none of that evidence approached the devastating effect of the statements which Detective Wheeler testified Julius Thomas made to the police, especially with their admission occurring during the prosecution rebuttal. Without the admission of Detective Wheeler’s rebuttal testimony concerning what Thomastold theofficers, thejurors mayverywell have found that Ms. Hopson participated in some fashion in the events relating to the > Respondentelsewhere erroneously states: “Appellant’s DNA — butnot Thomas’s — was on the van’s steering wheel.” (ABM 10, citing 2 RT 196- 197.) The significance of the stipulated DNA evidence as to what was found on the steering wheelis not significant in any event. Ms. Hopsontestified at trial that she drove the van, among other things that she did out of fear that Thomas would follow through with the threats he made to harm her and her son if she did not do whathe told her to do. (2 RT 323, 343-346.) 33 murder ofBrown,but the prosecution cannot demonstrate beyond a reasonable doubtthat she would have been convicted offirst degree murder with the two special circumstances foundtrue. The prosecution cannot meet its burden of proving that the guilty verdict in this case “was surely unattributable to the error” at issue in this appeal. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) Ms. Hopson respectfully submits that this court cannot conclude beyond a reasonable doubt that, had the trial court not erroneously permitted the prosecution to present Thomas’s police statements on rebuttal, the verdict of first degree murder and the true findings as to the special circumstances would have been reached. Therefore, the judgment should be reversed. (Chapman,supra, 386 U.S.at p. 24.) M/ // HI HI! Hf 34 CONCLUSION For the foregoing reasons, and as more fully set forth in appellant’s openingbriefon the merits, Ms. Hopsonrespectfully asks this court to reverse the judgment of the Court of Appeal. DATED: July 27, 2016 /s/ Gordon S. Brownell GORDONS. BROWNELL, ESQ. Attorney for Defendant and Appellant RUTHETTA LOIS HOPSON CERTIFICATE OF COMPLIANCE In accordance with California Rules of Court, rule 8.520(c), I certify that my word-processing program indicates that this reply to respondent’s answerbrief on the merits consists of 7,472 words, excluding the tables, the caption, signature blocks, and this Certificate of Compliance. /s/ Gordon S. Brownell GORDONS. BROWNELL,ESQ. Attorney for Defendant and Appellant RUTHETTA LOIS HOPSON 35 PROOF OF SERVICE BY MAIL Re: Ruthetta Lois Hopson, Court Of Appeal Case: D066684, Superior Court Case: RIF1105594 I the undersigned, declare that I am employed in the County of Sonoma, California. I am over the age of eighteen years and not a party to the within entitled cause. My business address is 4968 Snark Ave, Santa Rosa CA. On July 27, 2016, I served a copy of the attached Reply Brief on the Merits (CA Supreme Court) on each of the parties in said cause by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in United States mail at Sonoma, California, addressed as follows: Court of Appeal, 4th District, Division | Hon.Jeffrey J. Prevost Clerk of the Court Judge of the Superior Court 750 B Street, Suite 300 Hall of Justice San Diego, CA 92101 4100 Main Street Riverside, CA 92501 Gregory Roach Ruthetta Lois Hopson Office of the Public Defender WE6518 4200 Orange Street P.O. Box 1508 Riverside, CA 92501 Chowchilla, CA 93610 I declare under penalty of perjury underthe laws of the State of California that the foregoingis true and correct. Executed on this 27th day of July, 2016. Phil Lane (NameofDeclarant) (Signature of Declarant) PROOF OF SERVICE BY ELECTRONIC SERVICE Re: Ruthetta Lois Hopson, Court OfAppeal Case: D066684, Superior Court Case: RIF1105594 I the undersigned, am over the age of eighteen years and not a party to the within entitled cause. Mybusiness addressis 4968 Snark Ave, Santa Rosa CA. On July 27, 2016 a PDF version of the Reply Brief on the Merits (CA Supreme Court) described herein was transmitted to each of the following using the email address indicated and/or direct upload. The email address from which the intended recipients were notified is Service@GreenPathSoftware.com. State of California Supreme Court Office of the Attorney General Supreme Court San Diego San Francisco, CA 94102-4797 San Diego, CA 92186-5266 ADIEService@doj.ca.gov Appellate Defenders Inc. - Criminal Lynelle Hee San Diego, CA 92101 eservice-criminal@adi-sandiego.com I declare under penalty of perjury underthe laws of the State of California that the foregoing is true and correct. Executed on this 27th day of July, 2016 at 08:56 Pacific Time hour. Phil Lane (Name of Declarant) (Signature of Declarant)