PEOPLE v. FARWELL

Respondent’s Supplemental Brief

Cal.February 23, 2018

FILED WTH PEMiccs raat du the Supreme Court of the State of California SUPREME COURT THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, V. FILED FEB 2 3 2018 No. $231009 Jorge Navarrete Clerk RANDOLPHD. FARWELL, Defendant and Appellant. Deputy Court of Appeal, Second Appellate District, Division Five No. B257775 Los Angeles County Superior Court No. TA130219 The Honorable Paul A. Bacigalupo, Judge RESPONDENT’S REQUEST FOR PERMISSION TO FILE SUPPLEMENTAL BRIEF AND SUPPLEMENTAL BRIEF XAVIER BECERRA Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General MICHAEL R. JOHNSEN Supervising Deputy Attorney General , SHAWN MCGAHEY WEBB Supervising Deputy Attorney General GARY A. LIEBERMAN Deputy Attorney General State Bar No. 150876 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 269-6010 Fax: (213) 897-6496 E-mail: DocketingLAAWT@doj.ca.gov Gary.Lieberman@doj.ca.gov - Attorneysfor Respondent RECEIVED FEB 22 2018 CLERK SUPREME COURT Respondent respectfully requests permissionto file the attached supplemental brief in response to appellant’s supplemental brief (“ASB”) that wasfiled with permission of the Court on October 23, 2017.! Respondent’s supplemental brief addresses the following two arguments raised by appellant: (1) “this Court should interpret the ‘due process’ clause of the California Constitution to mandate thatthetrial court’s failure to obtain an express, voluntary waiver of the right to a jury trial constitutes a structuralerror that is reversible per se” (ASB 9-14, capitalization and bold omitted); and (2) “should this Court decide it needs to follow the [People v.| Howard [(1992) 1 Cal.4th 1132] approach, the proper ‘standard of prejudice’is the ‘beyond a reasonable doubt’ standard M1 M1 M/ ' Because respondent’s supplementalbrief discusses some authority that is not “new,” as did appellant’s, respondent requests permissiontofile this brief instead of proceeding by way of California Rule of Court 8.520(d). of Chapmanv. California [(1967) 386 U.S. 18]” (ASB 15-17, capitalization and bold omitted). Dated: February 21, 2018 Respectfully submitted, XAVIER BECERRA Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General | MICHAEL R. JOHNSEN Supervising Deputy Attorney General SHAWN MCGAHEY WEBB Deputy Attorney General Attorneys for Respondent LA2016600459 62700550.doc - RESPONDENT’S SUPPLEMENTAL BRIEF Iu the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. RANDOLPH D. FARWELL, Defendant and Appellant. No. $231009 Court of Appeal, Second Appellate District, Division Five No. B257775 Los Angeles County Superior Court No. TA130219 The Honorable Paul A. Bacigalupo, Judge RESPONDENT’S SUPPLEMENTAL BRIEF XAVIER BECERRA Attomey General of California GERALD A. ENGLER Chief Assistant Attorney General LANCEE, WINTERS Senior Assistant Attorney General MICHAELR. JOHNSEN Supervising Deputy Attorney General SHAWN MCGAHEY WEBB Supervising Deputy Attorney General GARY A. LIEBERMAN Deputy Attorney General State Bar No. 150876 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 269-6010 Fax: (213) 897-6496 E-mail: DocketingLAAWT@doj.ca.gov Gary.Lieberman@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page I. A harmless error analysis should be applied in this CASE oe eecccsecsesesereeeseeecsseeesecssenerseeeecsersueeeseessaeessesateaesnesseesaseeees 5 Ai DAWES vec cceecccccccccssesesssesessesessseseelessesstsseseescaeatseseeseess 5 B. SUVONQUXAY ce eeececccsceecetseneeeseneneeseneceueesnseeccessersesetssesnrseaes 7 C. Merritt oe eccccecccececcccsscsccscesceesseecnseeeessecesesuesenessrsesseenaes 9 D. EEVIASE oo eesecceneeuscneeeccneeenceceecenneceaeescnseneceaaesssesateeaeenessans es 10 E, Application to this Case ........ceeeeccesseeseeseeseeeestensees 11 I. The proper standard ofproofis by a preponderance of the evidence..........SL esecessceeseteseacestserseneneecneceaeeseeeeaeeensacsesetenss 12 Conclusion ...cecceccessesssesssesssscecssssssssuesseacssssseesssessesssesstsstesssnearsantesseesesaeessen 14 TABLE OF AUTHORITIES Page CASES Boykin v. Alabama (1969) 395 U.S. 238 voceseceseeseseseessessenessecesesenessesesesesensseneeesseneesereeeeees 10 Chapman v. California (1967) 386 U.S. 18 ..ceeeeesseeseeecetsnecenenereesessesesereneesesecsessnesseeceesaserasseneneeens 12, 13 In re S.N. (2016) 2 Cal.App.Sth 665 oiesessessecssssecerssersecessssssenseessenesssseeesens 12, 13 Nederv. United States (1999) 527 U.S. Licececseesesesecsssseteateeeaseesscsssesessscneesesseceesesesenesassesaneesenapeessasevess 9 People v. Daniels (2017) 3 Cal.Sth 961 voce cece cneeessensteersseessseessesesseerscsssseeesersersensnesseees passim People v. Ernst (1994) 8 Cal.4th 441 oesecessseessssssseseesseesecssserseesesssneenssesesneees passim People v. Howard (1992) 1 Cal.4th 1132eeecesssceseensseseseeseessesseseesssenecessssseceneeseeas 10, 12 People v. Marshall (1996) 13 Cal.4th 799cescsessesessssesessecssassessessessssessesenenenseeeeesersssaeenes 8 People v. Memro (1985) 38 Cal.3d 658 ooo. eseseseeeeseeesstsesssietessereseeesesenesesnesseeeenes seseseteeneeeene 8 People v. Merritt (2017) 2 Cal. Sth 819oceeesseecsecscssesseseeseseessessseensseeneeesseses 5,9, 11, 12 People v. Sapp | (2003) 31 Cal4th 240 occcsecesnsnessccsssssssssesesnsssssesssssessensnsseseessessessenees 12 People v. Sivongxxay (2017) 3 Cal.Sth 151 eeeeseensssereesessssssseseeeeessseseersessseessassesaseeeees passim People v. Watson (1956) 46 Cal.2d 818 voc eecceesesesseseceseassssssescssersscsessessssssnessesseensssseasesesseneerenss 8 TABLE OF AUTHORITIES (continued) Page Rose v. Clark (1986) 478 U.S. S70. cccceseeecceeeseeteeeeceeseeeaeecseeceessseaeseeseeasesedeeesersaseesseeasenaes 8 Sullivan v. Louisiana | (1993) S08 U.S. 275 ee eceeeeceessecceeeceseeseeeersaenecseeceeesaesesessesieeeeeteaeesesesees beveeeanees 9 United States v. Rodriguez (7th Cir. 1989) 888 F.2d 519 oo cccceceeseeccsetecseeeecesseeeecseseeaeeersnersetssenseesseseees 7 STATUTES Evid. Code, § 115... ecceecesseesenseceseeeneeceeeseveeeeeessesesenenssseasiecseeesasseeeasseasaeaearessesas 13 Penal Code, § 190.1 cee ccscccscscessseeescseecessessseceessesecsesereseseesaseseesesatecsessesesseguas 8 Penal Code, § 190.4 vcccccsccssssssseesseessacucsnaveceavecsnecsenersssneessseseneesnesennertuesgtestesssveee8 Welf. & Inst. Code, § 300 oo...cc cccecssesceeeeeeseteeeeseeesseustutussieisitustitneeed?2 CONSTITUTIONAL PROVISIONS Cal. Const, art. 1, § 16 cccccsssccsscscecssecseescesseesieesseevaterseeenseesa deeeeateeteseensvesensensens 10 Cal. Const., art. 1, § 28 wcccsccsseccseccsseceessscsseccsesnsessecessesensesseeesesssseaasessesaseresssees 12 Cal. Const., art. VI, § 13eeecesececsesnecnesseessetenesenseracseaseseresarisiessaterettasessasaeeas 8 California COmStitution........cccccccsssscsccsssccecscececcssssecccenseessesstessssueessseeseeeensnes 8, 10, 11 CourT RULES Cal. Rules of Court, rule 5.682(D)........:ccscccccsssscssecsseeesscesseeseessensecessesseressesersesseses 13 Respondentrespectfully submits this supplemental brief in response to appellant’s supplemental brief (“ASB”) that was filed with permission of the Court on October 23, 2017. lL. A HARMLESS ERROR ANALYSIS SHOULD BE APPLIED IN THIS CASE Appellant contends that this Court should “interpret the ‘due process’ clause of the California Constitution to mandate that the trial court’s failure to obtain an express, voluntary waiverofthe rightto a jury trial constitutes a structural errorthat is reversible per se.” (ASB 9-14, capitalization and bold omitted.) In support of his contention, appellant cites the following decisions by this Court: People v. Daniels (2017) 3 Cal.5th 961, People v. Sivongxxay (2017) 3 Cal.S5th 151, People v. Merritt (2017) 2 Cal.5th 819, and People v. Ernst (1994) 8 Cal.4th 441. Respondent will discuss each of these cases in turn, and then discuss their application to the instant case. In sum, such cases are plainly distinguishable, and reinforce respondent’s position that a harmless error analysis should be applied here. A. Daniels Daniels represented himself, and was convicted of murder following a court trial and sentenced to death. (Daniels, 3 Cal.5th at pp. 966, 986.) He contended that the record did not reflect a valid waiverof his right to a jury trial in favor of a bench trial. Although Daniels had expressly waived a jury trial, he argued that his waiver “was infirm because the record d{id] not demonstrate he made his waiver with full awareness of the nature of the right being relinquished.” He complained that the court did not inform him that a jury would be “comprised of 12 impartial members who must reach a unanimousverdict, nor did it explain the consequencesof a hung jury.” (Id. at pp. 986, 990.) This Court reversed Daniels’s judgment of death but affirmed his judgmentof guilt. (/d. at pp. 966-967, 1003.) The lead opinion of Justice Cuélar, joined by Justices Werdegar and Liu, concluded that the record failed to demonstrate a knowing and intelligent waiver of a jury trial as to both the guilt and penalty phases, and that the error was structural. (Daniels, 3 Cal.5th at pp. 967, 986, 1006.) Justice Cuéllar noted that this Court will “uphold the validity of a jury waiverif the record affirmatively showsthat it is voluntary and intelligent underthe totality of the circumstances.” (/d. at p. 991, italics in original, internal quotation marks omitted.) This Court “examin[es] factors such as the nature of the colloquy priorto the [trial] court’s acceptance of a waiver, the presence of counsel and references to discussions between the defendant and counsel regarding the jury right, and the existence and contents of a written waiver.” (/bid.) Justice Cuéllar foundit to be “striking” that the trial court had “accepted Daniels’s waiver without ever inquiring as to Daniels’s understanding of any substantive aspect of what a jury is.” (Ud. at p. 995, italics in original.) Justice Cuéllar also observed that “[a] proper weighingofthe totality of the circumstances forcesus to take into account Daniels’s lack of representation[.]” (/d. at p. 996.) The concurring and dissenting opinion of Justice Corrigan, joined by Chief Justice Cantil-Sakauye and Justice Chin, concluded that under the totality of the circumstances, Daniels knowingly andintelligently waived a jurytrial as to both the guilt and penalty phases. (Daniels, 3 Cal.Sth at pp. 967, 1010, 1028.) Justice Corrigan observed that Daniels had received “repeated admonitions” stressing that court and jurytrials are different (id. at pp. 1019-1020), and that thetrial court was not constitutionally required to “go further and enumerate specifics”(id. at p. 1020). Daniels’s prior experience with the criminaljustice system also supported a conclusion of a knowing andintelligent waiver. (/d. at p. 1023.) In addition, Justice Corrigan noted that this Court has “never imposed a higher standard for a knowing andintelligent waiver underthe state Constitution than that established by the United States Supreme Court.” (/d. at p. 1020) In her concurring and dissenting opinion, Justice Kruger concluded that as to the guilt phase, but not the penalty phase, the record “sufficiently demonstrate[d] that [Daniels’s] choice to waive his right to jury trial... was made with eyes open.” (Daniels, 3 Cal.Sth at p. 1029, internal quotation marks omitted.) B. Sivongxxay Following a court trial, Sivongxxay was convicted of murder and sentencedto death. (Sivongxxay, 3 Cal.Sth at p. 157.) He had expressly waived jury trial, but contended his waiver was not knowingand intelligent. (/d. at pp. 164, 166.) In finding that Sivongxxay had made a valid waiver, this Court observed that its precedent “has not mandated any specific method for determining whether a defendant has made a knowing andintelligent waiver of a jury trial in favor of a benchtrial. We instead examine the totality of the circumstances.” (/d. at p. 167.) This Court held that the trial court’s failure to mention certain characteristics of a jury trial (juror impartiality and unanimity) did not render Sivongxxay’s waiver constitutionally infirm. (/d. at pp. 168-169.) At the same time, this Court “emphasize[d] the value of a robustoral colloquy in evincing a knowing,intelligent, and voluntary waiverofa jury trial.” (Sivongxxay, 3 Cal.Sth at p. 169.) Its guidance, however, “pertain[ed] only to waiver of a jury trial in favor of a benchtrial.” (/d. at p. 170.) This Court also cited with approval language in United States v. Rodriguez (7th Cir. 1989) 888 F.2d 519, 527,that “‘[l]esser (even no) warnings do notcall into question the sufficiency of the waiverso far as the Constitution is concerned.’” (Sivongxxay, at p. 170, italics added.) “Reviewing courts must continue to considerall relevant circumstancesin determining whethera jury trial waiver was knowing,intelligent, and voluntary.” (/bid.) Sivongxxayalso raised a claim of state-law error under People v. Memro(1985) 38 Cal.3d 658, contending that his “general juror waiver [could not] be understood as incorporating a knowingandintelligent surrenderofhis right to a jury trial concerning the [special circumstance] allegation.”! (Sivongxxay, 3 Cal.Sth at p. 170.) For errorsof state law, the California Constitution “imposes upon [a] court an obligation to conduct ‘an examination of the entire cause’ and reverse a judgment below for error only upon determiningthat a ‘miscarriage ofjustice’ has occurred.” (Id. at p. 178, quoting Cal. Const., art. VI, § 13.) As a generalrule, a defendant “must demonstrate thatit is ‘reasonably probable that a result more favorable to [the defendant] would have been reached in the absence of the error.’” ([bid., quoting People v. Watson (1956) 46 Cal.2d 818, 836.) “Categorization of an erroras structural represents ‘the exception and not the rule.” (/bid., quoting Rose v. Clark (1986) 478 U.S. 570, 578.) The Sivongxxay court cited with approval language in People v. Marshall (1996) 13 Cal.4th 799, 851, that “‘[t]here is a strong presumption any error’ is susceptible to harmless error analysis.” (Sivongxxay, at p. 178.) “The fact that an error implicates important constitutional rights does not necessarily makeit structural.” (bid.) In finding that the Memroerror wasnotstructural, the Sivongxxay court stated: ‘In Memro, this Court construed Penal Code sections 190.1 and 190.4 as requiring a “‘separate, personal waiver’ oftheright to a jury for a special circumstance allegation, above and beyondthe standard guilt phase and penalty phase waiver.” (Sivongxxay, 3 Cal.5th at p. 176, citing Memro, 38 Cal.3d at p. 704.) This error did “not necessarily render [defendant’s] criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” [Citation.] Nor are the effects of this lapse “necessarily unquantifiable and indeterminate.” [Citation.] On the contrary, we are more than capable of scrutinizing the record to ascertain whetherit reveals a reasonable probability that defendant would have demanded a jurytrial for the special circumstance allegation, had no Memro error occurred. (Sivongxxay, 3 Cal.Sth at p. 180, quoting Neder v. United States (1999) 527 USS. 1, 9, and Sullivan v. Louisiana (1993) 508 U.S. 275, 282,italics in original.) CC. Merritt In Merritt, the trial court failed to give the standard jury instruction on the elements of robbery, and instead instructed only on the required mental state. (Merritt, 2 Cal.Sth at p. 824.) This was “very serious constitutional error becauseit threaten[ed] the right to a jury trial that both the United States and California Constitutions guarantee.” (/bid.) It was nevertheless amenable to harmlesserror analysis. (/d. at p. 831.) The United States Supreme Court has “‘recognized that “most constitutional errors can be harmless.” [Citation.] “[I]f the defendant had counsel and wastried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.”’” (/d. at p. 826, quoting Neder, 527 U.S. at p. 8.) The Merritt court held: “[S]o long as the error does notvitiate all of the jury’s findings, it is amenable to harmless error analysis.” Theerror there “vitiated some of the jury’s findings, but not all of them.... Perhaps crucially, it did not vitiate the finding on the only contested issue attrial: defendant’s identity as the perpetrator.” (Merritt, at p. 829, italics in original.) On the other hand, “an instructional error or omission that amounts to the total deprivation of a jury trial would bestructural error[.]” (Ud. at p. 830,italics in original.) D. £rnst In Ernst, this Court held that its decision in People v. Howard (1992) 1 Cal.4th 1132, “did notalter the long-established rule that, by virtue of the explicit language of the California Constitution, a judgment in a criminal caseresulting from a courttrial mustbe reversedif the defendant did not expressly waive the right to a trial by jury.”? (Ernst, 8 Cal.4th at p. 443, italics added.) The state Constitution “permits the defendant and the prosecution to waivetheir right to a jury and elect a court trial, but specifies the following mannerfor doing so: ‘A jury may be waived in a criminal cause by the consentof both parties expressed in open court by the defendant and the defendant’s counsel.’” (Id. at p. 445, quoting Cal. Const., art. I, § 16, italics in original.) Thus, “the precise terms of the California Constitution refute[d] the People’s suggestion that this court should apply a totality-of-the-circumstancestest” in such a case. (/d. at p. 448.) In so holding, this Court was “mindful of the People’s contention that requiring reversal of the judgment in [that] case would create ‘an anomaly in the law,’ because ‘an omission of an express waiverofa jury trial by a defendant who pleads guilty . .. would be reviewed underthe federal * Howard considered the validity of a defendant’s admission of a prior prison term allegation, and held “the requirement under federal law set forth in Boykin v. Alabama (1969) 395 US. 238 . . .— that the record of the taking of a plea of guilty affirmatively establish that the plea was intelligent and voluntary ~- maybesatisfied despite the trial court’s failure to elicit from the defendant explicit waivers of the defendant’s rights to confrontation andtrial by jury, andofthe privilege against self- incrimination.” (Ernst, 8 Cal.4th at p. 445, citing Howard, | Cal.4th at p. 1178.) 10 totality of the circumstancestest, while a similar omission involving a defendant whogives up only his right to a jury, and proceedsto a court trial with all other rights intact, would be reversible perse.’” (Ernst, 8 Cal.4th at p. 446,italics in original.) “[W]hether or not such a result is anomalous,” this Court concluded that “reversal of a conviction resulting from a court trial not preceded by an express waiverofthe right to jury trial is required by the terms of our state Constitution.” (bid.) E. Application To This Case Theinstant case is plainly distinguishable from the abovecases. Unlike the defendants in Daniels, Sivongxxay, and Ernst, appellant had a jury trial on the vehicular manslaughter count (CT 160) — the sole contested charge against him. Further, unlike the defendant in Daniels, appellant was represented by counsel. (CT 116.) Unlike the defendant’s jury in Merritt, appellant’s jury was properly instructed. And aside from Ernst — where the terms of the California Constitution explicitly dictated otherwise — each of these cases applied a harmless error analysis. Appellant asserts, “This court’s determination that the [California Constitution’s] ‘due process’ clause requires an automatic reversal when there is no express .. . jury waiver... would resolve the disturbing anomaly noted in Ernst.” (ASB 11.) Respondent disagrees. A rational reason may exist for the state Constitution’s requirement of an express waiverofa jury trial in favor of a court trial — both sides must agreetoit. However, in the guilty plea context, by definition,notrial is necessary. Moreover, the position advanced by appellant could result in unjustified reversals where, as here, the record shows the defendant knew whatrights he was giving up despite the absence of an express waiver. Appellant’s further rhetoric that there was a “total deprivation of a jurytrial in the case at bar” (ASB 11) ignores the fact that he had a jurytrial. 1] Thus, this Court’s decisions in Daniels, Sivongxxay, Merritt, and Ernst reinforce respondent’s position that a harmless error analysis should be applied in the instant case. II. THE PROPER STANDARD OF PROOFIS BY A PREPONDERANCE OF THE EVIDENCE Appellant alternatively contends, “should this Court decideit needsto follow the Howard[totality of the circumstances] approach, the proper ‘standard of prejudice’ is the ‘beyond a reasonable doubt’ standard of Chapmany. California [(1967) 386 U.S. 18].” (ASB 15-17, capitalization and bold omitted.) In support of this contention, appellant cites the cases of People v. Sapp (2003) 31 Cal.4th 240, and Jn re S\N. (2016) 2 Cal.App.5th 665. His reliance on those cases is unavailing. The proper standard of proof hereis by a preponderance ofthe evidence. In Sapp,this Court observed that the “[vJoluntariness [of a confession] does not turn on any one fact . . . but rather onthetotality of [the] circumstances.” “Under federal standards, the prosecution must demonstrate the voluntariness of a confession by a preponderanceofthe evidence. California courts use this standard for crimes committed after the June 8, 1982, enactmentofarticle I, section 28 of the California Constitution, which . . . prohibits the exclusion in criminal cases of relevant evidence not required to be excluded under the federal Constitution. But for crimes committed before article I, section 28’s .. . enactment, the prosecution must prove voluntariness beyond a reasonable doubt.” (Sapp, 31 Cal.4th at p. 267, internal quotation marks, citations, anditalics omitted.) In S.N., the Court of Appeal held that the juvenile court violated a mother’s due process rights whenit failed to obtain a valid waiver of her right to a contested jurisdictional hearing. (S.N., 2 Cal.App.5th at p. 671.) Evenif a parent does not contest the allegations in a Welfare and 12 Institutions Code section 300 petition, the court “must advise the parent of the parent’s rights to receive a hearing ontheissues raised by thepetition, to assert any privilege against self-incrimination, to confront and cross- examine witnesses, to compel witnesses’ attendance, and to have the child returned if the court finds that the child does not come within the Jurisdiction of the juvenile court[.]” (S.N., at p. 671, citing Cal. Rules of Court, rule 5.682(b).) “Because the due process rights protected by these rules implicate a parent’s fundamental right to care for and have custody of his or her child,” the S.N. court held “‘it is error of constitutional dimension to accept a waiverof the right to a contested jurisdictional hearing based only on counsel’s representations. Where sucherror occurred, [an appellate court] mayaffirm only if the error is harmless beyond a reasonable doubt.” (/d. at p. 672, citations omitted.) The abovecases do notassist appellant. It is well established that in a criminal proceeding, “explicit waivers of the defendant’s rights to confrontation andtrial by jury, and ofthe privilege againstself- incrimination ... are required understate law,” not federal law. (Ernst,- 8 Cal.4th at p. 445.) The Chapman beyond a reasonable doubt standard does not apply to errors of state law. Because the question here is whether the record shows appellant’s stipulation was voluntary andintelligent under the totality of the circumstances (see Daniels, 3 Cal.5th at p. 991), the proper standard of proof is by a preponderanceof the evidence (see Evid. Code, § 115 [“Except as otherwise provided by law, the burden of proof requires proof by a preponderanceof the evidence”]). 13 CONCLUSION For the foregoing reasons, and those set forth in respondent’s Answer Brief on the Merits, the decision of the Court of Appeal should be affirmed. Dated: February 21, 2018 Respectfully submitted, XAVIER BECERRA Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General LANCEE. WINTERS Senior Assistant Attorney General MICHAEL R. JOHNSEN Supervising Deputy Attorney General SHAWN MCGAHEY WEBB Supervising Deputy Attorney General Deputy Attorney General Attorneysfor Respondent LA2016600459 62700663.doc 14 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S SUPPLEMENTAL RESPONDENT?’S uses a 13-point Times New Roman font, and contains 2,672 words. Dated: February 21, 2018 XAVIER BECERRA Attorney General of California GARY A. LIEBERMAN Deputy Attorney General Attorneysfor Respondent 15 DECLARATION OF SERVICE Case Name: People v. Randolph D. Farwell No.: §231009 ] declare: I am employed in the Office of the Attorney General, whichis the office of a member of the California State Bar, at which member’s direction this service is made. I am 18 years of age or older andnot a party to this matter. I am familiar with the businesspractice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, 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. On February 21, 2018, I served the attached RESPONDENT’S REQUEST FOR PERMISSION TO FILE SUPPLEMENTAL BRIEF AND SUPPLEMENTALBRIEF,by placing a true copy thereof enclosed in a sealed envelopein the internal mail system of the Office of the Attorney General at 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, addressed as follows: Jonathan B. Steiner Executive Director Kent Scheidegger California Appellate Project (LA) Criminal Justice Legal Foundation 520 South Grand Avenue, 4th Floor 2131 L Street Los Angeles, CA 90071 Sacramento, CA 95816 Court of Appealof the State of California Second Appellate District Division Five Samantha Borghi Deputy District Attorney 300 South Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 Sherri R. Carter Clerk of the Court Los Angeles County Superior Court 111 North Hill Street Los Angeles, CA 90012 For delivery to Hon. Paul A. Bacigalupo, Judge Los Angeles County District Attorney's Office 211 West Temple Street, Suite 1200 Los Angeles, CA 90012 On February 21, 2018, I caused the original and eight (8) copies of the RESPONDENT’S REQUEST FOR PERMISSION TO FILE SUPPLEMENTAL BRIEF AND SUPPLEMENTAL BRIEF,in this case to be delivered to the California Supreme Court at 350 McAllister Street, First Floor, San Francisco, CA 94102-4797 by GOLDEN STATE OVERNIGHT CARRIER,Tracking # GSOAB108733442. I declare under penalty of perjury underthe lawsofthe State of California the foregoing is true and correct and that this declaration was executed on February 21, 2018, at Los Angeles, California. C. Esparza Lt Lager Declarant Signature/) LA2016600459 52816186.docx