Published date

Monday, July 10, 2017

"CACJ CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE Please respond to: July 10, 2017 JOT-TNT. PHILIPSBORN Law Offices of J.T. Philipsborn The Honorable Jorge E. Navarrete 507 Polk Street, #350 Clerk, California Supreme Court San Francisco, CA 94102 Supreme Court of California 455 Golden Gate Ave., Ground Floor San Francisco, CA 94102 Re: People v. Ryann Lynn Jones, S242855 (Fifth Appellate District, Case No. F068996; Tulare County Superior Court No. VCF219203) LETTER BRIEF OF CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE IN SUPPORT OF PETITION FOR REVIEW FILED BY RYANN LYNN JONES, PETITIONER (CALIFORNIA RULES OF COURT, RULE 8.500(g)) Dear Mr. Navarrete: This letter, permitted by the California Rules of Court, Rule 8.500(g), is submitted by California Attorneys for Criminal Justice (hereafter ‘CACJ’) in support of the Petition for Review filed by Ryann Lynn Jones (hereafter referred to as ‘Petitioner’). Identification of Anzicus Curiae CACJ is a non-profit California corporation, and a statewide organization of criminal defense lawyers. CACJ is the California affiliate of the National Association of Criminal Defense Lawyers, the largest organization of criminal defense lawyers in the United States. CACJ is administered by a Board of Directors, and its by-laws state a series of specific purposes including “to defend the rights of persons as guaranteed by the United States Constitution, the RECEIVED JUL 102017 CLERK SUPREME COURT CACJ CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE Constitution of the State of California, and other applicable law,” and the improvement of “the quality of the administration of criminal law.” (Article IV, CACJ By Laws). CACJ’s membership consists of approximately 1700 criminal defense lawyers from around the State of California and elsewhere, as well as members of affiliated professions. For more than 35 years, CACJ has appeared before this Court as an amicus curiae on matters of importance to the administration ofjustice, and to its membership.’ Interest of CACJ in this matter A significant number of CACJ’s members are regularly involved in the representation of individuals who are pursuing appeals of convictions, sentences, and judgments obtained against them in the many trial courts of the State of California. CACJ has among its past Presidents several of the State of California’s most distinguished, and prolific, criminal case appellate and post-conviction counsel who have practiced in California over the past 35 years or so. Among these past Presidents, as well as among CACJ’s members, there are lawyers who have helped administer some of the largest institutional offices for appellate counsel handling indigent appellate matters in California courts. Also represen CACJ CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE CACJ is lodging this letter to support the Petition for Review filed on June 29, 2017, by Petitioner to support Petitioner’s quest for the Court to address the need for California’s appellate courts to undertake the constitutionally, and otherwise legally, required processes of record and error review, and to rigorously apply the required standards of review, and tests for prejudice. Petitioner seeks to have this Court address these matters in some measure because, as Petitioner notes, they have been brought to the attention of this Court in other litigations (Petition for Review, at page 48). Some of the issues sought to be addressed have been commented upon by Justice Liu in the expression of concern that he sounded in his concurring and dissenting opinion in People v. Jackson (2014) 58 Cal.4th 724, 774-808. ARGUMENT ON THE MERITS Petitioner seeks review of four matters in the context of his case. First, he urges this Court to grant review to address what he argues to be the minimum safeguards that support an ‘adequate and effective’ process on direct appeal. Second, he urges that the Court grant review to determine whether a specified error occurred in his case based on a suggestive identification process that he contends must be reviewed under the appropriate appellate standard. Third, he also contends that review is necessary to properly address errors in addressing alleged misconduct in argument and less thah adequate appellate review of the issue below. Finally, he also seeks review of what he contends were cumulative errors. CACJ is particularly concerned to urge this Court to review Petitioner’s case to address the first of the issues that he has framed for review. This particular issue, and argument, is that this Court should grant review to confirm the necessity for California’s reviewing courts to rigorously apply doctrines and standards applicable to the appellate review process. Petitioner argues California’s appeal process must avoid rulings premised on mischaracterizations of the record. He also seeks the Court’s review to prompt a ruling that instructs against misapplication of incorrect standards ofreview (or application of a legally inappropriate standard ofreview or standard of prejudice), to the issues presented 3 CACJ CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE in a given criminal case appeal. CACJ makes reference here to that portion of the Petition at pp.45-52, including the argument by Petitioner that the Court of Appeal below failed to properly define, and apply, the Chapman v. Caflfornia, supra, 386 U.s. 18, 24, standard in this case. Petitioner offers a highly useful, and comprehensive, discussion of concerns that arise because of the creeping reformulation—by reviewing courts—of standards ofreview applicable to distinct categories of alleged violations of State and Federal constitutional principles that are applicable to appellate review of a criminal conviction and judgment. Petitioner notes that he is synthesizing and reiterating complaints that have been sounded over the years and that have been aimed at failures by reviewing courts in California to engage in an appellate review process that is properly linked to the procedures and processes that have been set out in controlling law. His concern is for reviewing courts to correctly state and apply the allocation of burdens to prove error on appeal and for strict adherence to standard of review defined in Chapman v. Ca4fornia, 386 U.S. 18, 24 (Petition at pages 5 1-52). Petitioner points out that there is a basis for him to be concerned that California’s reviewing courts must engage in a defensible process that should be characterized by rigorous application of the rules, and expected analyses, that are consistent with a strnctured and predictable process of appellate review. As has been pointed out by Justice Liu in his concurring and dissenting opinion in People v. Jackson, supra, 58 Cal.4th, at 775, even members of the United States Supreme Court bench have remarked on the need for California courts to”. . . take care to ensure that their burden allocation conforms to the commands of Chapman” when considering application of the harmless error rule in its Chapman formulation in California capital cases. See the reference to the ‘four justice statement’ also referenced as the statement of Sotomayor, I. in Gamache v. Caflfornia (2010) 562 U.S. 1083, 1085, cited by Justice Liu in his concurring and dissenting opinion in People v. Jackson, supra, 58 Cal.4th, at 775. 4 CACJ CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE In his concurring and dissenting opinion Jackson, Justice Liu also made reference to a now dated, but usefiul, study of the review process conducted in 215 capital cases that explains the linkage, at least in capital case litigation, between the finding of errors, and the use of doctrines of harmlessness to either uphold, or reverse, findings of guilt, or death sentences, in those capital cases. Jackson, 58 Cal.4th, at 805 (Justice Liu’s dissent and concurrence, referencing Kamin, Harmless Error and the Rights/Remedies Split (2002) 88 Va. L.Rev. 1). The concern about the need for an appellate review process that is attentive to a proper review for error together with adherence to the correct standard of review of constitutional errors is, admittedly, not a recently initiated endeavor. See, generally, Green (1999) The Challenge ofHarmless Error, 59 La. L.Rev. 1101; Landes & Posner (2000 Harmless Error, 301. Legal Studies 161. The questions at issue have been studied dating back a number of years. Davies (1982) Affirmed: A Study ofCriminal Appeals and Decision-Making Norms in a California Court ofAppeal, Am. B. Found. Res. 1. 543. See also, generally, Dressier & Michaels (2012) Understanding Criminal Procedure, Volume Two, Adjudication. Petitioner correctly points out that in raising issues that he contends amount to due process violations, given the current approaches used by California reviewing courts, he risks having his claims considered’under ‘a more deferential standard of review’ than the one required by settled law, or, more problematically, he may see the Court use an idiosyncratic and unsupportable iteration of the Chapman harmless error rule. (See Petition at p.10.) As Justice Liu pointed out in his concurring and dissenting opinion in Jackson, appellants in criminal cases have reason to fear a California court’s willingness to imply ‘no reasonable possibility of prejudice’ where the record is silent dr indeterminate on the issue, or recasting phrasing of the Chapman standard. The United States Supreme Court’s discussion in 0 ‘Neal v. McAninch (1995) 513 U.S. 432, is useful because it specifically discusses consideration of the legal question of harmlessness under the Chapman rule. In 0 ‘Neal, the Court 5 CACJ CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE underscored that “. . . in cases of grave doubt as to harmlessness, the petitioner must win. . . .“ Id., at 437-3 8. In making the point, the United States Supreme Court explained that support for this view, and application of the Chapman standard, was rooted in the common law. The Court also acknowledged the evolution of the standards for appellate consideration of errors that rise above the ‘technical errors,’ the natural effect of which is to prejudice the substantial rights of a litigant. Id., at 439-40. The Court there also explained that”.. . precedent suggests that civil and criminal harmless-error standards do not differ in their treatment of grave doubts as to the harmlessness of errors affecting substantial rights.” Ii, at 440-41. In 0 ‘Neal, the United States Supreme Court emphasized the reasoning for disciplined adherence to a properly construed Chapman standard. CACJ respectfully submits that Petitioner is correct to urge the Court to be attentive to the multiple concerns that have been expressed—including by Justices of this Court—when unwarranted reallocations of burdens, reformulations of rules pertinent to the allocation of burdens, and retooling ofrequirements for proof of harmlessness are published in the texts ofreviewing court rulings in California. Justice Liu explained both succinctly and correctly that the Chapman rule carries “. . . its reasonable doubt standard and its allocation of the burden of persuasion. . . .“ Jackson, 58 Cal.4th, at 808 (Liu, J. concurring and dissenting). As Petitioner points out, and as is acknowledged both above here and in the aforementioned Jackson concurrence and dissent, scholarship and research supports the view that a less than rigorous adherence to the Chapman rule has found its way into reviewing court rulings in California. CACI respectfully supports Petitioner in his arguments in this respect and urges this Court to grant review to address the issues presented. 6 CACJ CALIFORNIA ATTORNEYS FOR CRIMiNAL JUSTICE CONCLUSION For the reasons stated here, this Court should grant review. Respectfully submitted, JOHN ~. PHIIJPSBORN ST N K. DUNKLE y T. PHILIPSBORN ChaW, C~LCJ Amicus Curiae Committee State Ba~\No. 83944 Please respond to: JOHN T. PHILIPSBORN Law Offices of J.T. Philipsborn 507 Polk Street, #350 San Francisco, CA 94102 7 CACJ CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE PROOF OF SERVICE I, Melissa Stem, declare: That I am over the age of 18, employed in the County of San Francisco, California, and not a party to the within action; my business address is 507 Polk Street, Suite 350, San Francisco, California 94102. On today’s date, I served the within documents entitled: LETTER BRIEF OF CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE IN SUPPORT OF PETITION FOR REVIEW FILED BY RYANN LYNN JONES, PETITIONER (CALIFORNIA RULES OF COURT, RULE 8.500(g)) (X) By placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Mail at San Francisco, CA, addressed as set forth below; () By electronically transmitting a true copy thereof~ Stephen Greenberg Tulare County Superior Court Attorney at Law 221 South Mooney Blvd P.O. Box 754 Visalia, CA 93291 Nevada City, CA 95959 Counsel for Petitioner Court of Appeal Ryann Lynn Jones Fifth Appellate District 2424 Ventura Street Craig S. Meyers Fresno, CA 93721 Office ofthe Attorney General P.O. Box 944255 Sacramento, CA 94244 Counsel for The People 8 CACJ CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true and correct. Executed this 10th day of July, 2017, at ~~~cico,Ca1ifornia. Melissa Stem"