In the most concrete example of change wrought by Governor Jerry Brown’s two newest Supreme Court appointees, those two justices today form half of a 4-3 majority reversing a death penalty that had been affirmed before they took the bench. In People v. Grimes, the court — with the two new justices — had granted rehearing after its first opinion over 19 months ago.
One of the new justices — Leondra Kruger — writes today’s opinion that affirms the conviction and special circumstance findings, but reverses the death penalty because the trial court had excluded statements that the Supreme Court holds should have been admitted under the hearsay exception for statements against the declarant’s interest. Because it concludes that, under any possible standard, the erroneous exclusion was not prejudicial in the guilt phase of the trial but was prejudicial in the penalty phase, the court does not decide the impact of the Attorney General’s failure to make a harmless error argument. The effect of that omission divided the court when the court first decided the case, and also in another case at the end of last year.
Chief Justice Tani Cantil-Sakauye writes a concurring and dissenting opinion, which Justices Ming Chin and Carol Corrigan join. She writes, “On rehearing, I have given careful reconsideration to these issues and find even more reason now to conclude that the trial court did not abuse its discretion in excluding one of these statements, and no reasonable possibility that introduction of the other proffered evidence would have affected the outcome at the guilt or penalty phases of defendant’s trial.” The separate opinion claims that “[t]he majority’s expansion of the against-interest exception represents a significant and . . . misguided shift.”