Gov. Jerry Brown's two newest appointees to the California Supreme Court provided enough votes Wednesday for reconsideration of a death penalty case, the first example of the impact Brown is having on the state's highest court.
In a ruling issued in early January, the state high court decided 4 to 3 to uphold the death sentence of Gary Lee Grimes, a Shasta County man who participated in a 1995 home invasion that resulted in the killing of Betty Bone, 98.
Grimes' defense attorney asked the newly reconstituted court to reconsider, a request that is routinely denied except at times of court turnover.
In a brief order Wednesday, the court announced it would reconsider the case. Cuellar and Krueger joined two of the previous dissenters in deciding to rehear the appeal.
The three dissenting justices in January's ruling were Goodwin Liu, whom Brown appointed in the last term; Kathryn Mickle Werdegar, a moderate Republican appointee; and an appeals' court jurist assigned temporarily to the court to fill a vacancy.
Four votes are needed for reconsideration.
In the Grimes case, an accomplice who committed suicide had said he killed Bone — and only his DNA was found on a weapon. Regardless of who actually killed her, Grimes was legally subject to the death penalty.
The jury found him guilty. During a separate proceeding to decide whether Grimes should be sentenced to death or life in prison without parole, the trial judge excluded testimony that would have shored up evidence that Grimes was not the actual killer.
Chief Justice Tani Cantil-Sakauye, writing for the majority, said the excluded evidence would not have changed the jury's mind about the death sentence.
"We conclude that the exclusion of … statements regarding defendant's lack of participation in the killing was harmless beyond a reasonable doubt," Cantil-Sakauye wrote.
Werdegar, Liu and the other justice would have upheld the guilty verdict but overturned the death sentence.
They said testimony that Grimes did not perform the killing might have swayed the jury to spare his life.