Parole hearing testimony may be used in 1170.95 evidentiary hearing
THE PEOPLE, Plaintiff and Respondent, v. RONALD RAY ANDERSON, Defendant and Appellant. (Cal. Ct. App., Apr. 28, 2022, No. A162633) 2022 WL 1261422, at *1
Summary: Anderson was convicted of two counts of first degree murder, two counts of robbery, and one count of burglary, and sentenced to 25 years to life. He appealed the denial of his Penal Code section 1170.95 petition, Anderson argued that the trial court erred by admitting in the section 1170.95 evidentiary hearing, testimony from Anderson’s parole suitability hearings. He argued that the testimony should have been excluded under People v. Coleman (1975) 13 Cal.3d 867 (Coleman). The Court of Appeal concluded that Anderson has not established that the trial court erred in considering testimony from his parole suitability hearings.
Anderson filed a pro se petition seeking relief under section 1170.95 after the Legislature enacted Senate Bill No. 1437. The court issued an order to show cause. Anderson sought to exclude his testimony from prior parole suitability hearings, arguing that such testimony should be excluded under Coleman. The court denied the motion and denied Anderson’s petition, finding the prosecution had established beyond a reasonable doubt that Anderson could be convicted of felony murder as a major participant who acted with reckless indifference to human life and that he could also be found guilty under a direct aiding and abetting theory. Anderson appealed the trial court’s denial of his section 1170.95 petition.
SB 1437 amending the Felony Murder Rule
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.) changed the law of homicide by amending the felony murder rule and the natural and probable consequences doctrine as it relates to murder. (People v. Gentile (2020) 10 Cal.5th 830, 842–843; Stats. 2018, ch. 1015 § 1.) Senate Bill No. 1437 enacted section 1170.95 to provide a procedure for those convicted of felony murder or murder under the natural and probable consequences doctrine prior to Senate Bill No. 1437’s enactment to seek relief. Under the version of section 1170.95 effective at Anderson’s hearing, a person seeking relief had to file a petition in superior court declaring, among other things, that he or she “could not be convicted of first or second degree murder because of changes to Section 188 or 189” (former § 1170.95, subd. (a)(3)); the trial court then had to determine if the petitioner made a prima facie showing that he or she fell within the provisions of the statute, and, if so, it had to issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction and to resentence the petitioner on any remaining counts (id., subds. (c), (d)(1)). At the evidentiary hearing under section 1170.95, subdivision (d)(1), the prosecution had to “prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (Id., subd. (d)(3).)
Admissibility of parole hearing transcripts and Coleman
Anderson contends the court erred in admitting his testimony from prior parole suitability hearings because he should have been afforded use immunity for such testimony. Defendant relies on Coleman and similar decisions to argue that statements made in a parole suitability hearing should be deemed inadmissible in a section 1170.95 evidentiary hearing. In response, the Attorney General cited People v. Myles (2021) 69 Cal.App.5th 688 (Myles) that rejected a similar argument.
In Myles, the defendant relied on Coleman and related authorities to argue that, in her section 1170.95 evidentiary hearing, she was entitled to use immunity for her statements and testimony in connection with her parole suitability proceedings. (Myles, supra, 69 Cal.App.5th at p. 704.)
“In Coleman, the California Supreme Court held a defendant’s statement from a probation revocation proceeding could not be used against him by the prosecution to lighten its burden of proof at trial. The court reasoned that a defendant should not be compelled to choose between the privilege against self-incrimination at trial and the exercise of the right to be heard at a probation revocation hearing. To resolve the tension between competing rights, the court created a ‘ “judicially declared exclusionary rule” ’ that a probationer’s revocation hearing testimony is inadmissible during the prosecution’s case-in-chief. The intent of the rule ‘is to encourage the fullest possible truthful disclosure of relevant facts and circumstances at the revocation hearing by allowing a probationer who does testify at his revocation hearing nonetheless to enjoy unimpaired the full protection of the privilege against self-incrimination at his subsequent trial.’ ” (Myles, supra, 69 Cal.App.5th at p. 705.)
A section 1170.95 hearing, however, ‘ “is not a trial de novo on all the original charges.” Rather, it is a postconviction proceeding “due to the Legislature’s inclusion of section 1170.95 in Senate Bill No. 1437 …, [as] an ‘act of lenity’ allowing for the retroactive application of the new law governing accomplice liability for felony murder for defendants already serving valid sentences for murder.” ’ ” ([People v.] Williams [(2020)] 57 Cal.App.5th [652,] 661, quoting People v. Wilson [(2020)] 53 Cal.App.5th [42,] A sentence modification under section 1170.95 is an act of lenity and not a criminal trial, the wrongful admission of evidence does not implicate defendant’s constitutional rights under the Fifth Amendment.” (Myles, supra, 69 Cal.App.5th at pp. 705–706.)
Myles explained that the Fifth Amendment protects individuals from government coercion, but “defendant was not compelled to file a section 1170.95 petition, nor to testify at her parole hearing, nor to participate in her risk assessment interview. Parole cannot be conditioned on admission of guilt to a certain version of the crime. (§ 5011, subd. (b); Cal. Code Regs., tit. 15, § 2236; In re Swanigan (2015) 240 Cal.App.4th 1, 14 [parole board cannot rely on fact that inmate insists on his innocence to deny parole]; In re McDonald (2010) 189 Cal.App.4th 1008, 1023 [“ ‘the express provisions of Penal Code section 5011 and section 2236 of title 15 of the California Code of Regulations prohibit requiring an admission of guilt as a condition for release on parole’].) … Having chosen to be truthful in the assessment interview and testify truthfully at the parole hearing, it is not fundamentally unfair to admit that information during a resentencing proceeding voluntarily initiated by defendant bearing on some of the same issues.” (Myles, supra, 69 Cal.App.5th at pp. 705–706.)
The United States Supreme Court has held that the Fifth Amendment applies through original sentencing, but has stated that incrimination is complete in cases in which the sentence has been fixed and the judgment of conviction has become final. (Mitchell v. United States (1999) 526 U.S. 314, 326 [“If no adverse consequences can be visited upon the convicted person by reason of further testimony, then there is no further incrimination to be feared.”]; see In re Tapia (2012) 207 Cal.App.4th 1104, 1111, fn. 3 [noting in dicta that parolee’s privilege against self-incrimination ended when his conviction became final].)
The trial court did not err in considering Anderson’s testimony from his parole suitability hearing.