Trial court may rely on statements made to the the parole board in a resentencing hearing

THE PEOPLE, Plaintiff and Respondent, v. RODERICK WAYNE MITCHELL, Defendant and Appellant. (Cal. Ct. App., July 22, 2022, No. B308780) 2022 WL 2900929

Summary:  Mitchell filed a petition for resentencing under former section 1170.95 (now § 1172.6).

Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) Mitchell filled out a form saying, “I, Roderick Mitchell, declare as follows: [¶] … [¶] I was not a major participant in the felony or I did not act with reckless indifference to human life during the course of the crime or felony.” Mitchell declared “under penalty of perjury that the above is true” and signed and dated his declaration.

The prosecution opposed Mitchell’s petition and supplied a transcript of the 2017 parole hearing, a probation officer’s report, and relevant police reports.

The trial court admitted the parole hearing transcript and denied the petition.

The Legislature allowed all admissible evidence, which here includes Mitchell’s parole board statements.

The parole process rewards acceptance of responsibility while the resentencing process here rewards a diminished role in criminal events. Despite these differing incentives, the Legislature did not bar consideration of parole hearing statements. There is no statutory or constitutional basis for excluding this evidence. When individuals seek to gain a sentencing advantage, it is fair to examine their own words to see if they deserve it. If they claim their culpability is low but their words show otherwise, this is pertinent.

Parole hearing transcripts are admissible evidence in resentencing hearings

Mitchell argued on appeal that  the incentives facing people seeking parole, and concerns regarding self-incrimination and the burden of proof, make it improper to consider such evidence in proceedings under the statute.

There is no categorical exclusion of a defendant’s sworn parole hearing testimony in this process. The statutory language shows parole hearing transcripts are proper evidence in this setting. Before and after its recent amendment, the statute permitted the parties to rely on “new or additional evidence” in these hearings. (Former § 1170.95, subd. (d)(3) [now § 1172.6, subd. (d)(3)].)

Through Senate Bill No. 775 (2021–2022 Reg. Sess.), effective January 1, 2022, the Legislature clarified the scope of admissible evidence at the evidentiary hearing. (Stats. 2021, ch. 551, § 2.) The statute now specifies the Evidence Code governs the admissibility of evidence. This shows the Legislature focused on the issue of admissibility and made the statute govern these proceedings.

As a matter of statutory wording, then, this parole transcript was proper evidence.

The same result follows when we examine the statute’s purpose. (See People v. Lewis (2021) 11 Cal.5th 952, 962 (Lewis) [construe the statute to achieve its purpose].) The overall goal of the petitioning process here is to make the punishment fit the crime in a precise and particularized way. The Legislature sought to ensure murder culpability is commensurate with a person’s individual actions. (Id. at p. 971.)

The Legislature created a process to ameliorate past excesses that created sentences judged to be too long and to resentence where appropriate. The focus is on examining the truth of what happened to evaluate whether to reduce an individual’s sentence so the punishment fits the crime. (See People v. Gentile (2020) 10 Cal.5th 830, 838–839, 846–847.)

The Legislature meant for trial courts to focus  on the “individual culpability” of each petitioning defendant. (See Stats. 2018, ch. 1015, § 1(d).) “A person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.” (Id., § 1(g).) This is essential to serve the “bedrock principle of the law and of equity” that people be punished only for their own actions. (Id., § 1(d).) Tailoring punishment precisely would address fairly the culpability of the individual and would assist in the reduction of prison overcrowding, which has resulted in part from lengthy sentences that are not commensurate with the culpability of the individual. (Id., § 1(e).)

A parole transcript can be a valuable source of information about a particular defendant’s actions, and thus potentially important in the work of aligning individual punishment with individual culpability. This work benefits from the kind of evidence a parole transcript can provide.

Limited use immunity does not apply to statement made at a parole hearing

Mitchell cited on a line of cases starting with People v. Coleman (1975) 13 Cal.3d 867 (Coleman), in which courts were concerned about using a defendant’s statements at a later criminal trial (or a later point in the original prosecution) and adopted “a limited species of use immunity grounded in California’s constitutional guarantee against self-incrimination.” (People v. Carter (1993) 19 Cal.App.4th 1236, 1248.) (E.g., Coleman, at pp. 876–877, 889, 892 [probationer’s testimony at revocation hearing inadmissible in later criminal trial]; Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 809–810 (Ramona R.) [minor’s statements at juvenile fitness hearing and to probation officer inadmissible in later criminal trial]; In re Jessica B. (1989) 207 Cal.App.3d 504, 520–521 [parent’s testimony in dependency proceedings and statements in court-ordered therapy inadmissible in prosecution for child abuse].)

People v. Myles (2021) 69 Cal.App.5th 688 (Myles) rejected Mitchell’s arguments. Myles held a parole hearing transcript is admissible as “new or additional evidence” under the statute. (Id. at pp. 697–703.) It explained why such a rule is necessary in plea cases and why extending judicially created use immunity to petitioner-initiated collateral proceedings like these is inapt. (Id. at pp. 699, 704–706.) Other  courts have done, and this court  followed Myles’s analysis. (E.g., People v. Anderson (2022) 78 Cal.App.5th 81, 89–93 (Anderson).)

A resentencing) hearing is not equivalent to a criminal prosecution

A petition under former section 1170.95 is not a criminal prosecution. (People v. Silva (2021) 72 Cal.App.5th 505, 520.) It is the opposite of a criminal prosecution. A criminal prosecution can only hurt a defendant and can never help. The process here can only help the defendant and can never hurt.

The statute offers petitioning prisoners the possibility of getting out sooner.

Many constitutional protections that characterize criminal prosecutions do not apply in this ameliorative process. (See People v. James (2021) 63 Cal.App.5th 604, 610 (James) [“we agree with the many courts that have held that a convicted person litigating a section 1170.95 petition does not enjoy the rights that the Sixth Amendment guarantees to criminal defendants who have not yet suffered a final conviction”]; People v. Anthony (2019) 32 Cal.App.5th 1102, 1156 [“the Legislature’s changes constituted an act of lenity that does not implicate defendants’ Sixth Amendment rights”].)

• There is no constitutional right to counsel at the outset of this process. (Lewis, supra, 11 Cal.5th at p. 973.)
• There is no constitutional right to trial by jury. (James, supra, 63 Cal.App.5th at p. 609; cf. People v. Perez (2018) 4 Cal.5th 1055, 1063–1064 [an evidentiary hearing on a petition for resentencing under Proposition 36 does not trigger the right to a jury trial because that legislative act of lenity does not implicate Sixth Amendment rights].)
• There is no constitutional right against double jeopardy. (People v. Hernandez (2021) 60 Cal.App.5th 94, 111.)
• There is no constitutional right against self-incrimination in the process. (See Myles, supra, 69 Cal.App.5th at pp. 704–706; see also People v. Lopez (1999) 71 Cal.App.4th 1550, 1554 [when a defendant has pleaded guilty and time to appeal has run without an appeal, the defendant’s privilege to avoid compelled self-incrimination with regard to the facts underlying the conviction no longer exists].)

Mitchell’s argument for use immunity is built on cases that are tied to the right against self-incrimination. (See People v. Collins (1986) 42 Cal.3d 378, 386 [“Coleman and Ramona R. were concerned with protecting a fundamental constitutional right—freedom from self-incrimination during a criminal trial”]; see also Anderson, supra, 78 Cal.App.5th at p. 91 [“the existence of the defendant’s constitutional privilege against self-incrimination in the subsequent criminal trial was integral to the justification for the exclusionary rule announced in Coleman”]; id. at p. 93 [“Where the privilege against self-incrimination is not implicated, the rationale for immunities at issue in Coleman and Ramona R. disappears”].)

This resentencing process could not even begin until Mitchell gave the court his statement, under oath, about his role in the crime to which he pleaded guilty. (See former § 1170.95, subd. (b)(1)(A) [now § 1172.6, subd. (b)(1)(A)] [to commence the process, petitioning defendants must submit “a declaration by the petitioner”].)

Parole Board Hearings

The parole process emphasizes the importance of voluntary, unvarnished truthtelling. California regulations for parole hearings provide, with our emphasis: “The facts of the crime shall be discussed with the prisoner to assist in determining the extent of personal culpability.” (Cal. Code Regs., tit. 15, § 2236.) But the board “shall not” require an admission of guilt and “shall not” hold a prisoner’s refusal to discuss the crime against the prisoner. (Ibid.)

When there are valid reasons to doubt the probity of a parole hearing statement, the trial judge can hear and appraise arguments in the case’s context and accord the statement due weight. It is fair and indeed sensible to say a convicted person’s own words are pertinent when that person petitions for the benefit of resentencing.

The trial court did not err in considering Mitchell’s parole hearing testimony.

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