Opinion
F085257
04-12-2024
THE PEOPLE, Plaintiff and Respondent, v. JESUS ANTONIO FELIX, Defendant and Appellant.
Richard M. Oberto, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ivan P. Marrs and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. CR-19-001643, Linda A. McFadden, Judge.
Richard M. Oberto, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ivan P. Marrs and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DETJEN, J.
INTRODUCTION
Petitioner Jesus Antonio Felix petitioned the trial court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code, for resentencing on his conviction for second degree murder (§ 187). (People v. Felix (Oct. 21, 2021, F079901) [nonpub. opn.] (Felix).) The court conducted an evidentiary hearing (§ 1172.6, subd. (d)(3)) and denied the petition on the ground petitioner "would still be convicted of second degree murder under the current law as it relates to homicide," because he was a major participant in the underlying crime who acted with reckless indifference to human life and was an aider and abettor to the murder.
Undesignated statutory references are to the Penal Code. Former section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We refer to the current section 1172.6 in this opinion.
On appeal, petitioner contends evidence was erroneously admitted at the evidentiary hearing. He argues admission of the preliminary hearing transcript violates state evidentiary law and his confrontation rights under the federal Constitution, and admission of his prior statements made before the Board of Parole Hearings (parole board hearings or parole hearings) violated (1) his rights against involuntary admissions under the state and federal Constitutions; (2) his due process rights under the state and federal Constitutions pursuant to the use immunity doctrine; and (3) double jeopardy prohibitions under the state and federal Constitutions. Additionally, he contends the trial court's ruling was erroneously based on a hypothetical jury's view of the evidence, and not the court's own determination that the evidence proved, beyond a reasonable doubt, that he is guilty of murder under a valid theory.
We reject petitioner's contentions and affirm.
FACTUAL BACKGROUND
We briefly summarize the evidence presented at the evidentiary hearing.
I. Preliminary Hearing Transcript
Several eyewitnesses testified at the preliminary hearing. Their testimony is summarized as follows. "On September 15, 1988, petitioner and codefendant John Moses Ruiz sought drugs at a room at [a hotel] where several people were present. When they knocked on the door, [Jorge Rios] Ortiz answered. Petitioner asked for 'coke,' and Ortiz went to a drawer, where he picked up a baggie containing a white substance that he brought to the doorway. After drugs and money were exchanged, petitioner and Ruiz attempted to push the door open and barge into the hotel room. Ortiz and a companion, Daniel V., attempted to push the door shut. During the struggle, a gunshot was fired through the door, striking Ortiz in the chest. Petitioner then entered the room and pointed a gun at Daniel. After an exchange of words, petitioner shot Daniel in the chest. Petitioner and Ruiz then fled. Ruiz was seen fleeing with a rifle and petitioner was seen putting something in his waistband. Ortiz died from his gunshot wound, but Daniel survived." (Felix, supra, F079901.)
"Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first name. No disrespect is intended."
II. Change of Plea Hearing
On February 21, 1989, petitioner pled guilty to second degree murder on count I and admitted the personal use of a firearm allegation. The remaining counts were dismissed. Defense counsel stipulated that the preliminary hearing transcript contained a factual basis for the plea.
III. Parole Board Hearing Transcripts
A. June 5, 2001
At a parole board hearing on June 5, 2001, petitioner testified under oath that he did not shoot either victim and did not have a gun. He admitted using heroin on the date of the incident. He explained that he tried to go into the hotel room because Ortiz sold him $40 worth of heroin that was no good, and he wanted more heroin or his money back. Individuals inside pushed him back and closed the door on his foot. Ruiz saw that petitioner was stuck and retrieved a rifle from his car. Petitioner yelled for help and yelled that they were going to cut off his leg. He may have told Ruiz to shoot. Ruiz fired once and, thereafter, petitioner fled.
B. December 2, 2009
At a parole board hearing on December 2, 2009, petitioner testified under oath that he was using cocaine and heroin at the time of the incident. Petitioner again testified that there was an issue with the heroin he paid for and he went to the room to try to get more. People in the room pushed him and his leg got stuck in the door. When they started pushing the door shut, petitioner yelled and Ruiz shot the door, resulting in injury to Ortiz. Petitioner knew that Ruiz was armed. He denied being armed himself.
C. November 9, 2012
At a parole board hearing on November 9, 2012, petitioner again testified under oath that he was using cocaine and heroin at the time of the incident. He went to the hotel room because he did not feel he had gotten the drugs that he paid for and he wanted to continue to party. He was armed for his own protection. Petitioner stated that he understood what he had done, which was "killed someone, and . . . almost . . . put somebody else in the hospital." Petitioner testified that he bought the gun two or three days prior for $20 and also had bullets for it.
D. July 22, 2014
At a parole board hearing on July 22, 2014, petitioner testified that he went to the hotel with Ruiz and a woman to pick up cocaine and heroin. He had used drugs that morning but, by the time he went to the hotel, he was withdrawing. He bought $20 worth of cocaine and $20 worth of heroin. What he received was very small. He went back to the room and started an argument. He was armed for protection with a loaded .22-caliber firearm that he had received two or three days earlier in exchange for a $20 "fix." The gun was defective and would not fire. Petitioner never fired the gun. Ruiz had a rifle in the trunk of his car. When the fighting started, Ruiz retrieved the rifle from the trunk and came back to the room. By that time, petitioner's left leg, which was affected by polio, was stuck in the door as the individuals inside tried to push it shut. Petitioner yelled at them to let go of the door because they were hurting him, but they kept pushing.
Someone yelled, "[C]ut, cut, cut," and "Cut his leg. Cut his leg." At that point, Ruiz shot through the door. The bullet hit Ortiz and a piece of the bullet also hit Daniel. Only one shot was fired. Petitioner saw Ortiz bleeding on the floor and fled. Petitioner denied ever telling Ruiz to shoot.
Petitioner acknowledged making a statement while in jail that Ortiz refused to give him more drugs or his money back, and petitioner then grabbed Ortiz by the neck, pulled the pistol from his pants, and poked Ortiz in the ribs. Petitioner testified that he made this statement while going through withdrawals and after his father had recently been killed by the mafia. He made the statement to minimize the crime.
IV. Petitioner's Testimony
Petitioner testified at the evidentiary hearing that he went to the hotel with Ruiz and a woman on the date of the incident around 4:30 p.m. He went to Daniel's room to buy cocaine. There, petitioner gave Ortiz $120 for an "eight ball." Ortiz gave petitioner a bag of drugs, which petitioner perceived to be light. Petitioner asked for more drugs or his money back. Ortiz said, "You take it or leave it," and petitioner responded, "I don't want it." Ortiz replied, "You already got it," and tried to close the door. Petitioner tried to push the door to keep it open. Petitioner put the drugs in his shirt pocket. He tried to grab Ortiz but three other men came to help him. The men pushed the door and petitioner's left leg got stuck. Petitioner grabbed the doorknob and door frame. He asked the men to let go but they would not. He took his pistol from his pocket and said, "Let it go because you are hurting my leg." The men kept pushing the door. Petitioner heard a blast on his shoulder and the door loosened immediately. Because petitioner was pushing the door in, he immediately went into the room. Daniel grabbed his chest and said, "You shot me" in Spanish. Ortiz was on the floor, in a sitting position against the door hinges. Petitioner saw blood. Ruiz came in and petitioner said, "Let's go, let's go." They then fled.
He denied that there were two shots. He denied shooting Daniel or shooting a firearm at all.
PROCEDURAL HISTORY
"On December 28, 1988, the Stanislaus County District Attorney filed an information charging petitioner and Ruiz with the murder of Ortiz (§ 187; count I), the premeditated attempted murder of Daniel (§§ 187, 664; count II), robbery (§ 212.5; count III), and burglary (§ 459; count IV). As to all four counts, the information alleged petitioner personally used a firearm (§ 12022.5). As to counts II through IV, the information alleged petitioner inflicted great bodily harm upon the victim (§ 12022.7).
"[As stated, on] February 21, 1989, petitioner entered a guilty plea to second degree murder on count I and admitted the personal use of a firearm with respect to that offense. The remaining counts were dismissed. On March 21, 1989, petitioner was sentenced to a term of 15 years to life for the murder, and an additional two-year term for the firearm enhancement." (Felix, supra, F079901.)
On February 20, 2019, petitioner filed a petition for resentencing pursuant to section 1172.6. The court initially denied the petition at the prima facie stage on the ground petitioner was a major participant in the offense. On appeal, we reversed the order denying the petition and remanded with directions to issue an order to show cause and conduct such proceedings as necessary under section 1172.6, subdivision (d). (Felix, supra, F079901.)
On remand, the trial court issued an order to show cause and further briefing was filed. The court conducted an evidentiary hearing and once again denied the petition for resentencing.
In its written ruling denying the motion, the court found that "the statement by petitioner . . . was riddled with inconsistent statements." The court also found the following facts regarding the offense:
"Petitioner and his co-responsible were at the [hotel]. They both went to [the] room . . . where the victim was staying with the intent to rob the victim of money and drugs. Both petitioner and his co-responsible were armed with loaded operable firearms. When they tried to force their way into the room, the people inside the room tried to stop them. Petitioner encouraged his co-responsible to shoot through the door and his coresponsible shot and killed the victim. While the victim was dying on the floor, petitioner went into the room, took the drugs from the victim. At some point, while in the room, petitioner shot another person who was in the room in the chest."
Based on these factual findings, the court originally found petitioner "could still be convicted of second degree murder under the current law as it relates to homicide." More specifically, the court found petitioner was "clearly" a major participant in the crime and an aider and abettor to the murder. On these points, the court adopted the People's written arguments and found petitioner "helped to plan the crimes, was armed with a firearm and shot [Daniel], he was aware of the dangers of the crime and his coresponsible's willingness to use lethal force, he was present during the crimes, [and] he did nothing to mitigate his involvement in the killing after the murder." The court also found petitioner acted with reckless indifference to human life "as he knew that a gun would be used and even continued into the room after Mr. Ortiz was shot, he was present during the shooting, he knew his co-responsible would use lethal force and he even encouraged him to do so, and he did nothing to minimize the risk of violence or to aid the victims." Finally, the court found petitioner was an aider and abettor to the murder "as he acted with knowledge and shared the unlawful purpose of his co-responsible to rob the victims for money and drugs, he knew his co-responsible had a rifle and was going to use it, he encouraged his co-responsible to use the rifle and he used his own firearm during the robbery." On these bases, the petition was denied.
At a hearing after the court issued its written ruling, the People asked the court to change the phrase "could still be convicted of second degree murder" to "would still be convicted of second degree murder," based on language from People v. Clements (2022) 75 Cal.App.5th 276. The court stated, "I didn't know there was a difference in could or would. I guess I meant he would as he could, if that makes sense. He would because he could, because under the laws as it stands, seems like it's the same to me, but, yes, he would still be convicted. And I will go ahead and we'll make that change to the [c]ourt's ruling." The court continued, "But I did find, [petitioner], that . . . the facts . . . would mean that you would be convicted still of the murder as the law stands because you were a substantial participant in you aided abetted and helped instigate the entire situation. So that's what this Court believes happened beyond a reasonable doubt given all the facts and all the evidence that was presented. I do appreciate your being here and Counsel's work on your behalf and everything, but I do think that this wouldn't change at all what happened if this were to go [to] jury trial today under the current standards."
DISCUSSION
I. Applicable Law Regarding Section 1172.6
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (20172018 Reg. Sess.) (Senate Bill No. 1437) "to amend the felony murder rule and the natural and probable consequences doctrine . . . to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill accomplished this task by adding three separate provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend the natural and probable consequences doctrine, the bill added section 188, subdivision (a)(3), which requires a principal to act with malice aforethought before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at pp. 842-843.) Second, to amend the felony-murder rule, the bill added section 189, subdivision (e):
"A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." (§ 189, subd. (e); accord, Gentile, supra, 10 Cal.5th at p. 842.)
Additionally, subdivision (f) of section 189 permits felony-murder liability under specified circumstances where the victim is a peace officer.
Finally, the bill added former section 1170.95, now section 1172.6, to provide a procedure for those convicted of a qualifying offense "to seek relief under the two ameliorative provisions above." (Gentile, supra, 10 Cal.5th at p. 843.)
Under section 1172.6, an offender seeking resentencing must first file a petition in the sentencing court, and the sentencing court must determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. (§ 1172.6, subds. (a)-(c); accord, People v. Strong (2022) 13 Cal.5th 698, 708.) If the sentencing court determines the petitioner has made a prima facie showing, the court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction. (§ 1172.6, subds. (c), (d)(1).) At this evidentiary hearing, "the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder . . . under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (d)(3).)
"Ordinarily, a trial court's denial of a section 1172.6 petition [following an evidentiary hearing] is reviewed for substantial evidence. [Citation.] Under this standard, we review the record '"' "in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." '" '" (People v. Reyes (2023) 14 Cal.5th 981, 988.)
II. Admission of the Preliminary Hearing Transcript
Petitioner contends the preliminary hearing transcript was admitted in violation of state law and his federal constitutional right to confrontation. We address and reject both contentions in turn.
A. State Evidentiary Law
Section 1172.6, subdivision (d)(3) governs the admission of evidence at the evidentiary hearing. It provides, in relevant part, "The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed.... However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule." (§ 1172.6, subd. (d)(3).)
Because section 1172.6, subdivision (d)(3) provides that the admission of evidence at the hearing is governed by the Evidence Code, petitioner contends the preliminary hearing transcript was admissible only if it met the requirements of Evidence Code section 1291. Evidence Code section 1291 provides in relevant part that "[e]vidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness" and "[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing." (Evid. Code, § 1291, subd. (a)(2).) Thus, "[t]o admit the former testimony of a witness, the prosecution must generally demonstrate that the witness is unavailable and that it made a good faith effort to obtain the witness's presence at trial." (People v. Cody (2023) 92 Cal.App.5th 87, 104 (Cody).)
Petitioner's argument regarding the applicability of Evidence Code section 1291 presents a question of statutory interpretation, which we review de novo. In interpreting a statute, our task is to determine and give effect to the Legislature's intent as to the law's purpose. Our examination begins with the plain text of the statute. (People v. Lewis (2021) 11 Cal.5th 952, 961.) If the language is unambiguous, "we presume the Legislature meant what it said and the plain meaning of the statute governs." (People v. Snook (1997) 16 Cal.4th 1210, 1215.)
Two relevant cases have recently addressed and rejected the argument that prior witness testimony must meet the requirements of Evidence Code section 1291 before it may be admitted at the section 1172.6 evidentiary hearing. In Cody, the trial court relied on transcripts from the petitioner's original trial. (Cody, supra, 92 Cal.App.5th at p. 93.) The Court of Appeal rejected the petitioner's argument that the transcripts were admissible only if they met the requirements of Evidence Code section 1291. (Cody, at pp. 103-104.) The court acknowledged that section 1172.6, subdivision (d)(3) provides that" '[t]he admission of evidence in the hearing shall be governed by the Evidence Code ....'" (Cody, at p. 104.) But, the court went on to explain: "If the Legislature had stopped there, then we would likely agree with [the petitioner's] interpretation of the statute. That is, we would find the prosecution is required to make a showing of witness unavailability under Evidence Code section 1291, before the trial court could admit the former testimony of witnesses at the evidentiary hearing. However, the law has an explicit exception that provides for the admission of former testimony: 'The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony ....'" (Ibid.) Thus, the court held that the petitioner's interpretation of section 1172.6 was contrary to the statute's plain language and would turn section 1172.6 evidentiary hearings into new court trials, contrary to the Legislature's intent. (Cody, at p. 104.)
People v. Davenport (2023) 95 Cal.App.5th 1150 (Davenport) addressed the admissibility of a preliminary hearing transcript at a section 1172.6 evidentiary hearing. The court held a "plain reading" of section 1172.6, subdivision (d)(3) compels the conclusion that a preliminary hearing transcript is generally admissible: "First, the provision unambiguously provides that a trial court ruling on the merits of a resentencing petition 'may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony.' (§ 1172.6, subd. (d)(3).) Second, because of the proviso that the trial court may not consider hearsay testimony that was admitted into evidence at a preliminary hearing under subdivision (b) of section 872, unless some other hearsay exception applies, section 1172.6, subdivision (d)(3) expressly contemplates that preliminary hearing testimony in particular will be considered at an evidentiary hearing." (Davenport, at p. 1158.) The court determined that section 1172.6, subdivision (d)(3) creates a new hearsay exception for former testimony given at a preliminary hearing, so long as that testimony was not admitted pursuant to section 872, subdivision (b). (Davenport, at p. 1158.)
The Davenport court summarized its interpretation of section 1172.6 as follows: "[T]he rules of evidence apply to hearings held under section 1172.6, subdivision (d); under those rules, hearsay is inadmissible in the absence of an exception; and the pertinent exception here is the clause in section 1172.6, subdivision (d)(3), stating that 'except that the court may consider evidence previously admitted at any prior hearing ....'" (Davenport, supra, 95 Cal.App.5th at p. 1158.) Although section 1172.6, subdivision (d)(3) also requires evidence admitted at the hearing to be" 'admissible under current law,'" the court determined "the most natural reading of those words is that the basis for admission of testimony at the hearing or trial in which it was previously admitted must remain a valid basis for admitting the testimony 'under current law.' " (Davenport, at p. 1158.) The court therefore rejected the petitioner's argument that this provision requires former witness testimony to be admissible pursuant to Evidence Code section 1291, noting that such interpretation would render "the exception for previously admitted testimony" superfluous. (Davenport, at p. 1159.)
For example, both Cody and Davenport noted that case specific hearsay offered at a prior hearing to support an expert's opinion would not be admissible at the evidentiary hearing. (Davenport, supra, 95 Cal.App.5th at p. 1159; Cody, supra, 92 Cal.App.5th at p. 104.)
We agree with the reasoning of Cody and Davenport and conclude that the plain language of section 1172.6, subdivision (d)(3) compels the conclusion that a preliminary hearing transcript is generally admissible at the section 1172.6 evidentiary hearing. Furthermore, neither party suggests petitioner's preliminary hearing involved hearsay testimony admitted pursuant to section 872, subdivision (b). As such, the preliminary hearing transcript falls within the hearsay exception created by section 1172.6, subdivision (d)(3) and was admissible on that basis.
B. Federal Confrontation Right
Petitioner contends that, absent a showing that the requirements of Evidence Code section 1291 were met, the admission of the preliminary hearing transcript violated his constitutional right to confront witnesses under the Sixth Amendment to the United States Constitution.
"The Sixth Amendment's Confrontation Clause provides that, '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" (Crawford v. Washington (2004) 541 U.S. 36, 42.) However, a section 1172.6 evidentiary hearing is not a criminal prosecution. (People v. Silva (2021) 72 Cal.App.5th 505, 520.) "[T]he panoply of rights that attach at trial do not apply during a section 1172.6 evidentiary hearing." (People v. Duran (2022) 84 Cal.App.5th 920, 931, italics omitted (Duran).) Rather, the" 'retroactive relief provided by section [1172.6] reflects an act of lenity by the Legislature "that does not implicate [a petitioner's] Sixth Amendment rights." '" (Silva, at p. 520.) Thus," '[t]he retroactive relief . . . afforded by [section 1172.6] is not subject to Sixth Amendment analysis." (People v. James (2021) 63 Cal.App.5th 604, 609.)
Accordingly, petitioner's claim necessarily fails.
Because we conclude the preliminary hearing transcript was plainly admissible, we do not address the parties' arguments regarding harmless error.
III. Voluntariness of Parole Hearing Transcripts
Petitioner contends his statements in the parole hearing transcripts were inadmissible at the evidentiary hearing because they were involuntary. We disagree that the record suggests petitioner's statements were involuntary.
A. Additional Procedural Background
In written briefing, petitioner objected to admission of the parole hearing transcripts on the ground his statements contained therein were coerced and involuntary. At the evidentiary hearing, the People argued the parole hearing transcripts were admissible pursuant to People v. Mitchell (2022) 81 Cal.App.5th 575, People v. Anderson (2022) 78 Cal.App.5th 81, and People v. Myles (2021) 69 Cal.App.5th 688 (Myles). The People asserted petitioner's constitutional arguments regarding the admissibility of these transcripts were rejected by Myles. Petitioner orally objected to admission of the transcripts under the Fifth and Sixth Amendments to the United States Constitution, as well as on due process grounds. To the extent the court was inclined to hold the transcripts were admissible, petitioner urged the court to rely only on the party admissions contained therein. The court agreed that only petitioner's own statements and his adoptive admissions of statements by the parole board were admissible. The court did not expressly address petitioner's constitutional objections.
B. Forfeiture
The People contend petitioner forfeited his arguments regarding voluntariness. We disagree.
"A defendant may not challenge the admissibility of evidence on appeal if he or she failed to raise a proper objection on those grounds in the trial court." (Myles, supra, 69 Cal.App.5th at p. 696; see Evid. Code, § 353, subd. (a).) Here, however, petitioner objected to admission of his parole hearing statements on the ground they were coerced and involuntary.
Nonetheless, the People suggest petitioner forfeited this claim on appeal by failing to press the court for an express ruling on his constitutional objections. (Citing People v. Valdez (2012) 55 Cal.4th 82, 142-143.) The People contend they were therefore deprived of the opportunity to develop the record on this point and the court likewise was deprived of the opportunity to make factual findings relating to the voluntariness of the statements. We fail to see how the People were deprived of the opportunity to respond to arguments petitioner presented orally and in writing. Indeed, the People apparently did respond to the argument, inasmuch as they argued petitioner's contentions were rejected by Myles, supra, 69 Cal.App.5th 688, which also addressed the voluntariness of parole hearing statements. (Myles, at pp. 705-706.)
Furthermore, the court was presented with the parties' various arguments regarding the admissibility of the parole hearing transcripts and determined certain statements from the transcripts were admissible. The instant case therefore is distinguishable from the case on which the People rely. (People v. Valdez, supra, 55 Cal.4th at pp. 142-143 [holding that an argument regarding the admission of evidence was forfeited on appeal, where the trial court stated the objection would" 'be left for another time'" and the defendant subsequently failed to press the court for a ruling on the issue].) Petitioner was not required to press the court to elucidate upon its reasoning to preserve this issue for appeal.
Based on the foregoing, we conclude the issue is not forfeited.
C. Analysis
The due process clauses of "[b]oth the state and federal Constitutions bar the prosecution from introducing a defendant's involuntary confession into evidence at trial." (People v. Linton (2013) 56 Cal.4th 1146, 1176 (Linton); accord, People v. Orozco (2019) 32 Cal.App.5th 802, 819.) A coerced or involuntary confession is inadmissible for any purpose. (People v. Jimenez (2021) 73 Cal.App.5th 862, 875-876.)"' "The test for determining whether a confession is voluntary is whether the defendant's 'will was overborne at the time he confessed.'" '" (Linton, at p. 1176.)" 'The prosecution has the burden of establishing by a preponderance of the evidence that a defendant's confession was voluntarily made.' [Citation.] 'Whether a confession was voluntary depends upon the totality of the circumstances.'" (Ibid.) We independently review a trial court's legal determination regarding voluntariness where the facts surrounding an admission or confession are recorded and therefore not subject to dispute. (Id. at pp. 1176-1177.)
In Myles, the Court of Appeal addressed the voluntariness of the petitioner's statements at a parole hearing while considering her argument that the statements were entitled to use immunity. (Myles, supra, 69 Cal.App.5th at pp. 705-706.) The court noted that the petitioner was not required to testify at her parole hearing, inasmuch as "parole cannot be conditioned on admission of guilt to a certain version of the crime." (Id. at p. 706, citing § 5011, subd. (b); Cal. Code Regs., tit. 15, § 2236; In re Swanigan (2015) 240 Cal.App.4th 1, 14; and In re McDonald (2010) 189 Cal.App.4th 1008, 1023.) Furthermore, the petitioner was advised at the parole hearing that she had the option to not discuss the commitment offense and that choice would not be held against her. However, she chose to discuss the offense and testified under oath regarding her role in the crime. "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 [the petitioner] bearing on some of the same issues." (Myles, at p. 706.)
Here, petitioner contends his statements at the parole hearings were involuntary because, at each hearing, the parole commissioner incorporated into the record a statement of facts implicating petitioner in the murder or advised petitioner the board would be accepting the factual findings of the court as true. According to petitioner, in the face of such factual assertions, he "had no rational choice but to make admissions at his parole hearings." However, that petitioner may have made a "rational choice" to respond to such factual assertions does not suggest his will was overborne by official coercion, such that his statements were involuntary.
As the court pointed out in Myles, petitioner was not required to testify at his parole hearing. (Myles, supra, 69 Cal.App.5th at p. 706.) Because only excerpts of the transcripts were admitted into evidence, the transcripts here do not reflect whether petitioner was advised that he had the option to refrain from discussing his commitment offense and his choice would not be held against him, as the petitioner was advised in Myles. However, we note that, at each hearing, petitioner was represented by counsel. In the June 5, 2001 hearing, the presiding parole board commissioner asked whether petitioner would be speaking with the board, and his attorney confirmed petitioner would address questions from the panel on all issues. However, at the November 9, 2012 hearing, petitioner, through counsel, declined to discuss the circumstances of the crime and agreed to answer questions relating only to the events leading up to the crime and his feelings of remorse. The record thus reflects that petitioner was aware of his right to refrain from testifying in whole or in part and was guided by counsel in these decisions.
However, after petitioner stated he understood what he had done, the presiding commissioner asked, "What did you do?" Petitioner responded, "I killed someone, and I almost - I put somebody else in the hospital."
The totality of these circumstances does not suggest that petitioner's parole board hearing testimony was involuntary. Accordingly, the court did not err in admitting petitioner's statements and adoptive admissions from the parole hearing transcripts. We therefore do not address the parties' arguments regarding whether this testimony was harmless.
IV. Use Immunity Doctrine
Petitioner contends the admission of his statements to the parole board violated his state and federal due process rights under the use immunity doctrine. We again disagree.
Use immunity is a judicial rule of evidence that effectuates the privilege against self-incrimination. (People v. Coleman (1975) 13 Cal.3d 867, 875, 889 (Coleman).) In Coleman, the defendant's criminal act was charged both as a violation of the defendant's then-current probation and a separate criminal act. The defendant testified at his probation violation hearing and the People subsequently sought to use that testimony in their case-in-chief at the defendant's trial. Our Supreme Court held that the testimony was inadmissible: "[T]he testimony of a probationer at a probation revocation hearing held prior to the disposition of criminal charges arising out of the alleged violation of the conditions of his probation, and any evidence derived from such testimony, is inadmissible against the probationer during subsequent proceedings on the related criminal charges." (Id. at p. 889.)
The high court's holding rested on two "policies underlying the privilege against self-incrimination." (Coleman, supra, 13 Cal.3d at p. 875.) First, permitting prosecutors to use a defendant's probation revocation testimony to prove guilt at a subsequent trial for the same conduct would "substantially lighten[]" the People's constitutional burden of proof. (Id. at p. 876.) This is because, ordinarily, "the privilege against self-incrimination requires the prosecution in a criminal trial to produce sufficient evidence to establish the defendant's guilt before he must decide whether to remain silent or to testify in his own behalf." (Id. at p. 875, italics omitted.)
Second, permitting prosecutors to use such testimony would force the defendant to choose between (1) testifying truthfully at the probation revocation hearing and possibly incriminating himself or herself while presenting any mitigating circumstances regarding the violation, (2) remaining silent at the probation revocation hearing and losing the opportunity to present a potentially compelling case against probation revocation, or (3) testifying falsely at the probation revocation hearing in a manner that will not damage his defense at a subsequent trial. (Coleman, supra, 13 Cal.3d at p. 878.) "Thus, when an alleged probation violation also constitutes a criminal offense for which the probationer might subsequently be prosecuted, he may be presented with the 'cruel trilemma' of self-accusation, perjury or injurious silence. To force an individual to choose one of three such unpalatable alternatives runs counter to our historic aversion to cruelty reflected in the privilege against self-incrimination." (Ibid.)
Several Courts of Appeal have declined to extend the rationale of Coleman to prohibit the use of parole hearing transcripts at section 1172.6 evidentiary hearings. In Myles, the Court of Appeal pointed out that the Fifth Amendment privilege against self-incrimination protects persons from being compelled to serve as a witness against themselves in"' "any criminal case." '" (Myles, supra, 69 Cal.App.5th at p. 705.) However, a section 1172.6 evidentiary hearing is not a trial de novo but an act of lenity extended to defendants already serving a valid sentence for murder. Accordingly, the Myles court held, the use of parole hearing statements in such proceeding does not violate the defendant's Fifth Amendment rights. (Myles, at pp. 705-706.)
In Duran, supra, 84 Cal.App.5th 920, the Court of Appeal noted that "cases applying Coleman's use immunity are . . . limited to situations where a defendant's prior statements might be later used against him in a manner that offends the privilege against self-incrimination." (Id. at p. 929 [collecting cases].) The court determined there were two reasons why "this brand of use immunity does not apply to bar the use of a defendant's prior statements in a parole risk assessment at a subsequent section 1172.6 evidentiary hearing." (Id. at p. 930.) First, because the section 1172.6 evidentiary hearing is not a" 'criminal case'" or" 'cause,'" it does not implicate the privilege against self-incrimination. (Duran, at p. 930.) "Once a defendant's 'sentence has been fixed and the judgment of conviction has become final,' the 'general rule' is that 'there can be no further incrimination' and hence 'no basis for the assertion of the privilege.' "(Duran, at p. 930.) Because the section 1172.6 hearing is itself neither a subsequent retrial nor a new sentencing, "Coleman's core rationale-and hence its holding- is not implicated." (Duran, at p. 931.) Second, the Duran court noted that Coleman made clear that use immunity does not apply "when a defendant's prior statements are to be introduced 'for purposes of impeachment' because the privilege against self-incrimination 'does not . . . encompass a right of an accused to lie.'" (Ibid.) Thus, even assuming Coleman applied, the court would have held the parole risk assessment admissible, to the extent it was inconsistent with the petitioner's sworn declaration, filed with his petition, that he was qualified to be resentenced because his conviction was invalid under the amended murder statutes. (Id. at pp. 931-932.)
The court noted, however, that the Ninth Circuit has created an exception to this general rule: "If a final judgment is overturned on collateral review, use immunity attaches to bar the use of statements the defendant made during that collateral review at any subsequent retrial or sentencing on the overturned convictions." (Duran, supra, 84 Cal.App.5th at p. 930.)
Other courts have reached similar conclusions. (People v. Mitchell (2022) 81 Cal.App.5th 575, 588-590 [declining to equate the § 1172.6 evidentiary hearing with a criminal prosecution for purposes of use immunity]; People v. Anderson (2022) 78 Cal.App.5th 81, 88-93 [rejecting the argument that Coleman use immunity is not predicated on the constitutional privilege against self-incrimination]; but see People v. Mitchell, at pp. 602-605 (dis. opn. of Stratton, P. J.) [Coleman is not limited to the privilege against self-incrimination and applies if the use of prior testimony would be fundamentally unfair].) Petitioner cites no cases to the contrary.
Nor does petitioner provide a compelling justification for deviating from the holding that the Fifth Amendment privilege against self-incrimination does not apply to the section 1172.6 evidentiary hearing. Petitioner merely points out that the prosecution's burden of proof at the evidentiary hearing is beyond a reasonable doubt. However, this burden is statutory rather than constitutionally imposed. Furthermore, as the Duran court pointed out, a petitioner's conviction remains intact and presumptively authorized during the pendency of the hearing. (Duran, supra, 84 Cal.App.5th at p. 931.) It is for this reason that "the panoply of rights that attach at trial do not apply during a section 1172.6 evidentiary hearing." (Duran, at p. 931.)
Because we resolve petitioner's claim of use immunity on this ground, we do not consider the alternative ground for admissibility addressed in Duran. (See Duran, supra, 84 Cal.App.5th at pp. 931-932.)
Accordingly, we join other courts that have considered this issue and hold that Coleman's use immunity does not extend to exclude petitioner's parole hearing testimony from the section 1172.6 evidentiary hearing. We therefore again decline to address the parties' arguments regarding whether the admission of this testimony was harmless.
V. Double Jeopardy
Petitioner argues the admission of his statements from the parole board hearings violated his state and federal constitutional rights against being twice put in jeopardy. We again disagree.
The People again argue forfeiture. To the extent the issue is forfeited, petitioner argues ineffective assistance of counsel. In light of petitioner's claim of ineffective assistance of counsel, we address and reject this claim on the merits.
Both the state and federal Constitutions guarantee that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb." (U.S. Const., 5th Amend.; see Cal. Const., art. I, § 15.) In People v. Trujillo (2006) 40 Cal.4th 165 (Trujillo), our Supreme Court relied in part on double jeopardy principles to hold that a prosecutor may not use a defendant's postconviction admissions to establish the elements of the offense. (Id. at p. 179.) There, the defendant previously had been convicted of inflicting corporal injury and assault with a deadly weapon. (Id. at p. 170.) In a subsequent criminal case, these offenses were alleged to be prior" 'strike'" convictions within the meaning of the Three Strikes law (§ 667, subds. (b)-(i)) (Trujillo, at p. 169), based on the defendant having used a dangerous or deadly weapon in commission of the offenses as required under section 1192.7, subdivision (c)(23) (Trujillo, at p. 170). Defense counsel conceded that the assault with a deadly weapon conviction was a strike, inasmuch as the information had alleged the defendant committed the offense with a knife. However, the parties disagreed whether the conviction for inflicting corporal injury constituted a strike. (Ibid.) Ultimately, to prove that the corporal injury offenses constituted a strike, the prosecutor relied on the defendant's statement, recounted in a probation report, that he had personally used a knife. (Id. at p. 171.) The trial court refused to consider the admission, noting that the original trial court had stricken the allegation that the defendant had personally used a knife in the commission of this offense. (Ibid.; see id. at p. 175.) The People appealed. (Id. at p. 171.)
Our Supreme Court agreed with the trial court that the statement contained in the probation report could not be considered, but on different grounds. The high court explained that the trial court was tasked with determining"' "the nature of the conviction," '" and the relevant inquiry was limited to" 'an examination of the record of the prior criminal proceeding to determine the nature or basis of the crime of which the defendant was convicted.'" (Trujillo, supra, 40 Cal.4th at p. 179.) However, "a defendant's statements, made after a defendant's plea of guilty has been accepted, that appear in a probation officer's report prepared after the guilty plea has been accepted are not part of the record of the prior conviction, because such statements do not 'reflect[] the facts of the offense for which the defendant was convicted.'" (Ibid.) The high court explained: "Once the court accepted his plea, the defendant could admit to the probation officer having stabbed the victim without fear of prosecution, because he was clothed with the protection of the double jeopardy clause from successive prosecution for the same offense. [Citation.] [The d]efendant's admission recounted in the probation officer's report, therefore, does not describe the nature of the crime of which he was convicted and cannot be used to prove that the prior conviction was for a serious felony." (Ibid.)
We conclude Trujillo is inapposite and unpersuasive on petitioner's point for several reasons. First, it is well settled that principles of double jeopardy do not apply in section 1172.6 proceedings. (People v. Schell (2022) 84 Cal.App.5th 437, 444; Mitchell, supra, 81 Cal.App.5th at p. 589; People v. Flint (2022) 75 Cal.App.5th 607, 618.) The section 1172.6 evidentiary hearing is not a new prosecution that could subject the petitioner to additional punishment, but a state-created act of lenity undertaken at the defendant's request. (People v. Hernandez (2021) 60 Cal.App.5th 94, 111; see Flint, at p. 618; see also Myles, supra, 69 Cal.App.5th at p. 704.) Thus, the section 1172.6 evidentiary hearing does not implicate double jeopardy principles. (Hernandez, at p. 111.)
Second, unlike the circumstances presented in Trujillo, the evidence at the evidentiary hearing is not limited to the record of conviction. (§ 1172.6, subd. (d)(3); see Myles, supra, 69 Cal.App.5th at p. 704.) Nor is the trial court tasked with determining the theory on which a prior conviction rests. (People v. Basler (2022) 80 Cal.App.5th 46, 61 (Basler) [rejecting argument that the People were required to prove, beyond a reasonable doubt, that a prior jury found the petitioner guilty under a valid theory].) Rather, at the evidentiary hearing, the trial court acts as "an independent fact finder, to determine beyond a reasonable doubt whether [a] defendant is guilty of murder under a valid theory of murder." (People v. Garrison (2021) 73 Cal.App.5th 735, 745 (Garrison).) In so doing, the court may consider "new or additional evidence." (§ 1172.6, subd. (d)(3).) Trujillo has no applicability to these circumstances and thus does not persuade us that the court erred in admitting petitioner's parole hearing statements.
Accordingly, we conclude the admission of the parole hearing transcripts did not violate petitioner's double jeopardy rights. We therefore once again decline to consider whether the admission of this evidence was harmless.
VI. Standard Applied by Trial Court
Petitioner argues that, by considering whether petitioner" 'would'" or" 'could'" still be convicted of murder under current law, the trial court failed to decide whether the prosecutor proved petitioner is guilty of murder under current law, as required by section 1172.6, subdivision (d)(3). We conclude the trial court made the findings necessary to support the denial of the petition for resentencing.
Section 1172.6 permits the filing of a petition for resentencing when certain conditions apply, including that the petitioner "could not presently be convicted of murder . . . because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(3), italics added.) Once the petition reaches the evidentiary hearing stage, "the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (d)(3), italics added.) Significantly, "[a] finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (Ibid.)
It is well settled that section 1172.6, subdivision (d)(3) requires "the trial court, acting as an independent fact finder, to determine beyond a reasonable doubt whether [a] defendant is guilty of murder under a valid theory of murder." (Garrison, supra, 73 Cal.App.5th at p. 745.) As an independent finder of fact, the court does not determine whether a prior jury would or could have resolved the case upon a valid theory. (Basler, supra, 80 Cal.App.5th at p. 61 [rejecting argument that the People were required to prove, beyond a reasonable doubt," 'that the jury found that the [petitioner] was the actual killer or acted with the intent to kill if the [petitioner] was convicted of first degree murder as a direct aider and abettor.'" (italics omitted)].) Rather, the court must recall the sentence unless it independently finds the defendant is guilty of murder under a valid theory.
Here, the trial court initially determined that petitioner "could" still be convicted of murder under a valid theory, then changed its ruling at the People's request to state that petitioner "would" still be convicted of murder under a valid theory. According to petitioner, both words suggest the trial court determined how a hypothetical jury would decide the case, rather than resolving in the first instance whether the prosecution had proved, beyond a reasonable doubt, that petitioner was indeed guilty. Were this the court's only finding with regard to petitioner's guilt, we might be inclined to agree that the court did not make the necessary findings to support denial of the petition. However, this was not the court's only factual finding.
The court also found the following facts regarding the offense to be true: Petitioner, armed with a loaded and operable firearm, went to the murder victim's hotel room to rob the victim of money and drugs. Petitioner encouraged his co-responsible to shoot through the door and the resulting shot killed the murder victim. Petitioner then entered the room and took drugs from the victim and shot another person in the chest. Based on these facts, the court specifically found petitioner was a major participant in the crime who acted with reckless indifference to human life. In support of this finding, the court made additional factual findings on the factors relevant to that inquiry. The court also found petitioner directly aided and abetted in the murder, and made additional factual findings on the factors relevant to that inquiry. Based on these findings, the court found beyond a reasonable doubt that petitioner "would still be convicted of second degree murder" under current law. The court clarified: "But I did find, [petitioner], that . . . the facts . . . would mean that you would be convicted still of the murder as the law stands because you were a substantial participant in you aided abetted and helped instigate the entire situation. So that's what this Court believes happened beyond a reasonable doubt given all the facts and all the evidence that was presented."
Based on the foregoing, the record is clear that the court found, beyond a reasonable doubt, that petitioner was both a major participant in the underlying crime who acted with reckless indifference to human life, and a direct aider and abettor in the murder. As a result, the court necessarily found, beyond a reasonable doubt, that petitioner is guilty of murder under a currently valid theory. Accordingly, petitioner is not entitled to reversal on this basis.
VII. Cumulative Error
Petitioner contends that, if no one error is sufficient to warrant reversal, the cumulative effect of the aforementioned errors warrants reversal. However, we have found no error, and there is therefore no cumulative effect to weigh.
DISPOSITION
The order denying the petition is affirmed.
WE CONCUR: POOCHIGIAN, Acting P. J., MEEHAN, J.