The opinion
Filed 4/7/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B332704
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A384310)
v.
JOSE GELITO RODRIGUEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Craig Richman, Judge. Affirmed.
Joanna McKim, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Jose Gelito Rodriguez appeals from an order denying his
petition for resentencing under Penal Code section 1172.6 after
an evidentiary hearing. 1 Rodriguez contends the trial court erred
in admitting statements he made in a letter to the Board of
Parole Hearings in 2011, and statements he made in connection
with a 2016 Comprehensive Risk Assessment evaluating his
suitability for parole. We find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 24, 1982, Rodriguez and three other individuals
were driving down Hollywood Boulevard. In two separate
incidents, shots fired from the car injured Don Hill and killed
Kirk Bickford. Rodriguez and Sergio Martinez were jointly
charged with assault with a deadly weapon on Don Hill (§ 245,
subd. (a)), and the murder of Kirk Bickford (§ 187, subd. (a)). As
to each offense, Rodriguez was charged with personal use of a
firearm (§ 12022.5).
In 1984, Rodriguez pled guilty to second degree murder.
Under the terms of the plea agreement, the People dismissed the
firearm enhancements. During the plea hearing, the prosecutor
explained that the plea agreement was appropriate because no
witnesses were available to independently identify Rodriguez as
the shooter. The prosecutor also noted that evidence at the
preliminary hearing revealed Rodriguez was under the influence
of phencyclidine (PCP) at the time of the crime, which, if
1 All further undesignated statutory references are to the
Penal Code.
Effective June 30, 2022, section 1170.95 was renumbered to
section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.)
We refer to the law formerly codified at section 1170.95 as
section 1172.6 for the remainder of this opinion.
2
admissible, may have entitled him to a voluntary intoxication
defense, reducing any conviction to involuntary manslaughter.
Rodriguez accepted the agreement and pled guilty. The trial
court sentenced Rodriguez to 15 years to life for second degree
murder.
2011 Letter to the Board of Parole Hearings (Board)
In February 2011, Rodriguez submitted a written
statement to the Board “for consideration towards determination
of parole suitability per CCR Sec. 2249.” 2 Rodriguez offered the
statement to explain his “current state of mind as it relates to
any insight and remorse pertaining to the commitment offense
and subsequent incarceration.”
In the letter, Rodriguez accepted “full and unequivocal
responsibility for [his] actions in this crime.” He continued:
“[T]here is no manner of explanation or heartfelt discussion that
can excuse a crime such as this that has caused so much pain and
suffering for so many people[,] i.e.[,] Mr. Kirk W. Bickford[.] I
had no right to end his life, an act for which I am truly and
deeply sorry for committing.” Rodriguez further stated that
Bickford was “someone[’]s child, family and hope for the future,
and it pains me daily knowing that I took that away from
anyone.”
The letter went on to address Rodriguez’s criminal history
as a juvenile, his growth and maturity during his nearly three
decades of incarceration, and his record while incarcerated.
Rodriguez further stated that by pleading guilty, “I . . . made it
2 California Code of Regulations, title 15, section 2249 gives
prisoners the right to present relevant documents to the Board
panel covering “any relevant matters such as mitigating
circumstances, disputed facts[,] or release planning.”
3
clear that [Bickford] died by my hand and I never denied that
fact . . . .” Rodriguez declined to discuss any further details about
the facts of his case “that were not proven in a court of law or
plead[ed] guilty to . . . .”
2016 Comprehensive Risk Assessment (Assessment)
In 2016, Rodriguez underwent an assessment as part of a
subsequent parole evaluation. The assessment was conducted by
Dr. Jill Hobel, a licensed psychologist with the California
Department of Corrections and Rehabilitation. Dr. Hobel
interviewed Rodriguez in March 2016. Within one week of the
interview, Dr. Hobel compiled a 15-page report based on her
contemporaneous notes. The assessment report documented that
Dr. Hobel informed Rodriguez at the outset of the assessment
that “he had a right not to participate in the examination.”
The report covered Rodriguez’s psychosocial development
from childhood and adolescence through adulthood, his criminal
history, a clinical assessment, and risk considerations. Dr. Hobel
transcribed Rodriguez’s description of the commitment offense: “I
was in a moving car with three friends. . . . We were driving and
passersby started arguing with us. A guy came up, and I shot the
gun. It grazed his ear. [¶] Then two blocks later there was an
argument with another guy. As we drove past him, I shot at him,
but didn’t see him go down. I didn’t hear him say anything, but
my crimie (co-defendant) said he called us ‘wetbacks.’ I just
reacted. I was not in my best state of mind [due to the PCP and
beer]. We just left the scene and I was arrested two days later. I
didn’t know I killed him until the arrest.”
Dr. Hobel observed that Rodriguez’s description of the
crime differed from the one he gave as part of a previous
evaluation. She stated: “In his 2011 [assessment], [Rodriguez]
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recalled a gun being fired on two occasions, but did not recall
shooting at anybody. He only remembered the gun firing at those
times. Thus, it appears he has accepted more responsibility for
his role in the commitment offense, and possibly deepened his
insight with more truth as a basis.”
Resentencing Proceedings
In July 2020, Rodriguez filed a petition for resentencing
contending the People could not establish beyond a reasonable
doubt that he was a principal in the murder. Relying on the
prosecutor’s statements during the plea hearing that no available
witnesses identified Rodriguez as the shooter, and that
Rodriguez’s intoxication could potentially negate a finding of
malice, Rodriguez argued he made a prima facie showing of
eligibility for relief under section 1172.6. 3 The trial court
appointed counsel to represent him. In October 2021, the People
stipulated that Rodriguez had met his prima facie burden for
resentencing relief. The trial court issued an order to show cause
and set an evidentiary hearing.
In advance of the hearing, the People sought to admit five
exhibits: the felony information, the plea transcript, the
sentencing transcript, Rodriguez’s 2011 letter to the Board, and
the 2016 assessment report.
Rodriguez objected to the admission of his 2011 letter and
the 2016 assessment report. He argued the 2016 assessment
report contained multiple levels of hearsay, likely derived from
other inadmissible hearsay sources such as the probation report,
police reports, and witness statements to investigators.
3 Rodriguez also sought resentencing “for reason(s) other
than the new law of P.C. 1170.95” based on his good-time credit
earnings. He does not raise this issue on appeal.
5
Rodriguez objected to his 2011 letter as unreliable hearsay, in
relevant part because of the “inherently coercive nature” of parole
hearings that pressured inmates to “ ‘accept responsibility’ ” for
criminal misconduct.
In response, the People clarified that they sought to admit
only an excerpt of the assessment report in which Dr. Hobel
documented Rodriguez’s description of the commitment offense.
The People contended Rodriguez’s statements were voluntary
because, as with statements made directly to the parole board, he
was not required to admit guilt during his assessment interview,
and the parole board could not hold his refusal to admit guilt
against him in determining his suitability for parole. (§ 5011;
Cal. Code Regs., tit. 15, § 2236.) The People also argued that
Rodriguez’s statements were admissible under the party
admissions and public records exceptions to the hearsay rule. In
a supplemental brief, Rodriguez responded that neither hearsay
exception applied and that he was pressured to make the
inculpatory statements in the assessment report at Dr. Hobel’s
“prompting” to increase his chances of being granted parole. He
requested that the court require Dr. Hobel to testify as to the
accuracy and trustworthiness of the statements she documented
in the assessment report.
In August 2022, the court held a hearing on the
admissibility of Rodriguez’s statements in his 2011 letter and the
2016 assessment report. Relying on People v. Myles (2021) 69
Cal.App.5th 688 (Myles) and People v. Mitchell (2022) 81
Cal.App.5th 575 (Mitchell), the court found Rodriguez’s
statements in the 2011 letter and the 2016 assessment report
were admissible. It further found “no reason to doubt” the
accuracy of Dr. Hobel’s recording of Rodriguez’s statements in the
6
assessment report, and rejected defense counsel’s argument that
the 2011 letter lacked foundation. Finally, the court rejected
Rodriguez’s contention that his statements should be excluded
because parole proceedings, in general, are inherently coercive.
In July 2023, a different judge conducted an evidentiary
hearing on Rodriguez’s petition under section 1172.6,
subdivision (d)(3). The court noted that it reviewed the People’s
exhibits and the probation report, which was referenced by the
assessment report and had been “submitted as part of a request
by Mr. Rodriguez acting in pro per for a resentence.”
The People called Dr. Hobel as a lay witness. Rodriguez
objected. Defense counsel argued that Myles, Mitchell, and a
more recent decision, People v. Duran (2022) 84 Cal.App.5th 920
(Duran), wrongly decided that statements made during parole
proceedings are admissible in a section 1172.6 evidentiary
hearing; Rodriguez’s statements to Dr. Hobel as recorded in the
assessment report were involuntary; and the admission of Dr.
Hobel’s testimony regarding these statements violated
Rodriguez’s due process rights. The court overruled the
objections.
Dr. Hobel testified that Rodriguez’s statements in the
relevant excerpt of her report accurately reflected what
Rodriguez told her during his assessment in 2016. On cross-
examination, Dr. Hobel testified that she did not believe
Rodriguez’s mental state was impaired at the time of the
assessment. She documented his description of the commitment
offense within a week of speaking with him, based on “pen and
paper notes” she took during the interview.
After further argument, the court found Rodriguez was the
actual killer and therefore ineligible for resentencing relief.
7
Rodriguez timely appealed.
DISCUSSION
I. Senate Bill No. 1437 and Section 1172.6
Senate Bill No. 1437 (2017–2018 Reg. Sess.) eliminated the
natural and probable consequences doctrine as a basis for finding
a defendant guilty of murder and limited the scope of the felony
murder rule. (People v. Strong (2022) 13 Cal.5th 698, 707–708;
People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); People v.
Gentile (2020) 10 Cal.5th 830, 842–843 (Gentile).) The bill
amended section 188 by adding the requirement that, except as
stated in section 189, “in order to be convicted of murder, a
principal in a crime shall act with malice aforethought. Malice
shall not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3).) The amendments
to the Penal Code did not invalidate murder convictions based on
the theory that the defendant was the sole and actual killer.
(Stats. 2018, ch. 1015, § 1, subd. (f); see People v. Bodely (2023) 95
Cal.App.5th 1193, 1201 [defendant found to be actual killer
ineligible for resentencing under § 1172.6 as a matter of law].)
Under section 1172.6, a person convicted of a qualifying
offense under the former law may petition for resentencing if the
person could no longer be convicted of that offense under
amended section 188. (Lewis, supra, 11 Cal.5th at p. 959;
Gentile, supra, 10 Cal.5th at p. 847; see also Sen. Bill No. 775
(2021–2022 Reg. Sess.) § 2 [further amending statutory
procedures in § 1172.6].)
If the court determines the petitioner has made a prima
facie case for relief, the court must issue an order to show cause.
(§ 1172.6, subd. (c).) Within 60 days, “ ‘the court must hold an
evidentiary hearing at which the prosecution bears the burden of
8
proving, “beyond a reasonable doubt, that the petitioner is guilty
of murder or attempted murder” under state law as amended by
Senate Bill No. 1437 . . . .’ ” (People v. Njoku (2023) 95
Cal.App.5th 27, 41; § 1172.6, subd. (d)(1), (3).) The Evidence
Code governs the admission of evidence at the hearing, “except
that the court may consider evidence previously admitted at any
prior hearing or trial that is admissible under current law . . . .”
(§ 1172.6, subd. (d)(3).) The parties “may also offer new or
additional evidence to meet their respective burdens.” (Ibid.)
At this stage, “[t]he question is whether the petitioner
committed [the underlying crime] under a still-valid theory, and
that is a factual question.” (People v. Clements (2022) 75
Cal.App.5th 276, 294.) The trial court is therefore “a fact finder
tasked with holding the People to the beyond a reasonable doubt
standard . . . .” (Id. at pp. 294–295.)
II. The Trial Court Did Not Err in Admitting
Rodriguez’s 2011 Letter and his 2016 Statements in
the Assessment Report
Rodriguez contends that it was fundamentally unfair, in
violation of his due process rights, for the trial court to admit the
statements he made in his 2011 letter to the Board and the 2016
assessment report identifying himself as the shooter responsible
for Bickford’s death.4 Relying on People v. Coleman (1975) 13
4 Rodriguez also makes a cursory challenge to the trial
court’s admission or consideration of the probation report, which
contained statements by Rodriguez and Martinez identifying
Rodriguez as the person responsible for shooting Bickford. Even
assuming the trial court erred by considering the probation
report, and that Rodriguez’s failure to object in the trial court did
not forfeit the argument, any error was harmless. Rodriguez’s
9
Cal.3d 867 (Coleman), Rodriguez argues that by admitting his
statements, the trial court impermissibly placed his right to
participate in parole proceedings in conflict with his privilege
against self-incrimination at the resentencing hearing.
In accordance with the weight of the authority on this
issue, we find Coleman inapposite because Rodriguez was not
protected by the privilege against self-incrimination during his
section 1172.6, subdivision (d)(3) evidentiary hearing, and
incriminating statements he made during his parole proceedings
were therefore admissible. (Accord, People v. Zavala (2024) 105
Cal.App.5th 366 (Zavala); Duran, supra, 84 Cal.App.5th 920;
People v. Anderson (2022) 78 Cal.App.5th 81 (Anderson); Mitchell,
supra, 81 Cal.App.5th 575; Myles, supra, 69 Cal.App.5th 688.)
In Coleman, supra, 13 Cal.3d 867, our high court held that
a defendant’s testimony at a probation revocation hearing could
not be used in the prosecution’s case-in-chief in a subsequent
criminal trial stemming from the same alleged criminal conduct.
(Id. at pp. 888–889.) The court reasoned that the probation
revocation process often necessitates that the defendant make
“damaging factual admissions.” (Id. at p. 874.) The use of these
admissions at a subsequent criminal trial based on the same
conduct conflicts with two policies underlying the privilege
against self-incrimination. First, allowing the prosecution to take
advantage of a defendant’s testimony from a prior probation
2011 letter and his statements in the 2016 assessment report
contained equally if not more forthright admissions from
Rodriguez about his culpability for Bickford’s killing, and we
conclude the trial court properly admitted those statements. We
therefore do not address questions about the admissibility of the
probation report.
10
revocation hearing would “substantially lighten[ ]” the
prosecution’s burden of proof in a subsequent criminal trial,
where, normally, the defendant would be free to remain silent
until the prosecution has made out a prima facie case. 5
(Coleman, at p. 876; see id. at pp. 873–876.) Second, requiring a
defendant to choose between exercising the privilege against self-
incrimination and the right to be heard at a probation revocation
hearing would undermine “our ‘unwillingness to subject those
suspected of crime to the cruel trilemma of self-accusation,
perjury or contempt.’ [Citation.]” (Id. at p. 878.)
Courts have applied Coleman’s use immunity rule in other
contexts “where there is a compulsive sanction against exercise of
the privilege against self-incrimination and where the policy of
law favors full disclosure or discussion by the accused.” (People v.
Dennis (1986) 177 Cal.App.3d 863, 875–876; Anderson, supra, 78
Cal.App.5th at p. 91.) Rodriguez urges this court to extend
Coleman’s use immunity rule to prohibit the use of his
statements in his 2011 and 2016 parole proceedings in an
5 Although the Coleman court expressly declined to decide
whether pretrial probation revocation hearings force probationers
to give up their Fifth Amendment rights against self-
incrimination, it noted that its judicial rule “provides protection
‘coextensive with the scope of the privilege against self-
incrimination[.]’ ” (Coleman, supra, 13 Cal.3d at p. 892). Our
high court subsequently clarified that Coleman’s use immunity
rule was “essential to California’s privilege against self-
incrimination.” (Ramona R. v. Superior Court (1985) 37 Cal.3d
802, 809.)
11
evidentiary hearing under section 1172.6, which, he contends, “is
materially the same as a criminal bench trial.” 6 We disagree.
Unlike the subsequent criminal trial at issue in Coleman,
the resentencing procedure outlined in section 1172.6 “ ‘is not a
trial de novo on all the original charges’ ” in which the state seeks
to convict or criminally punish a defendant. (People v. Williams
(2020) 57 Cal.App.5th 652, 661.) “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” [citation],
allowing for the retroactive application of the new law governing
accomplice liability for felony murder [citation], for defendants
already serving valid sentences for murder.’ [Citation.]” (Ibid.)
Resentencing under section 1172.6 operates independently
of a direct appeal, requiring persons seeking its “ ‘ameliorative
benefits’ ” to initiate the process by filing a petition and allowing
the parties to submit evidence outside the original record.
(People v. Anthony (2019) 32 Cal.App.5th 1102, 1153; see id. at
pp. 1152–1153, quoting People v. Martinez (2019) 31 Cal.App.5th
719, 724–728.) It does not begin with a presumption of innocence
and end in conviction; rather, a defendant’s conviction remains
“intact” throughout the process and is not vacated unless and
until the prosecution fails to prove a defendant’s ineligibility for
relief beyond a reasonable doubt. (Duran, supra, 84 Cal.App.5th
at p. 930.) Only two outcomes are possible: a defendant’s
6 Because we conclude section 1172.6 resentencing
proceedings are not criminal trials and therefore do not implicate
the right against self-incrimination, we need not address the
merits of Rodriguez’s contention that “[t]here is no meaningful
distinction” between a defendant’s statements at a probation
revocation hearing and a defendant’s statements during parole
proceedings.
12
conviction and sentence remain in place, or a defendant’s
conviction and sentence are reduced to reflect their proven level
of culpability. (Mitchell, supra, 81 Cal.App.5th at p. 587
[legislature intended § 1172.6 proceedings “to zero in on the
‘individual culpability’ of each petitioning defendant”].) Thus,
“[b]ecause 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
p. 706.)
Moreover, we reject Rodriguez’s argument that he was
compelled to make incriminating statements in his parole
proceedings because his silence could be “injurious” to his
chances for parole. Rodriguez has not demonstrated that his
2011 or 2016 statements constitute the type of “compelled
testimony” that federal or state constitutions prohibit the
prosecution from using to satisfy its burden of proof. (People v.
Schader (1969) 71 Cal.2d 761, 770.) Indeed, in his 2011 letter to
the Board, Rodriguez declined to discuss additional facts “that
were not proven in a court of law or plead[ed] guilty to,”
indicating he understood he had discretion over the statements
he elected to make in the parole proceedings. (See Myles, supra,
69 Cal.App.5th at p. 706.)
State regulations prohibit the Board from requiring
admissions of guilt when setting parole dates, permit
incarcerated persons to “refuse to discuss the facts of the crime,”
and establish that “the refusal shall not be held against the
prisoner.” (Cal. Code Regs., tit. 15, § 2236; see § 5011, subd. (b).)
“Standing alone, a defendant’s right to speak on their own behalf
at a parole hearing cannot support a conclusion that parole
13
hearing testimony was compelled or involuntary.” (Zavala,
supra, 105 Cal.App.5th at p. 377.) The trial court properly
considered Rodriguez’s 2011 and 2016 statements and
determined he was not entitled to resentencing under
section 1172.6.
DISPOSITION
The trial court’s order is affirmed.
CERTIFIED FOR PUBLICATION
ADAMS, J.
We concur:
EDMON, P. J.
EGERTON, J.
14