The opinion
Filed 6/23/25 P. v. Wesson CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B335764
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A652569)
v.
SHONDESS LIN WESSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Hector E. Gutierrez, Judge. Affirmed.
Jonathan E. Demson, 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, Senior
Assistant Attorney General, Idan Ivri, Supervising Deputy
Attorney General, Theresa A. Patterson and Nikhil Cooper,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________
INTRODUCTION
In 1989 Shondess Lin Wesson pleaded guilty or no contest
(the record is not clear which) to first degree murder and second
degree robbery and admitted the allegation a principal was
armed with a firearm. The trial court sentenced Wesson to a
prison term of 25 years to life.
Thirty-two years later, in 2021, Wesson filed a petition for
resentencing under Penal Code section 1172.6.1 The superior
court found Wesson stated a prima facie case for relief, issued an
order to show cause, and held an evidentiary hearing, where the
People presented evidence, including statements Wesson made at
his parole hearing in 2016. The superior court found beyond a
reasonable doubt that Wesson was the actual killer and that he
was guilty of murder under the current law and denied the
petition.
Wesson argues the superior court erred in relying on
statements he made at his parole hearing to conclude he was the
actual killer. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Wesson Pleads to First Degree Murder and
Second Degree Robbery
According to the testimony at the preliminary hearing, one
evening in January 1989 Wesson and four other individuals
decided to “jack” (meaning rob) Trent Allen at a gas station. One
of the individuals pulled out a “magnum” and took Allen’s car,
1 Undesignated statutory references are to the Penal Code.
2
watch, and gold necklace. A witness heard gunshots and saw two
men leaving the gas station, the second man shooting the first
with a handgun. The victim, later determined to be Allen, fell to
the ground, and the shooter walked away. Allen died from
multiple gunshot wounds.
Wesson pleaded guilty or no contest to first degree murder
(§ 187, subd. (a)) and second degree robbery (§ 211) and admitted
that, in committing the crimes, a principal was armed with a
firearm, within the meaning of section 12022, subdivision (a).
The trial court sentenced Wesson to a prison term of 25 years to
life pursuant to the plea agreement.2
B. Wesson Admits He Shot Allen
In 2016 Wesson testified before a panel of commissioners of
the Board of Parole Hearings. This is what Wesson told the
panel occurred on the night of Allen’s murder: Wesson and his
friends saw Allen at a gas station, and one of Wesson’s friends
pulled out a gun to rob Allen. Allen recognized Wesson from
elementary school and called out to him. Wesson grabbed a gun,
ran after Allen, and shot him several times in the back. Wesson
told the panel that he shot Allen because he was “[s]cared of
going back to” the California Youth Authority and that he
“intended to kill” Allen. Wesson also admitted he knew that
night Allen had died. Wesson explained that, in a previous
statement to a therapist, he minimized his role because he “was
not accepting [his] full role in that crime.” The panel denied
Wesson parole and set the next parole suitability hearing to occur
in 10 years.
2 The court imposed and stayed execution of terms on the
robbery conviction and the firearm enhancement.
3
C. The Superior Court Denies Wesson’s Petition for
Resentencing Under Section 1172.6
In 2021 Wesson filed a petition for resentencing under
section 1172.6 by checking boxes on a form petition stating he
was eligible for relief and asking the court to appoint counsel to
represent him. Among other allegations, Wesson checked the box
next to the statement “I was convicted of 1st degree felony
murder and I could not now be convicted because of changes to
Penal Code § 189, effective January 1, 2019, for the following
reasons” and, beneath that statement, the box next to the
statement “I was not the actual killer.”3 The superior court
appointed counsel, the People filed an opposition to the petition,
and Wesson filed a reply. The court found Wesson stated a prima
facie case for relief, issued an order to show cause, and scheduled
an evidentiary hearing. The People submitted, among other
things, the transcript of Wesson’s parole hearing in 2016.
Counsel for Wesson objected to the court admitting the parole
hearing transcript.
At the evidentiary hearing, counsel for Wesson argued the
parole proceedings rose to a “level of coercion” that rendered
Wesson’s statements involuntary under Evidence Code
section 1204 and unreliable under Evidence Code section 1220.4
3 Wesson also checked boxes next to allegations that he did
not, with the intent to kill, aid or abet the actual killer and that
he was not a major participant in the felony or act with reckless
indifference to human life during the course of the crime or
felony.
4 Evidence Code section 1204 provides a “statement that is
otherwise admissible as hearsay evidence is inadmissible against
4
Citing People v. Myles (2021) 69 Cal.App.5th 688 (Myles), the
superior court admitted the parole hearing transcript. The court
described the transcript as “chilling and tragic in profound
respects.” The court stated Wesson admitted responsibility for
Allen’s murder, which showed he had a motive “above and beyond
robbery for this decision to point a gun at Trent Allen and shoot
him multiple times in the back as he ran away.” The court
recited Wesson’s admission: “‘The truth is, I intended to kill Mr.
Allen.’” The superior court found Wesson’s sworn statement
before the parole board “compelling evidence as to [his]
culpability as the actual perpetrator and the person who
personally . . . killed Trent Allen in 1989.” The court denied
Wesson’s petition under section 1172.6, and Wesson timely
appealed.
DISCUSSION
Wesson contends the superior court erred in relying on
statements he made at his parole hearing because, according to
Wesson, those statements “should not be admissible as
substantive evidence of guilt at a subsequent criminal
proceeding, including an evidentiary hearing pursuant to
section 1172.6, subdivision (d)(3).” He relies on People v.
Coleman (1975) 13 Cal.3d 867 (Coleman), where the Supreme
Court held testimony by a probationer at a probation revocation
the defendant in a criminal action if the statement was made . . .
under such circumstances that it is inadmissible against the
defendant under the Constitution of the United States or the
State of California.” Evidence Code section 1220 is the hearsay
exception for a party opponent.
5
hearing “is inadmissible against the probationer during
subsequent proceedings on the related criminal charges” (id. at
p. 889), a rule known as the “Coleman use-immunity rule.”5
(People v. Weaver (1985) 39 Cal.3d 654, 658; see People v.
Rodriguez (2025) 110 Cal.App.5th 458, 467 (Rodriguez). Wesson
seeks to extend “use immunity grounded in California’s
constitutional guarantee against self-incrimination” to
evidentiary hearings under section 1172.6, subdivision (d)(3). As
Wesson acknowledges, however, the weight of the authority does
not support his argument. We follow that authority.
5 The term “use immunity” refers to “‘immunity from the use
of compelled testimony, as well as evidence derived directly and
indirectly therefrom.’” (People v. Cooke (1993) 16 Cal.App.4th
1361, 1366; see People v. Knight (2015) 239 Cal.App.4th 1, 7
[“‘Use immunity rules apply 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.’”].) Use immunity “prevents a prosecutor from using the
immunized testimony against the witness” and “provides
sufficient protection to overcome a Fifth Amendment claim of
privilege.” (Cooke, at p. 1366.)
6
A. Applicable Law and Standard of Review
Effective 2019, the Legislature substantially modified the
law governing accomplice liability for murder by eliminating the
natural and probable consequences doctrine as a basis for finding
a defendant guilty of murder and significantly narrowing the
felony-murder exception to the malice requirement for murder.
(People v. Oyler (2025) 17 Cal.5th 756, 835; People v. Patton
(2025) 17 Cal.5th 549, 558 (Patton); People v. Arellano (2024)
16 Cal.5th 457, 467-468; People v. Curiel (2023) 15 Cal.5th 433,
448-449; see People v. Strong (2022) 13 Cal.5th 698, 707-708
[felony murder]; People v. Gentile (2020) 10 Cal.5th 830, 842-843
[natural and probable consequences].) Section 188,
subdivision (a)(3), now prohibits imputing malice based solely on
a person’s participation in a crime and requires proof of malice to
convict a defendant of murder, except under the revised felony-
murder rule. (§§ 188, subd. (a)(3), 189, subd. (e); Patton, at
p. 558; Arellano, at pp. 467-468; Curiel, at pp. 448-449.) Effective
2022, the Legislature amended section 1172.6 to apply to persons
convicted of “attempted murder under the natural and probable
consequences doctrine.” (§ 1172.6, subd. (a); see Patton, at p. 558;
People v. Delgadillo (2022) 14 Cal.5th 216, 223, fn. 3; People v.
Rodriguez (2024) 103 Cal.App.5th 451, 457.)
Section 1172.6 authorizes a person convicted of felony
murder, murder under the natural and probable consequences
doctrine, or attempted murder under the natural and probable
consequences doctrine, to petition the superior court to vacate the
conviction and resentence the defendant on any remaining counts
if he or she could not now be convicted of murder or attempted
murder because of the legislative changes to the definitions of
murder. (See People v. Oyler, supra, 17 Cal.5th at p. 835]; People
7
v. Arellano, supra, 16 Cal.5th at pp. 468-469; People v. Curiel,
supra, 15 Cal.5th at pp. 449-450.) If a section 1172.6 petition
contains all the required information, the court must appoint
counsel to represent the petitioner if requested. (§ 1172.6,
subd. (b)(1)(A), (b)(3); Patton, supra, 17 Cal.5th at p. 562; People
v. Lewis (2021) 11 Cal.5th 952, 962-963.) The People must file a
response to the petition, the petitioner may file a reply, and the
court must hold a hearing to determine whether the petitioner
has made a prima facie showing he or she is entitled to relief.
(§ 1172.6, subd. (c); People v. Antonelli (2025) 17 Cal.5th 719, 724;
Patton, at p. 556.)
Where, as here, the petitioner has made the requisite
prima facie showing he or she is entitled to relief under
section 1172.6, the court must issue an order to show cause and
hold an evidentiary hearing to determine whether to vacate the
murder conviction and resentence the petitioner on any
remaining counts. (§ 1172.6, subd. (d)(1); People v. Oyler, supra,
17 Cal.5th at p. 836; Rodriguez, supra, 110 Cal.App.5th at
p. 465.) At that hearing the court 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); see Oyler, at p. 836; Rodriguez, at p. 465.)
The petitioner and the prosecutor may also offer new or
additional evidence “to meet their respective burdens.” (§ 1172.6,
subd. (d)(3); see People v. Gentile, supra, 10 Cal.5th at
pp. 853-854; People v. Zavala (2024) 105 Cal.App.5th 366, 373
(Zavala).)
“Ordinarily, a trial court’s denial of a section 1172.6
petition is reviewed for substantial evidence.” (People v. Reyes
(2023) 14 Cal.5th 981, 988; see People v. Guiffreda (2023)
8
87 Cal.App.5th 112, 125; People v. Vargas (2022) 84 Cal.App.5th
943, 951.) “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.” (Reyes, at p. 988, internal quotation marks omitted; see
People v. Davis (2024) 107 Cal.App.5th 500, 509; People v.
Mitchell (2022) 81 Cal.App.5th 575, 591 (Mitchell)). “‘Our job on
review is different from the trial judge’s job in deciding the
petition. While the trial judge must review all the relevant
evidence, evaluate and resolve contradictions, and make
determinations as to credibility, all under the reasonable doubt
standard, our job is to determine whether there is any
substantial evidence, contradicted or uncontradicted, to support a
rational fact finder’s findings beyond a reasonable doubt.’”
(Davis, at p. 509; see Guiffreda, at p. 125; People v. Clements
(2022) 75 Cal.App.5th 276, 298.)
“The admission of evidence is usually reviewed for an abuse
of discretion [citation], but a court abuses its discretion when it
misapprehends the pertinent law [citation]. Whether use
immunity exists” is a question of law “we review de novo.”
(People v. Duran (2022) 84 Cal.App.5th 920, 927-928 (Duran);
accord, Zavala, supra, 105 Cal.App.5th at p. 373.)
9
B. The Superior Court Did Not Err in Admitting
Statements Wesson Made to the Parole Board
As discussed, section 1172.6, subdivision (d)(3), authorizes
the parties to introduce “new or additional evidence” at the
evidentiary hearing. “It is well settled that a defendant’s
statements in a parole risk assessment report and testimony at a
parole hearing fall within the ambit of ‘“new or additional
evidence.”’” (Zavala, supra, 105 Cal.App.5th at p. 373; see
Rodriguez, supra, 110 Cal.App.5th at p. 466; Duran, supra,
84 Cal.App.5th at p. 927; Mitchell, supra, 81 Cal.App.5th at
p. 586; People v. Anderson (2022) 78 Cal.App.5th 81, 93; Myles,
supra, 69 Cal.App.5th at p. 703.)
Wesson argues that using statements he made at his parole
hearing against him at the evidentiary hearing under
section 1172.6, subdivision (d)(3), “implicates substantially the
same set of concerns identified by the California Supreme Court
in Coleman,” supra, 13 Cal.3d 867. Wesson urges us to follow the
dissenting opinion in Mitchell, supra, 81 Cal.App.5th 575, which
concluded admitting the defendant’s testimony before the parole
board was “fundamentally unfair” under Coleman. (Mitchell, at
p. 604 (dis. opn. of Stratton, P. J.) We agree with the majority
opinion in Mitchell, and every court that has addressed the issue,
Coleman does not apply to evidentiary hearings under
section 1172.6, subdivision (d)(3).
In Coleman, supra, 13 Cal.3d 867 the defendant was on
probation when he committed a crime that justified revoking his
probation and filing independent criminal charges. (Id. at pp.
871-872.) After moving unsuccessfully to continue the probation
revocation hearing until after the criminal proceedings (on the
new case) had concluded, the defendant argued “the revocation of
10
his probation in advance of trial denied him procedural due
process because he was forced to forego his opportunity to testify
in his own behalf at his revocation hearing in order to avoid
incriminating himself at his pending trial.” (Id. at pp. 872-873.)
The Supreme Court held “permitting a probationer’s testimony at
his revocation hearing to be used against him at the subsequent
criminal trial for the very misconduct at issue in the revocation
proceeding” would “adversely affect[ ]” at least two of “the many
and varied policies underlying the privilege against self-
incrimination.” (Id. at p. 875.) First, the prosecution’s heavy
burden in a criminal trial “to prove through its own investigation
the guilt of the defendant may be substantially lightened if the
prosecution is allowed to take advantage of the defendant’s
testimony at a prior probation revocation hearing.” (Id. at
p. 876.) Second, “when an alleged probation violation also
constitutes a criminal offense for which the probationer might
subsequently be prosecuted,” the probationer may be forced “to
choose between the privilege [against self-incrimination] and his
opportunity to be heard at his revocation hearing.” (Id. at
p. 878.) The Supreme Court in Coleman declared “a judicial rule
of evidence” that, upon a timely objection, “the 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,” except
for limited impeachment or rebuttal purposes. (Id. at p. 889.)
The concerns in Coleman are not present in proceedings
under section 1172.6 because the Fifth Amendment privilege
against self-incrimination does not apply at the evidentiary
11
hearing. (See Rodriguez, supra, 110 Cal.App.5th at p. 466
[defendant “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”];
Zavala, supra, 105 Cal.App.5th at p. 376 [same]; Duran, supra,
84 Cal.App.5th at p. 930 [same]; Mitchell, supra, 81 Cal.App.5th
at p. 589 [same]; Myles, supra, 69 Cal.App.5th at p. 706 [same].)
“The Fifth Amendment privilege against self-incrimination
protects persons from being compelled by ‘“governmental
coercion”’ to serve as witnesses against themselves in ‘“any
criminal case.”’ [Citation.] A section [1172.6] hearing, however,
‘“is not a trial de novo on all the original charges.” [Citation.]
Rather, it is a postconviction proceeding “due to the Legislature’s
inclusion of section [1172.6] 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.”’” (Myles, at pp. 705-706; accord, Rodriguez, at p. 467;
Zavala, at p. 376; Mitchell, at p. 588; see Duran, at p. 930 [“the
section 1172.6 evidentiary hearing where [the] defendant’s . . .
parole risk assessment statement was used is . . . neither a
subsequent retrial nor a new sentencing”].)
In addition, as several courts have pointed out, “the Fifth
Amendment protects individuals from government coercion.”
(Myles, supra, 69 Cal.App.5th at p. 706.) But Wesson, not the
government, initiated the petition process under section 1172.6.
(See Rodriguez, supra, 110 Cal.App.5th at p. 467 [section 1172.6
requires defendants “seeking its ‘“ameliorative benefits”’ to
initiate the process by filing a petition”]; Mitchell, supra,
12
81 Cal.App.5th at p. 589 [the resentencing process under
section 1172.6 “could not even begin until [the defendant] gave
the court his statement, under oath, about his role in the crime to
which he pleaded guilty”]; Myles, at p. 706 [defendant “was not
compelled to file a section [1172.6] petition”].)
Wesson also argues that, even if the privilege against self-
incrimination “is not implicated” here, “basic principles of
procedural fairness surely are.” Wesson asserts it would be
“unfair” to require the defendant to choose between “‘self-
accusation, perjury or injurious silence.’” The unfairness Wesson
suggests, however, is one that precludes him from, on the one
hand, encouraging the parole board to grant him parole by fully
accepting responsibility for his crimes while, on the other hand,
seeking a reduction in his sentence by minimizing his role in his
crimes. Precluding Wesson from telling two versions of what
happened to obtain a benefit (or two) is not unfair. (See Mitchell,
supra, 81 Cal.App.5th at p. 590 [“It would be unjust for [the
defendant] to gain an advantage his sworn description shows he
does not merit.”].)
Indeed, the Supreme Court in Coleman, supra, 13 Cal.3d
867 stated the use-immunity rule did not apply where the
defendant’s testimony from the probation revocation hearing and
the defendant’s testimony at the criminal proceeding “are so
clearly inconsistent as to warrant the trial court’s admission of
the revocation hearing testimony or its fruits in order to reveal to
the trier of fact the probability that the probationer has
committed perjury at either the trial or the revocation hearing.”
(Id. at p. 889.) Wesson stated in his petition under penalty of
perjury he was not the actual killer. He stated under oath at his
parole hearing that he intended to and did kill Allen and that he
13
shot Allen multiple times. That’s a pretty clear contradiction.
Thus, even under Coleman, the superior court did not err in
admitting Wesson’s statements at his parole hearing “for
purposes of impeachment or rebuttal.” (Ibid.; see Duran, supra,
84 Cal.App.5th at pp. 931-932 [defendant’s statement in a parole
risk assessment report was “‘clearly inconsistent’ with a
disclaimer of an intent to kill [citation], and hence was admissible
even if we assume that Coleman applies”]; see also Coleman, at
p. 892 [privilege against self-incrimination “does not . . .
encompass a right of an accused to lie in his own behalf at trial”].)
C. The Superior Court Did Not Err in Denying Wesson’s
Petition Under Section 1172.6
A defendant who was the actual perpetrator of murder or
attempted murder is generally ineligible for relief under
section 1172.6. (§ 189, subd. (e)(1); see People v. Jasso (2025)
17 Cal.5th 646, 688 [actual killer is ineligible for relief under
section 1172.6]; People v. Strong, supra, 13 Cal.5th at p. 710
[same]; People v. Garcia (2022) 82 Cal.App.5th 956, 973 [“As a
matter of law, resentencing relief under section 1172.6 is not
available to an ‘actual killer.’”].) The statements Wesson made at
his parole hearing established he shot and killed Allen.
Substantial evidence supported the superior court’s finding
beyond a reasonable doubt Wesson was the actual killer, and the
court did not err in ruling he was ineligible for relief under
section 1172.6.
14
DISPOSITION
The order denying Wesson’s petition under section 1172.6
is affirmed.
SEGAL, Acting P. J.
We concur:
FEUER, J.
STONE, J.
15