The opinion
Filed 9/29/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A161450
v.
ELNORA MYLES, (Alameda County
Super. Ct. No. 150006)
Defendant and Appellant.
Defendant Elnora Myles appeals from the denial of her petition for
resentencing pursuant to Penal Code1 section 1170.95. After issuing an order
to show cause and holding an evidentiary hearing, the trial court concluded
defendant was not entitled to resentencing relief because she was not
convicted under a theory of felony murder or murder under the natural and
probable consequences doctrine, and because defendant was the actual killer.
On appeal, defendant contends the trial court prejudicially erred by
admitting and considering information contained in a parole comprehensive
risk assessment report and the transcript of her parole suitability hearing
because such evidence is not “new or additional evidence” within the meaning
of section 1170.95, subdivision (d)(3). Alternatively, defendant contends the
evidence was inadmissible because postplea admissions cannot be used to
prove the elements of the crime, and because she should be entitled to use
All further statutory references are to the Penal Code unless
1
otherwise indicated.
immunity for statements made in connection with her parole suitability
hearing. We conclude the trial court did not err, but even if it did, any error
was harmless under the circumstances of this case. Accordingly, we affirm.
I. BACKGROUND
A. The Murder and Defendant’s Guilty Plea2
Defendant reported the victim, Cedric White, missing in February
2004. At the time, defendant was living in White’s home. In April, police
executed a search warrant in the home. They found White’s body wrapped in
cellophane and entombed beneath a basement workbench, hidden behind
installed particleboard. An autopsy revealed signs of blunt trauma to his
head. Police also found evidence that defendant had used White’s
identification to open a number of credit accounts in his name, with
defendant as an authorized user. Purchases on the accounts totaled over
$13,000.
When defendant was questioned by police about White’s whereabouts,
she first indicated she had last seen him a week before, leaving in a cab with
a lady friend, headed to China to celebrate the completion of his “ ‘Jazz
history’ ” book. In a letter to the probation department, the prosecutor
represented that during one interview with police, defendant claimed White
was killed by a fall down the stairs, which occurred during an argument with
defendant. Defendant told police a female boarder was in White’s house at
the time of the argument “but [defendant] was vague about what [the
boarder] saw or did.” When police interviewed the boarder, she “adamantly
denied” being present.
2 This brief summary of background facts is taken from our prior
nonpublished opinion, People v. Myles (Apr. 30, 2007, A114601). Additional
facts concerning the crime, primarily from the preliminary examination, are
discussed below.
2
On May 27, 2005, an information was filed charging defendant with
murder (§ 187, subd. (a)), alleging that she personally inflicted great bodily
injury (§ 1203.075). Defendant was also charged with identity theft (§ 530.5,
subd. (a)), forgery (§ 470, subd. (d)), and four counts of making false financial
statements (§ 532a, subd. (1)).
Defendant entered a plea of no contest to second degree murder in
exchange for dismissal of the other charges and the great bodily injury
allegation. Her counsel stipulated to a factual basis for the plea based on the
preliminary examination and discovery. After unsuccessfully seeking to
withdraw her plea, defendant was sentenced to 15 years to life in prison.
Defendant appealed, and we affirmed the judgment in a nonpublished
opinion, People v. Myles, supra, A114630.
B. Defendant’s Resentencing Petition
In January 2019, defendant filed a petition for resentencing under
section 1170.95, seeking to vacate her 2006 second degree murder conviction
and be resentenced. The trial court appointed counsel for defendant and set
a briefing schedule. The prosecution filed a formal opposition to the petition
and defendant filed a reply and supplemental briefing. The trial court found
the petition established a prima facie case and issued an order to show cause.
The prosecution sought to admit defendant’s statements from a
comprehensive risk assessment report (parole risk assessment) and parole
suitability hearing (parole hearing transcript). In the statements, defendant
admitted killing White and specifically stated she hit him with a metal water
bottle, entombed him in his own house, took advantage of things he owned,
and lied to his family. Defendant said her boyfriend and children were not in
the house when she hit White and her boyfriend “didn’t have a role” in the
murder. Defense counsel objected to the court’s consideration of the parole
3
risk assessment and parole hearing transcript, arguing the evidence was
subject to use immunity, and even if it were admissible, it would be
admissible only for impeachment purposes. The trial court ruled that use
immunity did not apply and admitted the evidence.
At the conclusion of the section 1170.95 hearing, the trial court denied
defendant’s petition on two different grounds: “One, in review of the record of
conviction, which includes the preliminary hearing transcript, the charges
that were filed, in looking at all of that, it does not appear to me that this is a
felony murder case, nor is it a case where the prosecution allegation is that
[defendant] was an aider and abettor and that it was a natural and probable
consequences theory of aiding and abetting. I don’t find that either of those
legal theories are at play in this case.
“And, [defense counsel], you’ve pointed to other people who could
potentially be involved, but there’s no indication in the police reports or the
preliminary hearing that those people were involved; and, in fact,
[defendant], when asked that question specifically at the parole hearing,
confirmed that no one else was involved.
“So one layer is that the theories that are necessary to get relief under
[section] 1170.95 are not at play in this case.
“The second basis for denying relief is I find that [defendant] is the
actual killer in this case. She’s not vicariously liable here. She’s directly
liable. And so for that reason I find that she is not entitled to relief under
Section 1170.95.”
Defendant timely appealed.
4
II. DISCUSSION
A. New or Additional Evidence
Defendant contends the trial court could not consider either the parole
risk assessment and the parole hearing transcript at her section 1170.95
evidentiary hearing because they are not part of the record of conviction or
“new or additional evidence” within the meaning of section 1170.95,
subdivision (d)(3).
1. Applicable law
Senate Bill No. 1437 (2017–2018 Reg. Sess.), effective January 1,
2019 (Senate Bill 1437), revised the felony-murder rule and natural and
probable consequences doctrine in California “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); People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) The bill
amended the definition of malice in section 188, revised the definition of the
degrees of murder to address felony-murder liability in section 189, and
added section 1170.95, “which provides a procedure by which those convicted
of murder can seek retroactive relief if the changes in the law would affect
their previously sustained convictions.” (People v. Gutierrez-Salazar (2019)
38 Cal.App.5th 411, 417, citing Stats. 2018, ch. 1015, §§ 2–4.)
Section 1170.95, subdivision (a) provides that a person convicted of
felony murder or murder under a natural and probable consequences theory
may file a petition with the court for resentencing “when all of the following
conditions apply: [¶] (1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable consequences
5
doctrine. [¶] (2) The petitioner was convicted of first degree or second degree
murder following a trial or accepted a plea offer in lieu of a trial at which the
petitioner could be convicted for first degree or second degree
murder. [¶] (3) The petitioner could not be convicted of first or second degree
murder because of changes to Section 188 or 189 made effective January 1,
2019.”
If the trial court determines, under subdivision (c) of section 1170.95
that the defendant has made “ ‘a prima facie showing’ ” of entitlement to
relief, “the trial court issues an order to show cause, and then must hold a
hearing ‘to determine whether to vacate the murder conviction and to recall
the sentence and resentence the petitioner on any remaining counts in the
same manner as if the petitioner had not . . . previously been sentenced,
provided that the new sentence, if any, is not greater than the initial
sentence.’ ” (Lewis, supra, 11 Cal.5th at p. 960.) At the evidentiary hearing,
the burden of proof is on the prosecution to prove, beyond a reasonable doubt,
that the petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3).)
“The prosecutor and the petitioner may rely on the record of conviction or
offer new or additional evidence to meet their respective burdens.” (Ibid.)
2. Forfeiture
The Attorney General contends defendant has forfeited her challenge to
the admissibility of the parole risk assessment and parole hearing transcript
on the basis they are not “new or additional evidence” within the meaning of
section 1170.95 because she failed to object on those grounds below. We
agree.
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. (Evid. Code, § 353, subd. (a) [error in admitting evidence may not be
6
basis for reversal of judgment unless “an objection to or a motion to exclude
or to strike the evidence . . . was timely made and so stated as to make clear
the specific ground of the objection or motion”]; People v. Anderson (2001)
25 Cal.4th 543, 586 [“a challenge to the admission of evidence is not
preserved for appeal unless a specific and timely objection was made below”].)
“The objection requirement is necessary in criminal cases because a ‘contrary
rule would deprive the People of the opportunity to cure the defect at trial
and would “permit the defendant to gamble on an acquittal at his [or her]
trial secure in the knowledge that a conviction would be reversed on
appeal.” ’ ” (People v. Partida (2005) 37 Cal.4th 428, 434.) Although
defendant objected below that the evidence should be subject to use immunity
and should be used only for impeachment, she did not object that the
evidence was inadmissible under the language of section 1170.95. (See
Partida, at p. 435 [to preserve claim on appeal, objection below must have
been made on same grounds].) Accordingly, she has forfeited her right to
challenge the evidence on that basis here.
Defendant urges us to conclude that any specific failure to object was
not required or should be excused. She relies on several exceptions to the
general rule of appellate procedure that points not raised in the trial court
will not be considered on appeal. She argues that whether the parole risk
assessment and parole hearing transcript are “new or additional evidence” is
a question of law on undisputed facts, is an unsettled question, and presents
an important legal issue for our consideration. Our general authority to
exercise discretion to consider issues raised for the first time on appeal,
however, is constrained by specific statutory command when the issue
concerns the admission or exclusion of evidence. (Evid. Code, § 353
[judgment shall not be reversed “by reason of the erroneous admission of
7
evidence” unless timely and specific objection is made in the trial court].)
Our Supreme Court clarified this principle in People v. Williams (1998)
17 Cal.4th 148. Discussing the rule that “[a]n appellate court is generally not
prohibited from reaching a question that has not been preserved for review
by a party,” the court explained the appellate court “is in fact barred when
the issue involves the admission (Evid. Code, § 353) or exclusion (id., § 354) of
evidence.” (Id. at p. 161, fn. 6, italics added; People v. Viray (2005)
134 Cal.App.4th 1186, 1210.)
Even were we to review defendant’s claim on the merits, however, we
would reject it.
3. Statutory Construction
Defendant argues the parole risk assessment and parole hearing
transcript do not constitute “new or additional evidence” within the meaning
of section 1170.95 because the “purpose and statutory history underlying
section 1170.95 demonstrates the Legislature intends the 2019 statutory
provisions, including the evidentiary hearing, to be circumscribed by the
original trial proceedings, and its admitted or then existing admissible
evidence.”
“The proper interpretation of a statute is a question of law we review de
novo. [Citations.] ‘ “ ‘ “As in any case involving statutory interpretation, our
fundamental task here is to determine the Legislature’s intent so as to
effectuate the law’s purpose. [Citation.] We begin by examining the statute’s
words, giving them a plain and commonsense meaning.” ’ ” ’ [Citation.]
‘ “[W]e look to ‘the entire substance of the statute . . . in order to determine
the scope and purpose of the provision . . . . [Citation.]’ [Citation.] That is,
we construe the words in question ‘ “in context, keeping in mind the nature
and obvious purpose of the statute . . . .” [Citation.]’ [Citation.] We must
8
harmonize ‘the various parts of a statutory enactment . . . by considering the
particular clause or section in the context of the statutory framework as a
whole.’ ” ’ ” (Lewis, supra, 11 Cal.5th at p. 961.) “ ‘If no ambiguity appears in
the statutory language, we presume that the Legislature meant what it said,
and the plain meaning of the statute controls.’ ” (People v. Blackburn (2015)
61 Cal.4th 1113, 1123.) “We will follow that meaning unless doing so would
lead to absurd results the Legislature did not intend.” (People v. Betts (2020)
55 Cal.App.5th 294, 298.)
Here, the plain language of the statute allows both the petitioner and
the prosecutor to rely on “the record of conviction or offer new or additional
evidence to meet their respective burdens.” (§ 1170.95, subd. (d)(3), italics
added.) The term “new or additional evidence” is not defined in the statute,
but the ordinary meaning of the word “new,” unbounded by further definition
or restriction in the statutory text, suggests the Legislature intended to allow
both the prosecution and defendant to rely on evidence that becomes
available after a trial or plea, whether the evidence previously existed or not.
(See People v. Williams (2020) 57 Cal.App.5th 652, 661 (Williams) [“In
allowing for the section 1170.95 postconviction proceeding, the Legislature
gave the superior court unfettered discretion to consider ‘evidence’ without
any restriction at the subdivision (d)(3) hearing to determine the petitioner’s
eligibility for resentencing.”]; Couzens et al., Sentencing California Crimes
(The Rutter Group 2021) § 23:51 [“[Senate Bill] 1437 does not specify the
exact scope and nature of the ‘new evidence’ the parties may offer. The
statute appears to permit live testimony and admission of new physical
evidence.”].)
A construction of the statute that takes a broad view of “new or
additional evidence” also comports with the purpose of the statute. (Lewis,
9
supra, 11 Cal.5th at p. 961 [courts must construe statute in light of statutory
purpose].) At the evidentiary hearing, the prosecution must prove, beyond a
reasonable doubt, that the defendant is ineligible for resentencing.
(§ 1170.95, subd. (d)(3).) Given that the clear legislative intent to provide the
defendant an opportunity to challenge his or her conviction retroactively
under the new law and to require the prosecution to prove the defendant’s
ineligibility for resentencing beyond a reasonable doubt, it is a logical choice
to allow both parties to locate and introduce evidence they did not have a
chance to present in the original guilt proceeding. (See, e.g., People v. Gentile
(2020) 10 Cal.5th 830, 856 [“We agree that the Legislature authorized the
parties to offer new or additional evidence during the section 1170.95 process
in order to allow the parties to explore issues they did not explore under the
prior state of the law. The statute contemplates that such evidence may
inform whether a conviction remains valid despite the ameliorative
provisions of Senate Bill 1437.”]; People v. Lopez (2020) 56 Cal.App.5th 936,
950, review granted Feb. 10, 2021, S265974 (Lopez) [in making the
“ineligibility inquiry” required by § 1170.95, subd. (d)(3), “the trial court may
be confronted with new evidence [citation] and frequently will be asked to
find newly relevant facts not previously admitted or found by a trier of fact”];
People v. Duchine (2021) 60 Cal.App.5th 798, 813 [“By allowing new evidence
and providing for an evidentiary hearing, the Legislature plainly intended
that the issues concerning whether the defendant was guilty under theories
of murder not previously or necessarily decided would be resolved anew”].)
Moreover, an understanding of “new or additional evidence” that allows
parties to introduce evidence that did not previously exist makes sense given
that section 1170.95 applies to convictions by plea, not just jury trials. In
light of the limited record often available in cases resolved by plea, the
10
provision allowing both parties to present evidence available for the first time
postconviction enables them to meet their respective burdens of proof. (See,
e.g., People v. Rodriguez (2020) 58 Cal.App.5th 227, 239–240, review granted
Mar. 10, 2021, S266652 [rejecting harmless error standard for a trial court at
§ 1170.95 hearing in favor of an independent fact finder standard because,
“Given the limited record [in plea cases], it would be impossible to assess
whether a still-valid ground for a murder conviction existed, let alone to
determine beyond a reasonable doubt that the valid ground was the basis for
the plea. Yet section 1170.95 contemplates the same procedure to determine
eligibility in plea cases as in cases in which the murder conviction was
reached at trial.”].)
Defendant argues, however, that the plain meaning of “new” creates an
“ambiguity or potential ambiguity” because it “can mean an unlimited variety
of evidence created at any time or something previously in existence but
recently acquired.” (Italics added.) In support of her argument the statutory
language means only the latter, defendant asks us to look to the legislative
history of section 1170.95. Specifically, defendant contends the development
of the statutory language through the legislative process shows the
Legislature intended to confine “new evidence” to “the known facts and
circumstances, admitted evidence and/or the then existing but non-admitted
evidence” at the time of the original guilt proceedings.
The first version of Senate Bill 1437, as introduced on February 16,
2018, required the trial court, upon receipt of a petition, to “request” copies of
the charging documents, the abstract of judgment, the reporter’s transcript of
any plea, the sentencing transcript, the verdict forms from any trial, and
“[a]ny other information the court finds relevant to its decision, including
information related to the charging, conviction, and sentencing of the
11
petitioner’s codefendants in the trial court.” (Sen. Bill No. 1437 (2017–2018
Reg. Sess.) as introduced Feb. 16, 2018, § 6.) The original version of the bill
then directed the trial court to notify the prosecution and defense, request a
response, and if the evidence was sufficient that the petitioner falls within
the provisions of the statute, hold a hearing to determine whether the
petitioner was entitled to be resentenced. (Ibid.)
Subsequently, the Senate amended Senate Bill 1437 to permit only the
petitioner at a section 1170.95 hearing to present new or additional evidence,
while still allowing the prosecution to rely only on the record of conviction.
(Sen. Amend. to Sen. Bill No. 1437 (2017–2018 Reg. Sess.) May 25, 2018, § 6
[“The prosecutor may rely on the record of conviction to meet its burden, but
the petitioner may offer new or additional evidence to meet the burden of
going forward or in rebuttal of the prosecution’s evidence.”].) The bill was
again amended in the Assembly on August 20, 2018. The third version of the
bill added section 1170.95 and provided in subdivision (d)(3) the language
enacted into law that now appears in the statute: “The prosecutor and the
petitioner may rely on the record of conviction or offer new or additional
evidence to meet their respective burdens.” (Assem. Amend. to Sen. Bill
No. 1437 (2017–2018 Reg. Sess.) Aug 20, 2018, § 4; Stats. 2018, ch. 1015, § 4,
eff. Jan. 1, 2019.)
Defendant contends this progression shows the drafter’s intention was
to test a potentially eligible conviction based on the evidence “surrounding
the original trial.” She argues that intent was stated in the original version
of the statute because eligibility for relief depended on evidence adduced at
the original trial against the petitioner or against a codefendant in a separate
trial. But in allowing evidence from the separate trial of a codefendant, the
original version of the statute reflects legislative intent to allow evidence
12
beyond the petitioner’s record of conviction. If a separate trial took place
after the petitioner’s conviction, for example, evidence, including testimony,
introduced at the codefendant’s trial may not have been “in existence” at the
time of the petitioner’s trial. Moreover, the originally proposed language
broadly allowed the trial court to consider “[a]ny other information the court
finds relevant to its decision.” (Sen. Bill No. 1437 (2017–2018 Reg. Sess.) as
introduced Feb. 16, 2018, § 6, ch. 16.) Such language does not reflect an
intent to limit evidence to that available at the time of the petitioner’s
conviction.
Defendant also recognizes the second version of Senate Bill 1437, which
allowed only the petitioner to offer new or additional evidence, “suggests the
Legislature wanted to give the petitioner, among other things, the ability to
testify at a resentencing hearing if he had chosen to exercise his Fifth
Amendment right to remain silent at trial.” Clearly, a defendant testifying at
a section 1170.95 evidentiary hearing who had previously invoked the Fifth
Amendment at trial would be offering precisely the type of “new evidence”
available for the first time posttrial that defendant argues the statute does
not allow. Defendant does not explain why a defendant’s testimony at an
evidentiary hearing would be admissible as “new” evidence, but the same
defendant’s testimony from a parole hearing would not be. In both cases, the
defendant’s testimony regarding his or her role in the crime is provided
posttrial and constitutes evidence about facts and circumstances existing at
the time of the crime that could have been admitted at trial.3
3 In her reply brief, defendant argues testimony from a parole hearing
is different from live testimony offered at a section 1170.95 hearing because
in the parole context, a defendant may feel pressured to admit culpability to
be found suitable for parole. This argument, however, relates to fairness, and
whether a defendant should be entitled to a type of use immunity, not
13
Defendant next acknowledges the Legislature “[a]pparently realiz[ed]
the inequity” in the language of the second version of Senate Bill 1437 that
allowed only the defendant to present new or additional evidence, and thus
amended the statute to allow both parties to introduce new evidence. But
defendant contends the change allowing both parties to present such evidence
“did not signal the Legislature’s intent to open the door to any and every
piece of potential evidence, including evidence that was not available at the
time of the underlying guilt proceeding, and created after the final
judgment.” Defendant fails to explain, however, how the amendment
allowing the prosecution as well as the defense to present new or additional
evidence reflects an intent to limit evidence to that available at the time of
conviction.
Nor are we persuaded that the legislative amendments were
formulated to address concerns expressed by the California District Attorneys
Association (CDAA) as defendant argues. Defendant points to the fact that
the CDAA opposed the original and second versions of Senate Bill 1437 in
part because the bill would “require the litigation of facts previously not
litigated in the original case, particularly in cases that resolved through a
plea.” (Sen. Com. on Pub. Safety, History and Comments on Sen. Bill
No. 1437 (2017–2018 Reg. Sess.) as introduced Feb. 16, 2018, for hearing on
Apr. 24, 2018, p. 10; Assem. Com. on Pub. Safety, Sen. Bill No. 1437 (2017–
2018 Reg. Sess.) as amended May 25, 2018, for hearing on June 26, 2018,
p. 8.) Defendant argues the Legislature “obviously took these concerns
seriously, as it changed the language and ultimately enacted the legislation
whether such evidence is “new or additional” evidence within the meaning of
section 1170.95. We address defendant’s argument regarding the compulsion
to admit culpability at parole hearings below.
14
in its present state.” To the contrary, however, the CDAA’s comment
specifically argued that “by placing the burden on the prosecution to prove
beyond a reasonable doubt that petitioners do not qualify for resentencing,”
the Bill would require litigation of facts not previously decided. (Sen. Com.
on Pub. Safety, History and Comments on Sen. Bill No. 1437 (2017–2018 Reg.
Sess.) as introduced Feb. 16, 2018, for hearing on Apr. 24, 2018, p. 10; Assem.
Com. on Pub. Safety, Sen. Bill No. 1437 (2017–2018 Reg. Sess.) as amended
May 25, 2018, for hearing on June 26, 2018, p. 8.) As discussed above, the
requirement that the prosecution prove ineligibility beyond a reasonable
doubt was retained in the law as enacted. (§ 1170.95, subd. (d)(3).) This fact
strongly suggests the Legislature concluded that providing retroactive relief
to petitioners convicted under now-invalid theories of murder was more
important than the CDAA’s expressed concern about avoiding new litigation.4
Defendant also urges us to look to other statutes that allow the
introduction of “new evidence,” including the statutes governing new trial
motions (§ 1181) and petitions for writ of habeas corpus (§ 1473) to decipher
the meaning of the phrase “new or additional evidence.” Those statutes,
however, contain their own definitions of “new evidence.” Section 1181
allows a court to grant a motion for new trial “[w]hen new evidence is
discovered material to the defendant, and which he [or she] could not, with
reasonable diligence, have discovered and produced at the trial.” (§ 1181,
subd. 8.) A writ of habeas corpus is available when “[n]ew evidence exists
4 We likewise reject defendant’s argument that allowing litigation of
facts not previously decided implicates a defendant’s Sixth Amendment right
to have a jury determine the meaning of new evidence. (See, e.g., People v.
James (2021) 63 Cal.App.5th 604, 608–611; Lopez, supra, 56 Cal.App.5th at
pp. 957–958, review granted; People v. Howard (2020) 50 Cal.App.5th 727,
740; People v. Anthony (2019) 32 Cal.App.5th 1102, 1156 [§ 1170.95
petitioners do not have 6th Amend. trial rights].)
15
that is credible, material, presented without substantial delay, and of such
decisive force and value that it would have more likely than not changed the
outcome at trial.” (§ 1473, subd. (b)(3)(A).) The statute defines “new
evidence” as “evidence that has been discovered after trial, that could not
have been discovered prior to trial by the exercise of due diligence, and is
admissible and not merely cumulative, corroborative, collateral, or
impeaching.” (§ 1473, subd. (b)(3)(B).) Similarly, subdivision (f) of
section 1473 authorizes a petition of habeas corpus on the basis of “other new
evidence that could not have been previously known by the petitioner with
due diligence,” and section 1473.6 allows a petitioner to move to vacate a
judgment on the basis of “ ‘newly discovered evidence,’ ” defined as “evidence
that could not have been discovered with reasonable diligence prior to
judgment” (§ 1473.6, subds. (a) & (b)).
In these statutes, the Legislature has defined or placed limits on the
introduction of “new evidence,” demonstrating that it knows how to limit the
admissibility of such evidence when it intends to do so. Defendant argues we
should apply the same restrictions here, but there is no textual evidence of
similar legislative intent in section 1170.95, subdivision (d)(3). (See, e.g.,
People v. Wilson (2020) 53 Cal.App.5th 42, 50–52 [rejecting interpretation of
§ 1170.95, subd. (g) that would require the court to add words to the statute
that do not currently exist]; People v. Roach (2016) 247 Cal.App.4th 179, 185
[“Additional restrictions on a trial court’s authority at resentencing could
have been included in section 1170.18, but were not.”]; Vasquez v. State of
California (2008) 45 Cal.4th 243, 253 [“We may not rewrite the statute to
conform to an assumed intention that does not appear in its language.”].)
16
In sum, the trial court did not err in admitting and considering the
parole risk assessment report and parole hearing transcript at the
section 1170.95 evidentiary hearing.
B. People v. Trujillo
Defendant next asserts the trial court erred in admitting the parole
hearing exhibits because even if the evidence was admissible as “new or
additional evidence” within the meaning of section 1170.95,
subdivision (d)(3), it is inadmissible under People v. Trujillo (2006) 40 Cal.4th
165, 179 (Trujillo) to prove the elements of the crime.
As an initial matter, we again conclude defendant has forfeited this
claim on appeal, because she failed to object on this basis in the trial court.
(Evid. Code, § 353, subd. (a); People v. Partida, supra, 37 Cal.4th at p. 435.)
Even considered on the merits, however, we reject her claim.
In Trujillo, the defendant was convicted by jury of felony assault by
means of force likely to produce great bodily injury. In bifurcated
proceedings, the trial court was asked to determine whether a prior
conviction for inflicting corporal injury (§ 273.5, subd. (a)) qualified as a
strike. (Trujillo, supra, 40 Cal.4th at pp. 169–170.) The prosecution argued
the prior conviction qualified in part based on a probation report prepared
after the defendant’s plea but before sentencing in which the defendant
admitted that he “ ‘stuck [the victim] with [a] knife.’ ” (Id. at p. 170.) Our
Supreme Court held that the defendant’s admission in the probation report
did not necessarily reflect the nature of the crime of which he was convicted,
and thus could not be used by the prosecution to establish the prior
conviction was for a serious felony. (Id. at p. 179.)
Trujillo is distinguishable. In that case, the trial court considered
whether a prior conviction qualified as a strike and the probation report at
17
issue potentially would have been used to increase the defendant’s
punishment. (Trujillo, supra, 40 Cal.4th at p. 175.) Here, section 1170.95 is
an act of legislative lenity in that a defendant who qualifies for relief may
receive a decreased punishment. (See, e.g., People v. Perez (2018) 4 Cal.5th
1055, 1063–1064 [trial court’s factfinding based on new evidence regarding
the petitioner’s eligibility for resentencing under Prop. 36 does not implicate
6th Amend. rights because retroactive application of benefits are legislative
act of lenity; “a factual finding that results in resentencing ineligibility does
not increase the petitioner’s sentence; it simply leaves the original sentence
intact”].) Contrary to defendant’s argument, the prosecution in this case was
not using her postconviction admissions to “ ‘convict’ ” her, but to prove her
ineligibility for a sentence reduction based on changes in the law under a
retroactive statutory resentencing procedure.
Moreover, in determining whether a prior conviction qualifies as a
strike—the issue under consideration in Trujillo—the court is limited to
considering the record of conviction. (Trujillo, supra, 40 Cal.4th at p. 180;
People v. Guerrero (1988) 44 Cal.3d 343, 355.) As the Guerrero court
explained, the rationale for this limitation is to prevent “the prosecution from
relitigating the circumstances of a crime committed years ago and thereby
threatening the defendant with harm akin to double jeopardy and denial of a
speedy trial.” (Guerrero, at p. 355.) Here, however, double jeopardy
principles are not at stake because defendant is voluntarily seeking to vacate
her prior conviction, not subjecting herself to a new trial or the possibility of
increased punishment. (See § 1170.95, subd. (d)(1) [eligible petitioners may
be resentenced provided the new sentence is not greater than the initial
sentence]; People v. Hernandez (2021) 60 Cal.App.5th 94, 111 [evidentiary
hearing under § 1170.95 “does not implicate double jeopardy because
18
section 1170.95 ‘involves a resentencing procedure, not a new prosecution’ ”];
People v. Hall (2019) 39 Cal.App.5th 831, 838–846 [trial court could use
reliable hearsay from probation and police reports in petition for resentencing
under Prop. 64]; People v. Sledge (2017) 7 Cal.App.5th 1089, 1095 [limited
use of hearsay such as that found in probation reports is permitted in Prop.
47 eligibility hearing, a type of sentencing proceeding].)
Further, in a section 1170.95 evidentiary hearing, the trial court is not
limited to the record of conviction—rather, as discussed at length above—the
parties may present “new or additional evidence.” (§ 1170.95, subd. (d)(3).)
Accordingly, the Trujillo court’s reasoning does not apply here, because the
Legislature clearly and expressly made provision for the court to go beyond
the record of conviction to determine whether a defendant qualifies for relief
based on changes in the law.
C. Use Immunity
Next, we address defendant’s argument that the trial court erred
because she was entitled to a form of use immunity for her statements and
testimony in connection with her suitability for parole. Defendant relies on
People v. Coleman (1975) 13 Cal.3d 867 (Coleman) and its progeny to argue
that statements made in a parole suitability hearing and during a risk
assessment should be inadmissible as substantive evidence of guilt.
In Coleman, the California Supreme Court held a defendant’s
statement from a probation revocation proceeding could not be used against
him by the prosecution to lighten its burden of proof at trial. (Coleman,
supra, 13 Cal.3d at p. 889.) The court reasoned that a defendant should not
be compelled to choose between the privilege against self-incrimination at
trial and the exercise of the right to be heard at a probation revocation
hearing. (Id. at p. 878.) To resolve the tension between competing rights, the
19
court created a “judicially declared exclusionary rule” that a probationer’s
revocation hearing testimony is inadmissible during the prosecution’s case-in-
chief. The intent of the rule “is to encourage the fullest possible truthful
disclosure of relevant facts and circumstances at the revocation hearing by
allowing a probationer who does testify at his revocation hearing nonetheless
to enjoy unimpaired the full protection of the privilege against self-
incrimination at his subsequent trial.” (Id. at p. 892.)
Defendant argues the rule established in Coleman has been extended to
other contexts to preclude the prosecution’s use of a defendant’s statements
as substantive evidence of guilt when one constitutional right is pitted
against another. (See, e.g., People v. Ledesma (2006) 39 Cal.4th 641, 691–694
[privileged disclosures in habeas corpus proceeding based on ineffective
assistance of counsel did not waive attorney-client privilege for purpose of
retrial]; People v. Knight (2015) 239 Cal.App.4th 1, 5–8 [statements made in
support of motion to substitute appointed counsel are subject to use
immunity]; Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 498–503
[statements made during a court-compelled mental examination cannot be
used in a subsequent trial]; Ramona R. v. Superior Court (1985) 37 Cal.3d
802, 806–811 [statements made by a minor to a probation officer and during
a fitness hearing inadmissible as substantive evidence against minor at
trial]; Simmons v. United States (1968) 390 U.S. 377, 393–394 [defendant’s
testimony in support of motion to suppress inadmissible at subsequent
criminal trial].) Defendant urges us to adopt the same approach with respect
to section 1170.95 evidentiary hearings.
We find defendant’s reliance on these authorities unavailing. The Fifth
Amendment privilege against self-incrimination protects persons from being
compelled by “ ‘governmental coercion’ ” to serve as witnesses against
20
themselves in “ ‘any criminal case.’ ” (People v. Tom (2014) 59 Cal.4th 1210,
1222–1223, italics added.) A section 1170.95 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 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.’ ” (Williams, supra, 57 Cal.App.5th at p. 661, quoting
People v. Wilson, supra, 53 Cal.App.5th at p. 53; see, e.g., People v. Anthony,
supra, 32 Cal.App.5th p. 1156 [§ 1170.95 petitioners do not have 6th Amend.
trial rights].) Because 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.
Moreover, the Fifth Amendment protects individuals from government
coercion. Here, defendant was not compelled to file a section 1170.95
petition, nor to testify at her parole hearing, nor to participate in her risk
assessment interview. Indeed, as the trial court noted and defendant
acknowledges, parole cannot be conditioned on admission of guilt to a certain
version of the crime. (§ 5011, subd. (b); Cal. Code Regs., tit. 15, § 2236; In re
Swanigan (2015) 240 Cal.App.4th 1, 14 [parole board cannot rely on fact that
inmate insists on his innocence to deny parole]; In re McDonald (2010)
189 Cal.App.4th 1008, 1023 [“the express provisions of Penal Code
section 5011 and section 2236 of Title 15 of the California Code of
Regulations prohibit requiring an admission of guilt as a condition for release
on parole”].) Defendant was also expressly advised at her parole hearing that
she had the option to not discuss the commitment offense and that choice
would not be held against her. Defendant opted instead to discuss it and
21
testified under oath about 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 defendant bearing on some of the same
issues.
In sum, defendant has not demonstrated that the same principles and
rationale underlying the judicially created exclusionary rule formulated in
Coleman and applicable in criminal trials apply in a section 1170.95
resentencing hearing.
D. Harmless Error
In any event, assuming the trial court erred in admitting the parole
assessment report and transcript of the parole hearing, reversal is not
required unless it is reasonably probable defendant would have obtained a
more favorable outcome had the evidence been excluded. (People v. Watson
(1956) 46 Cal.2d 818, 836; People v. Epps (2001) 25 Cal.4th 19, 29 [“the
Watson test for harmless error applies” to the denial of a right that “is purely
a creature of state statutory law”].)
Defendant argues a different result was reasonably probable here
because at the time of her plea she did not admit she killed White. Moreover,
she argues, while she stipulated that the preliminary hearing transcript
provided a factual basis for the plea, that transcript did not rule out the
possibility that the prosecution would pursue a natural and probable
consequences doctrine theory at trial. Defendant argues White, an adult
male, and defendant’s children were with her in White’s house at or about the
time of the homicide, and there is no evidence that she would have been able
to conceal White’s body alone. “Under these circumstances,” defendant
contends, “the evidence did not show [defendant] committed the homicide on
22
her own and/or did not show beyond a reasonable doubt that her culpability
for the murder was not based on her aiding and abetting some act committed
by the male in the house, the natural and probable consequences of which
were murder.”
We are not persuaded. First, apart from her admissions in the parole
risk assessment report and parole hearing transcript, the prosecution relied
on the preliminary hearing transcript, the trial court’s findings at the
preliminary hearing, the amended complaint, and defendant’s plea, which
had as its factual basis the preliminary hearing transcript and discovery.
Taken together, the documents provide strong circumstantial evidence that
defendant acted alone.
At the preliminary hearing, multiple witnesses testified about the
circumstances surrounding White’s disappearance and defendant’s suspicious
behavior. At the time of his death, White lived with a housemate, Jaime R.5
Jaime testified that she saw White at the house on the evening of
February 11, 2004, and he appeared in normal health. Before Jaime left the
house the following morning, she saw the victim asleep and alive in his
bedroom. She locked the front door and left. She never saw or talked to
White after that.
When Jaime returned to the house at 8:00 p.m. on February 12, she
saw a tan station wagon in the driveway and White’s dog tied to the front
porch railing, which was “odd.” Jaime also noticed neither of the two locks on
5 According to Jaime, she was living with White and working with him
to help him finish a book he was writing in lieu of paying rent, though she did
pay a portion of the utilities. She had an agreement with White as of
February 2004, to stay in his house until a month after his book was ready
for publication, possibly in June, at which point her lease would be
renegotiated.
23
the front door were locked, which was very unusual. Inside the house, all the
lights were off, the floors had been swept, furniture was moved, the dining
table was gone, and defendant was in the house with two children and an
adult male. Defendant told Jaime that White left with a lady friend and said
he would call Jaime later on that night.
Jaime R. testified defendant moved some of White’s belongings out of
the house. Defendant moved into White’s bedroom, and her children stayed
on the couch for the “first few nights,” then moved into a third bedroom. She
told Jaime that she had an agreement with White to rent the top portion of
his house and White would stay in the bottom bedroom.
Defendant also told Jaime not to go in the basement because defendant
had a “crazed Rottweiler” down there that they were going to have to put to
sleep. When Jaime checked the interior basement door that night, it was
locked. Jaime testified she had never seen a key to that door, nor had she
ever seen it locked before February 12. She checked it two or three times
after that, always finding it locked. Defendant kept telling Jaime she would
take care of the dog downstairs but “kept on giving excuses.” Defendant
never asked Jaime for a key to the basement or told her she needed one.
Jaime never heard any barking or scratching coming from the basement.
About four or five days later, Jaime tried to look inside the basement
from the window in the exterior basement door. A moment earlier, Jaime
saw defendant standing at the bay window in the front of the house. As
Jaime was looking into the basement, she “felt a presence” and when she
turned, saw defendant standing at the side of the house, facing Jaime, about
10 feet away.
The interior basement door remained locked for five or six days, after
which defendant told Jaime she could enter the basement to do her laundry.
24
When Jaime went in the basement, the dryer was running, and the exterior
door was closed. The key to the exterior door, which normally hung on a nail
or hook inside next to the door and had “always been there,” was missing.
When Jaime asked defendant about the key, defendant said she had no
knowledge of a key to that door.
On February 19, Officer Todd Martin went to White’s house to take a
missing person’s report from defendant. Defendant told Martin that she and
White were roommates and she had last seen him on February 12, when he
left with his girlfriend and his dog after just having finished writing a book
he had been working on for 50 years.
When Officer Kevin Wright came to the White residence on
February 25 to follow up on the missing person’s investigation, defendant led
him through the house. He was not able, however, to access the basement.
Officer Wright asked if he could look inside the basement, but defendant told
him it was locked and she did not have the key. When he asked her if they
could enter the basement from inside the house, she said there was no way to
enter the basement from inside and that Jaime R. had the key to the locked
basement door. During this visit, Officer Wright also asked defendant about
a brown leather couch belonging to White that another witness said was
“ratty” and covered in dog hair but had “a lot of sentimental value” to White.
Defendant said she “didn’t get rid of the couch,” told Officer Wright the couch
was “right there,” and pointed him to a brown cloth couch in “fairly good
condition.”
On March 4, Officer Wright spoke with defendant by phone. He asked
her for a copy of the lease she told him she had signed with White. When she
brought him the lease, she told him she found the key to the basement in the
house, but she also told him that Jaime R. had given her the key. When
25
Wright spoke with defendant again on March 9, she said she had lied to him
about White’s brown leather couch and admitted she “got rid” of it. She also
told Wright she had forged the lease she had given him. She also told him
that it is possible to access the basement through the interior door,
contradicting what she had told him during his visit on February 25.6
At some point, defendant told Officer Wright that she brought a Chow
and a Rottweiler with her to White’s house, but that the Rottweiler had died.
She told him she was afraid the Rottweiler was going to bite her child, so she
kept the dog in the basement. She also told him she put the dog in a
dumpster in Alameda after it died.
On April 14, 2004, police executed a search warrant on White’s house
and discovered his body entombed in his basement. The body was found in a
cardboard box that had been wrapped in plastic and placed under a utility
table. Sheets of particle board were placed around the table, held in place
with two-by-four inch boards and screws.
That night, Sergeants Michael Foster and Brock interviewed
defendant7 at the Oakland Police Department. Sergeant Foster also spoke
with defendant on a couple of occasions after April 14th, and defendant
offered three different versions of how White disappeared.
Initially, defendant told officers that White had left with his girlfriend,
“Luna.” She told Wright she had found some of White’s credit cards and had
been paying his bills. Defendant later changed the story and said when she
arrived at White’s house, she had a key to the house and used it to let herself
Officer Wright testified to a number of other contradictory statements
6
made by defendant during his investigation.
7Defendant waived her rights under Miranda v. Arizona (1966)
384 U.S. 436 (Miranda).
26
in. A “woman named Michaela, a woman named Jamie,” and a neighbor,
Rob, were there. Michaela told defendant that White had hurt himself and
was recuperating.
Just before 4:00 a.m. on April 15, Sergeant Foster interviewed
defendant again. In the meantime, he had spoken with Michaela S. and
Jaime R. During this interview, defendant told Foster about an orgy between
White, Michaela, and Jaime, during which White fell down a flight of stairs
after Michaela threw something to him. Defendant drew on a diagram for
Sergeant Foster and marked locations in the basement of White’s house.
Defendant placed a “B” on the diagram “to indicate where the body was” and
“1, 2, 3, 4P” to represent a particle board. She admitted she had screwed the
particle board into the table in the basement behind which White’s body was
found.
After Foster further interviewed Michaela and Jaime, both of whom
denied participating in an orgy, Foster again interviewed defendant around
8:10 a.m. on April 15.8 Defendant said that after she arrived at his house on
February 12, she got into an argument with White over deposit money she
had given him to rent part of his house. He would not return the money and
called her names. He went upstairs to his room, and she followed,
demanding her money back. She pulled out a dresser drawer and threw it in
the bedroom. White reached for a handgun he had in the room. They got into
a struggle near the top of the stairwell. Jaime R. appeared and tried to help.
Then “she”9 and White fell down the stairs to the basement.
Although defendant argues on appeal that others were “in White’s
house at or about the time of the homicide,” the only evidence she cites is
8 Defendant again waived her Miranda rights.
9 It is unclear whether defendant meant herself or Jaime R.
27
testimony from Jaime R. that when she came home at about 8:00 p.m. on
February 12, two children, an adult male, and defendant were in the house.10
Defendant also argues there was no evidence she would have been able to
hide the body by herself, but defendant admitted to Sergeant Foster that she
screwed the particle board into the table behind which White’s body was
found, and there is no evidence in the record that anyone helped her move or
hide the body. Moreover, as the trial court recognized in denying the
petition, there was no indication in the evidence before the court that anyone
else was involved in the murder,11 nor did the prosecution suggest defendant
would be tried on a theory she acted as an aider or abettor.
Taking all of the circumstantial evidence presented at the preliminary
hearing, including the extensive evidence regarding defendant’s efforts to
prevent police and the victim’s roommate from entering the basement where
White’s body was found, her inconsistent and changing stories about his
disappearance, her knowledge of the body location and admission she
screwed in the particle board that concealed White’s body, and her fraudulent
use of the victim’s credit cards after his death, it is not reasonably probable
the trial court would have reached a different result in the absence of
defendant’s admissions in the parole risk assessment and parole hearing
transcript.
10 Sergeant Foster testified that Willie T., the adult male who stayed
with defendant at White’s house beginning on February 12, told Foster that
defendant arrived at White’s house first and he (Willie) arrived sometime
later in the day on February 12.
11Certainly, defendant did not introduce any new evidence, as was her
statutory right under section 1170.95, subdivision (d)(3), as to anyone else’s
involvement.
28
Second, the natural and probable consequences doctrine presupposes
that defendant aided and abetted another principal in the commission of a
target crime. (See People v. Prettyman (1996) 14 Cal.4th 248, 261–262,
superseded in part by Sen. Bill 1437.) Defendant does not identify a target
offense on which a natural and probable consequences theory could have been
based. Relief is available under section 1170.95 only when the conditions
enumerated in the statute apply, including that the “petitioner could not be
convicted of first or second degree murder because of changes to Section 188
or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(3), italics
added.) Defendant does not explain how the prosecution could have relied on
a natural and probable consequences theory without any evidence showing
defendant aided and abetted the perpetration of a target offense.
In sum, because the record does not support a conclusion that the case
involved a theory of felony murder or the natural and probable consequences
doctrine, any error in admitting evidence that defendant was the actual killer
is harmless.
III. DISPOSITION
The order denying defendant’s petition for resentencing is affirmed.
29
MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A161450
People v. Myles
30
Trial Court: Superior Court of Alameda County
Trial Judge: Morris Jacobson, Judge
Counsel:
Athena Shudde, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Jeffrey M. Laurence, Assistant Attorney General, Rene A. Chacon
and Juliet B. Haley, Deputy Attorneys General for Plaintiff and Respondent.
31