People v. Anderson

Filed 4/28/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

A162633

v.

RONALD RAY ANDERSON, (Alameda County

Super. Ct. No. 69119)

Defendant and

Appellant.

In 1979, defendant Ronald Ray Anderson was tried for the

murders and robberies of Phillip and Kathryn Ranzo, as well as

for burglarizing their home. In the same trial, Anderson was also

tried for the separate robbery of Leonard Luna. With respect to

the Ranzos, the jury convicted Anderson of two counts of first

degree murder, two counts of robbery, and one count of burglary,

and his convictions were affirmed on appeal. In this appeal from

the denial of Anderson’s Penal Code1 section 1170.95 petition,

Anderson argues that the trial court prejudicially erred by

admitting in his section 1170.95 evidentiary hearing testimony

from Anderson’s parole suitability hearings, when that testimony

should have been excluded under the reasoning of People v.

All further statutory references are to the Penal Code

1

unless otherwise indicated.

1

Coleman (1975) 13 Cal.3d 867 (Coleman). We affirm the trial

court’s order denying Anderson’s section 1170.95 petition because

we conclude that Anderson has not established that the trial

court erred in considering testimony from his parole suitability

hearings.2

BACKGROUND

We set forth below the factual recitation from the 1982

unpublished appellate opinion affirming Anderson’s convictions.

Leonard Luna was taking care of the home of

Bernard Marks, his employer, who was out of town

on Sunday, June 24, 1979. The home was located at

3307 West Stuhr Road, Newman.

Between 11:30 p.m. and midnight on June 24,

two young men came to the door and asked Luna if

he could sell them some gasoline because their car

was empty. The two left after Luna provided them

with some gasoline, but returned about 15 minutes

later and asked if they could use the telephone. As

they appeared to be leaving, one of the men turned

round with a pistol in his hand and told Luna to hit

the floor and close his eyes. Luna complied and then

heard a car drive up in front of the house and some

more people enter it. He did not know exactly how

many.

2Anderson has also filed a petition for a writ of habeas

corpus, which we have considered together with this appeal. We

dispose of the writ by separate order.

2

After being hit on his head, Luna was taken

into the den where he was placed on a couch and

“hog-tied.” His hands were tied behind his back and

also tied to his feet. On two occasions a person he

later identified as Marty Jackson, also known as

Marty Spears, said he wanted to “blast” Luna

because Luna had seen Jackson’s face. Luna was

later able to identify Marty Jackson (Spears) and

Daniel Geysler as the two who had first come to the

door. A large safe on wheels, several guns, a

switchblade knife and two watches were missing

from the Marks home and it showed signs of having

been ransacked.

On June 26, 1979, the bodies of Phillip and

Kathryn Ranzo were found at their residence at 1404

Fernview Drive in Modesto. They had failed to

appear at their respective places of employment and

James Blomquist, Phillip’s boss at the pharmacy

where he worked, and Carolyn Shaffer, an employee

of the beauty salon owned by Kathryn, went to the

Ranzo residence. Carolyn Shaffer had called the

police because of her concern before going to the

Ranzo residence. Blomquist, having found the front

door locked, looked in the garage and found Phillip’s

body lying on the floor. The police arrived about five

minutes later.

3

Officer Hamilton, who had responded to the

prior call for a security check of the Ranzo residence,

was shown the body of Phillip Ranzo [by] Bloomquist

and they then sought to gain entrance to the house.

The officer finally had to force a third level door. In

the upstairs bathroom the nude body of Kathryn

Ranzo was found lying on the floor.

The bodies of both victims had been tied with

hands behind the back and also tied to the feet. The

cause of death for each was bleeding from multiple

stab wounds and the severing of arteries. Phillip had

also been hit over the head with a blunt instrument

at least six times, causing severe fragmentation of his

skull. His wife had also been struck on the head

several times with the back of an axe found in the

hall next to the bathroom.

The rope used to tie the Ranzos appeared to be

identical to that used on Luna in the Newman

robbery. The knife wounds sustained by Kathryn

Ranzo were of a different kind than those sustained

by her husband. Dr. Ernoehazy, Stanislaus County

pathologist, testified that her wounds could have

been caused by the switchblade knife taken in the

Newman robbery.

Officer Hamilton arrived at the Ranzo

residence at about 2:15 p.m. of June 26, 1979. Dr.

Ernoehazy was summoned and arrived there about 4

4

p.m. It was his opinion that the time of the death of

each of the victims was about 16 hours prior to his

first examination of the bodies. He fixed the time of

their deaths at between 11 p.m. June 25 and 1 a.m.

June 26.

The office area and the master bedroom of the

Ranzo residence had been ransacked, with drawers

pulled out and money, checks, papers and jewelry on

the floor. Some money, a Browning automatic

shotgun and two pendants, one with diamonds, were

found missing by Sam Ranzo, father of the victim

Phillip.

On the evening of June 25, 1979, Kathryn and

Phillip Ranzo had had dinner at their home with

their 10-year-old son, Mark, Phillip’s parents, Sam

and Marie Ranzo, Mark’s friend, Michele Hermann

and two of Mark’s cousins, Mike and Michele

Narzano. Later in the evening the four children and

the grandparents went to the grandparents’ home,

about one block away and around the corner from the

victims’ home. Mark spent the night with his

grandparents.

The children played outside the grandparents’

home after dinner. They recalled, in substance, that

they had seen an old blue vehicle, with a pickup body,

drive by very slowly several times. There were four

young male passengers, three in front and one in the

5

pickup portion in the back. The back also contained

some boxes and a trash can. They first saw it around

9:45 p.m. They told grandmother Marie about it and

she observed it stopping and backing up at the end of

their lot. It was last seen by them about 11:15 p.m.

and was then going quite fast.

One neighbor had seen the older model blue El

Camino Chevrolet cruising at low speed in front of

his house at 1416 Fernview Drive on the afternoon of

June 25 between 3 and 5 p.m. His attention was

attracted to it because it sounded like “an inboard

motorboat” and he thought it had a blown muffler.

There were two young men in it, one of whom had

hair of the same color as [Anderson]. The occupants

were “kind of looking around at the houses.”

Another neighbor who lived at 1413 Fernview

Drive, across the street from the Ranzo residence,

was walking his dog along that street on the evening

of June 25. He saw Phillip Ranzo working on one of

his autos in the garage at about 10:30 to 11 p.m. He

later went to bed and was awakened around

midnight by the sound of screeching tires. He got up

and looked out the window and saw what looked like

a 1959 bluish green El Camino pickup driving at a

faster speed than normal along the street in front of

his house. It had a noisy muffler. There were two

people in the vehicle. He identified a slide picture,

6

16-G in evidence, as that of the vehicle which he had

seen that night.

In addition to the facts set forth above from the appellate

opinion, the record before us in this appeal contains evidence

from trial establishing that Anderson lived with Jackson, and

Jackson, Anderson, and two others, D.L. and J.M.—all

teenagers—went to the Ranzos’ home to commit burglary and

robbery. They targeted the Ranzos’ home because they believed

large amounts of cash were kept therein, and Anderson admitted

to Jackson’s brother after the robbery that they had committed

the robbery. Anderson drove with Jackson around the Ranzos’

neighborhood in Jackson’s El Camino multiple times in the hours

before the robbery. Anderson knew at least one of his

confederates was armed with a pistol when he went into the

Ranzos’ house because Anderson told detectives that he saw a

pistol in J.M.’s waistband, and he also said that Jackson grabbed

rope from the vehicle and carried it away from the car.

According to trial transcripts, Anderson told police that,

before leaving Jackson’s house to execute the robbery of the

Ranzos, he “overheard” Jackson and the others discussing the

possibility of killing the Ranzos, although Anderson claimed he

was not involved in the discussion. A police detective testified at

trial that Anderson said once they arrived at, and were about to

enter the Ranzos’ house, Jackson for the second time talked to

the others about killing the Ranzos. Anderson told police that he

“didn’t enter into the conversation.” The jury heard evidence that

Anderson’s then-girlfriend told investigators that Anderson said

7

his role was to wait outside in the El Camino and, if necessary,

signal his confederates by driving around and honking if anyone

came. Anderson also told investigators he “considered himself as

the watchman.”

When Anderson’s three confederates went into the Ranzos’

home, Anderson remained with the truck. According to

Anderson, D.L. and J.M. returned to the truck about 20 minutes

later with a manila envelope, leaving Jackson inside the house.

D.L. and J.M. came running back and were excited. Anderson,

who had the keys to the truck, took D.L. and J.M. to a nearby

apartment building and then returned to the same parking spot.

After Anderson picked Jackson up, they went in search for J.M.

and D.L. They found J.M.’s brother, D.M., at Lisa Swenson’s

house in the early morning hours of June 26, 1979. Swenson

testified that Jackson admitted killing two people because they

had seen him. D.M. testified that Jackson said that he had just

killed two people, and Anderson asked David where his brother

(J.M.) was and threatened to kill D.M. if he did not tell Anderson.

Jackson’s father testified that, at about 3:30 a.m. on June

26, 1979, Anderson and Jackson were back at their home and had

an envelope full of cash out on the kitchen table that Jackson had

brought in from outside the home. After counting the money,

Jackson and Anderson each took their share. Jackson’s mother

testified that, while generally discussing the Ranzos, Anderson

told her that “it was a bad scene. . . . It would have made you

sick.”

8

Anderson was charged by information with two counts of

murder (§ 187), three counts of robbery (§ 211), and one count of

first degree burglary (§§ 459, 460, subd. (a)), with a gun

enhancement for each count.3 The jury found Anderson guilty as

charged, and he was sentenced to 25 years to life.

In 2019, Anderson filed a pro se petition seeking relief

under section 1170.95 after the Legislature enacted Senate Bill

No. 1437. The court appointed counsel for Anderson, ordered

preliminary briefing, and then issued an order to show cause.

Prior to the hearing on the petition, Anderson sought to exclude

from the court’s consideration his testimony from prior parole

suitability hearings, arguing that such testimony should be

excluded under Coleman and similar authorities. The court

denied the motion, reviewed the materials submitted by the

parties relating to the petition, and held a hearing. The court

denied Anderson’s petition, finding the prosecution had

established beyond a reasonable doubt that Anderson could be

convicted of felony murder as a major participant in an

enumerated felony who acted with reckless indifference to human

life and that he could also be found guilty under a direct aiding

and abetting theory.

Anderson timely appealed the trial court’s denial of his

section 1170.95 petition.

3Counts 1 through 5 (two counts of murder, two counts of

robbery, and one count of burglary) pertain to the Ranzos and

count 6 (robbery) pertains to Luna.

9

DISCUSSION

Effective January 1, 2019, Senate Bill No. 1437 (2017–2018

Reg. Sess.) changed the law of homicide by amending the felony

murder rule and the natural and probable consequences doctrine

as it relates to murder. (People v. Gentile (2020) 10 Cal.5th 830,

842–843; Stats. 2018, ch. 1015 § 1.)4 Senate Bill No. 1437 also

enacted section 1170.95 to provide a procedure for those convicted

of felony murder or murder under the natural and probable

consequences doctrine prior to Senate Bill No. 1437’s enactment

to seek relief. (Gentile, at p. 843; Stats. 2018, ch. 1015, § 3.)

Under the version of section 1170.95 effective at Anderson’s

hearing,5 a person seeking relief had to file a petition in superior

4 Senate Bill No. 1437 added section 189, subdivision (e) to

the felony murder rule and added subdivision (a)(3) to section

188. (People v. Gentile, supra, 10 Cal.5th at pp. 842–843; Stats.

2018, ch. 1015 §§ 2–3.) The former provision provided, “A

participant in the perpetration or attempted perpetration of

[qualifying felonies] in which a death occurs is liable for murder

only if one of the following is proven: [¶] (1) The person was the

actual killer. [¶] (2) The person was not the actual killer, but,

with the intent to kill, aided, abetted, counseled, commanded,

induced, solicited, requested, or assisted the actual killer in the

commission of murder in the first degree. [¶] (3) The person was a

major participant in the underlying felony and acted with

reckless indifference to human life . . . .” (§ 189, subd. (e)(3).)

The latter provision states, “Except [for felony murder liability]

as stated in subdivision (e) of 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).)

5 Effective January 1, 2022, the Legislature amended

section 1170.95 in several ways, none of which is relevant to our

analysis here. (Stats. 2021, ch. 551, § 2.) We reference only the

version of the statute applicable at Anderson’s hearing.

10

court declaring, among other things, that he or she “could not be

convicted of first or second degree murder because of changes to

Section 188 or 189” (former § 1170.95, subd. (a)(3)); the trial court

then had to determine if the petitioner made a prima facie

showing that he or she fell within the provisions of the statute,

and, if so, it had to issue an order to show cause and hold a

hearing to determine whether to vacate the murder conviction

and to resentence the petitioner on any remaining counts (id.,

subds. (c), (d)(1)). At the evidentiary hearing under section

1170.95, subdivision (d)(1), the prosecution had to “prove, beyond

a reasonable doubt, that the petitioner is ineligible for

resentencing.” (Id., subd. (d)(3).)

In his appeal from the trial court’s order denying his

section 1170.95 petition, Anderson contends the court

prejudicially erred in admitting his testimony from prior parole

suitability hearings because he should have been afforded use

immunity for such testimony.6 Defendant relies on Coleman and

similar decisions to argue that statements made in a parole

suitability hearing should be deemed inadmissible in a section

1170.95 evidentiary hearing. In response, the Attorney General

points out that People v. Myles (2021) 69 Cal.App.5th 688 (Myles)

recently rejected a similar argument. As explained below,

6 Anderson does not argue on appeal that the evidence

admitted at his section 1170.95 evidentiary hearing was

insufficient to support the trial court’s finding that he was a

major participant in the designated felonies who acted with

reckless disregard for human life.

11

Anderson does not establish that he is entitled to use immunity

or that Myles was incorrectly decided.7

In Myles, as Anderson does here, the defendant relied on

Coleman and related authorities to argue that, in her section

1170.95 evidentiary hearing, she was entitled to use immunity

for her statements and testimony in connection with her parole

suitability proceedings. (Myles, supra, 69 Cal.App.5th at p. 704.)

Our colleagues in Division One disagreed.

First, our colleagues reviewed Coleman. “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. [Citation.]

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. [Citation.] To resolve the tension between competing

rights, the 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

7Anderson testified at a number of parole suitability

hearings throughout the years. Given our denial of Anderson’s

claim that this testimony was improperly admitted, we need not

describe this testimony herein.

12

privilege against self-incrimination at his subsequent trial.’ ”

(Myles, supra, 69 Cal.App.5th at p. 705.)

Myles next found the defendant’s reliance on Coleman and

its progeny unavailing: “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.” ’ (People v. Tom (2014)

59 Cal.4th 1210, 1223, 1222 [ ].) 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.” ’ ” ([People v.] Williams

[(2020)] 57 Cal.App.5th [652,] 661, quoting People v. Wilson

[(2020)] 53 Cal.App.5th [42,] 53; see, e.g., People v. Anthony

[(2019)] 32 Cal.App.5th [1102,] 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.”

(Myles, supra, 69 Cal.App.5th at pp. 705–706.)

Finally, Myles rejected the defendant’s argument that use

immunity should have been recognized for the additional reason

that the Fifth Amendment protects individuals from government

coercion, but “defendant was not compelled to file a section

13

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’].) . . . 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.” (Myles, supra,

69 Cal.App.5th at pp. 705–706.)

Anderson argues that Myles is incorrect because Coleman

was not decided on constitutional grounds, therefore “whether

the Fifth Amendment is applicable to a section 1170.95

proceeding is not determinative as to whether Coleman should

apply.” In so arguing, Anderson ignores the fact that a central

justification for the creation of Coleman’s exclusionary rule was

the need to protect a defendant’s constitutional privilege against

self-incrimination.

In Coleman, the district attorney initiated probation

revocation proceedings on grounds that were also the basis for

14

independent criminal charges, and the court revoked the

defendant’s probation after he declined to testify at the

revocation hearing. (Coleman, supra, 13 Cal.3d at p. 871.) The

defendant argued that holding the probation revocation hearing

prior to his criminal trial denied him procedural due process

because he was forced to forego the opportunity to testify at his

revocation hearing to avoid incriminating himself at trial. (Ibid.)

Observing that federal law did not clearly require a grant of

immunity for the probation revocation testimony, our Supreme

Court declined to decide the constitutional question. (Id. at

pp. 878, 888–889.) Instead, it fashioned a “judicial rule of

evidence” providing that, upon objection, the defendant’s

probation revocation hearing testimony and evidence derived

therefrom is inadmissible against the probationer during

subsequent proceedings on the related criminal charges, save for

impeachment or rebuttal. (Id. at p. 889.) The rationale for this

rule was “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” (Myles, supra, 69 Cal.App.5th at p. 705), and the court

made clear that its rule afforded protection “ ‘coextensive with

the scope of the privilege against self-incrimination.’ ” (Coleman,

at p. 892, citing Kastigar v. United States (1972) 406 U.S. 441,

453, 461.) Thus, the existence of the defendant’s constitutional

privilege against self-incrimination in the subsequent criminal

trial was integral to the justification for the exclusionary rule

announced in Coleman.

15

Indeed, all the use immunities in the authorities upon

which Anderson relies prevented evidence elicited in various

proceedings from being introduced against a defendant as

evidence of guilt in a subsequent criminal or juvenile delinquency

proceeding. (See, e.g., Bryan v. Superior Court (1972) 7 Cal.3d

575, 586–589 [statements made by a minor to probation officer

and to court in a fitness hearing could not be introduced as

substantive evidence against minor in criminal trial]; In re

Wayne H. (1979) 24 Cal.3d 595, 602 [minor’s statements to

probation officer inadmissible for any purpose to prove criminal

guilt in juvenile or adult proceeding]; In re Jessica B. (1989)

207 Cal.App.3d 504, 521 [statements made by parent in therapy

ordered by dependency court inadmissible in parent’s criminal

trial]; Sheila O. v. Superior Court (1981) 125 Cal.App.3d 812,

816–817 [testimony given by juvenile at fitness hearing

inadmissible in later criminal proceedings]; People v. Dennis

(1986) 177 Cal.App.3d 863, 876 [defendant’s disclosures in

support of a motion for a new trial based upon ineffective

assistance of counsel inadmissible in subsequent criminal trial];

People v. Knight (2015) 239 Cal.App.4th 1, 5–8 [statements made

in support of Marsden8 motion inadmissible in criminal trial].)

Our Supreme Court has described Coleman and its progeny as a

“number of decisions by this court granting use immunity in

other contexts in which it would be unfair to require the

defendant to choose between maintaining a privilege and

asserting other important rights.” (People v. Ledesma (2006)

8 People v. Marsden (1970) 2 Cal.3d 118.

16

39 Cal.4th 641, 692, 694–695, italics added [holding disclosure of

attorney-client privileged information in a habeas proceeding

premised on ineffective assistance pursuant to Evidence Code

section 958 did not waive the privilege for purposes of defendant’s

criminal retrial].)

Ten years after Coleman, in two separate decisions, our

Supreme Court held that the California Constitution’s privilege

against self-incrimination mandated the grant of Coleman’s use

immunity and a similar use immunity for testimony that a minor

gives at a fitness hearing and statements the minor makes to her

probation officer in connection with that hearing. (Ramona R. v.

Superior Court (1985) 37 Cal.3d 802, 808, 810 (Ramona R.);

People v. Weaver (1985) 39 Cal.3d 654, 659–660 [addressing

Coleman’s use immunity].) In Ramona R., the first of the two

decisions, the issue our Supreme Court addressed was whether

use immunity for testimony that a minor gave at a fitness

hearing or statements she made to her probation officer remained

viable given the passage of Proposition 8, which added section 28,

subdivision (d), to article I to the California Constitution.9 In

9Proposition 8 enacted what has been deemed the “Right-

to-Truth-in-Evidence” provision in 1982, and it has since been

redesignated as article I, section (f)(2) of the California

Constitution. (People v. Guzman (2019) 8 Cal.5th 673, 677, fn. 3.)

This provision states, “Except as provided by statute hereafter

enacted by a two-thirds vote of the membership in each house of

the Legislature, relevant evidence shall not be excluded in any

criminal proceeding, including pretrial and post conviction

motions and hearings, or in any trial or hearing of a juvenile for a

criminal offense, whether heard in juvenile or adult court.

Nothing in this section shall affect any existing statutory rule of

17

Ramona R., our Supreme Court examined the genesis of

Coleman’s use immunity and explained that it was necessary to

protect the privilege against self-incrimination. (Ramona R., at

p. 809 [“Coleman examined in depth the need for use immunities

in probation hearings to protect the privilege against self-

incrimination.”].) The court acknowledged that it had declined to

rest Coleman’s holding on constitutional grounds, “but only

because we deemed such a determination to be unnecessary, as

‘our judicially declared exclusionary rule provides protection

“coextensive with the scope of the privilege against self-

incrimination.” ’ ” (Ramona R., at p. 809, italics added.) The

court then held that the use immunity at issue therein was

essential to our state constitutional privilege against self-

incrimination and was reflected in Evidence Code section 940.10

(Ramona R., pp. 808–809; People v. Weaver, at pp. 659–660

[Coleman’s use immunity survived enactment of Right-to-Truth-

in-Evidence provision for same reasons stated in Ramona R.]; see

People v. Carter (1993) 19 Cal.App.4th 1236, 1248 [“Though

Coleman expressed its holding in terms of a judicially devised

exclusionary rule, later cases have treated Coleman as creating a

limited species of use immunity grounded in California’s

constitutional guarantee against self-incrimination”].) Where the

evidence relating to privilege . . . .” (Cal. Const., art. I, § 28,

subd. (f)(2).)

10This statute provides, “To the extent that such privilege

exists under the Constitution of the United States or the State of

California, a person has a privilege to refuse to disclose any

matter that may tend to incriminate him.” (Evid. Code, § 940.)

18

privilege against self-incrimination is not implicated, the

rationale for immunities at issue in Coleman and Ramona R.

disappears.

Accordingly, the authorities upon which Anderson relies

demonstrate that his argument requires him to establish that a

constitutional privilege against self-incrimination applied in his

section 1170.95 evidentiary hearing. Yet Anderson makes only

the conclusory assertion that he “had a constitutional privilege

against self-incrimination”, and he fails to provide any reasoned

supporting argument. Addressing Myles, he does not argue that

the decision was incorrect because a constitutional privilege

against self-incrimination in fact applied in his section 1170.95

evidentiary hearing, nor does he argue that the California

Constitution or United States Constitution required the exclusion

of his parole suitability testimony. Indeed, the United States

Supreme Court has held that the Fifth Amendment applies

through original sentencing, but has stated that incrimination is

complete in cases in which the sentence has been fixed and the

judgment of conviction has become final. (Mitchell v. United

States (1999) 526 U.S. 314, 326 [“If no adverse consequences can

be visited upon the convicted person by reason of further

testimony, then there is no further incrimination to be feared.”];

see In re Tapia (2012) 207 Cal.App.4th 1104, 1111, fn. 3 [noting

in dicta that parolee’s privilege against self-incrimination ended

when his conviction became final].)

For the reasons set forth above, we conclude, as did the

court in Myles, that “defendant has not demonstrated that the

19

same principles and rationale underlying the judicially created

exclusionary rule formulated in Coleman and applicable in

criminal trials apply in [his] section 1170.95 resentencing

hearing.” (Myles, supra, 69 Cal.App.5th at p. 706.) The trial

court thus did not err in considering Anderson’s testimony from

his parole suitability hearings.

DISPOSITION

The order denying Anderson’s section 1170.95 petition is

affirmed.

BROWN, J.

WE CONCUR:

POLLAK, P. J.

STREETER, J.

People v. Anderson (A162633)

20

Trial Court: Alameda County Superior Court

Trial Judge: Hon. Morris D. Jacobson

Counsel: Matthew Alger, under appointment by the Court of Appeal,

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance Winters and Jeffrey

M. Laurence, Assistant Attorneys General, René A. Chacón

and Juliet B. Haley, Deputy Attorneys General for Plaintiff

and Respondent.