The opinion
Filed 6/5/24 P. v. Garza CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085630
Plaintiff and Respondent,
(Super. Ct. No. CF92464473)
v.
RICHARD ANTHONY GARZA, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
Elizabeth M. Campbell, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, and Galen N. Farris,
Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Levy, J. and Meehan, J.
Defendant Richard Anthony Garza pled no contest to second degree murder and
admitted personally using a weapon in the commission of the offense. He was sentenced
to an aggregate term of 15 years to life plus one year in state prison.1 He filed a petition
for resentencing, pursuant to former Penal Code section 1170.952 (§ 1172.6), based upon
the changes to the felony-murder rule and the natural and probable consequences doctrine
of aider and abettor liability effectuated by Senate Bill No. 1437 (2017–2018 Reg. Sess.)
(Senate Bill 1437). The trial court dismissed his petition, concluding that Senate
Bill 1437 was unconstitutional. We reversed the court’s order dismissing the petition and
remanded.
On remand, the trial court considered defendant’s statements at a parole suitability
hearing in determining that defendant was ineligible for relief. On appeal, defendant
contends the trial court’s consideration of his statement from the parole suitability hearing
was error. He further contends that if the error was forfeited, his counsel was ineffective.
The People disagree on both accounts. We affirm.
PROCEDURAL SUMMARY3
On July 8, 1992, the Fresno County District Attorney filed an information
charging defendant, Gilbert Gallegos, and Jessie Garcia with the murder of Eric Delgado
(§ 187; count 1). Defendant was also charged with three counts of assault with a deadly
1 Defendant was also convicted of robbery in a separate case. He was sentenced to
a determinate term of two years on the robbery on the same date that the sentence was
imposed in this case.
2 All further statutory references are to the Penal Code. Former section 1170.95 was
renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We refer
to the current section 1172.6 in this opinion.
3 On September 25, 2023, the People filed a request for judicial notice of portions of
the record on defendant’s prior appeal in this case. (People v. Garza (June 22, 2021,
F080195) [nonpub. opn.].) Specifically, they sought judicial notice of defendant’s
resentencing petition, the prosecutor’s and defendant’s responsive filings, and the minute
orders and written rulings by the trial court. On October 4, 2023, we granted the People’s
request. We rely, in part, on those documents in preparing this procedural summary.
2.
weapon (§ 245, subd. (a)(1); counts 2, 3 & 4). The information further alleged: as to
count 1, defendant personally used a deadly weapon (§ 12022, subd. (b)), and as to all
counts, defendant committed the offenses for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)).
On December 8, 1992, defendant pled guilty to second degree murder on count 1.
Defendant also admitted the personal use of a deadly weapon allegation. In exchange,
counts 2, 3, and 4, and the gang allegations were dismissed on the prosecution’s motion.
On January 12, 1993, the trial court sentenced defendant to 15 years to life on
count 1, plus a consecutive one-year weapon enhancement (§ 12022, subd. (b)).4
On January 15, 2019, defendant filed a petition for resentencing pursuant to
section 1172.6. On October 16, 2019, the trial court granted the prosecution’s motion to
dismiss defendant’s petition.
On June 22, 2021, we reversed the trial court’s order dismissing defendant’s
petition and remanded for further proceedings.
After extensive briefing by the parties, on January 5, 2022, the trial court ordered
the prosecution to show cause why defendant’s petition should not be granted. (People v.
Garza, supra, F080195.)
The prosecution submitted evidence and the parties submitted briefing prior to an
evidentiary hearing. The prosecution submitted, among other things, a transcript of
defendant’s 2014 parole suitability hearing at which defendant testified under oath.
Defendant objected to admission of the parole suitability hearing transcript on the basis
that the transcript “should come within use immunity under the California Constitution.”
4 The trial court also sentenced defendant to a concurrent term of imprisonment on
the same day in an unrelated offense.
3.
On January 17, 2023, following an evidentiary hearing, the trial court denied
defendant’s petition, relying on defendant’s statement in the parole hearing transcript and
other evidence.
On January 19, 2023, defendant filed a notice of appeal.
FACTUAL SUMMARY5
At the section 1172.6 hearing, the prosecutor presented the original information,
documents reflecting the change of plea, the sentencing hearing transcript, the death
certificate and autopsy report for Delgado, and portions of defendant’s 2014 parole
suitability hearing in which he testified under oath. Defendant testified on his own behalf
at the same hearing but presented no other evidence.
1. The 2014 Parole Suitability Hearing Testimony
On June 26, 2014, defendant testified under oath at his parole suitability hearing.
Defendant became a gang member at 17 or 18 years of age. On the day of the
offense in this case, defendant and between two and five other people were drinking
alcohol, using drugs, and driving around. Only two of the occupants of the vehicle
carried knives. Defendant was not carrying a knife. They saw a “big crowd of people” at
a convenience store and stopped the vehicle “to see what was going on.” A woman that
defendant knew to be Gallegos’s girlfriend called him over to a different vehicle.
Defendant could see that there were men in that vehicle and told Gallegos that his
girlfriend wanted to talk to him. Defendant and Gallegos walked over to the other
vehicle. Gallegos and his girlfriend then began arguing because his girlfriend was in a
vehicle with other men, and she was upset that Gallegos had arrived with another woman.
Six or seven occupants of the vehicle Gallegos’ girlfriend was in then exited the
vehicle and began arguing with defendant and Gallegos, “identified themselves as”
5 Because defendant raises only legal issues and because we do not reach the issue
of prejudice, the facts underlying the offenses are only minimally relevant and we
provide only a limited factual summary.
4.
members of a different gang, and surrounded them. Defendant called to two of the other
people he arrived with, and they came to assist. The confrontation began to deescalate
until one of defendant’s companions made a derogatory statement regarding the other
gang. The two groups then began to fight.
One of the men in the other group “came at [defendant] with a knife and
[defendant] … took it from him.” Defendant then used the knife “against him.” He
stabbed the person he took the knife from six or seven times, then he chased the person
and stabbed him additional times. Defendant estimated he stabbed the person “maybe
like 12 times.” At some point, while defendant was stabbing the person he took the knife
from, that person was on a gate between the convenience store and the business next to it.
The man climbed the gate, “fell over the side[,] and took off running.” When asked who
he used the knife against, defendant answered, “I ha[d] no idea who he was at the time.…
But apparently I stabbed a few people. That’s on record so I guess it was [A.B.],
[Delgado],” and A.V. The person he took the knife from was the first person he stabbed.
Defendant was asked if he knew how many people he stabbed that day. He answered,
“No, sir. I was intoxicated. I was real drunk.” He later clarified that on that day, prior to
the incident, he had used marijuana and PCP, and consumed alcohol.
Defendant testified in the same proceeding that he admitted that he stabbed
someone in the back. Based on the report he had seen, defendant understood that he had
stabbed Delgado. However, he denied having a personal recollection of who it was that
he had stabbed in the back. When asked why he stabbed Delgado, defendant answered,
“I was angry. I was with my gang associates and I was doing what they would do. I was
following their lead. And I take responsibility for doing it.”
Defendant further acknowledged that he had other options after he took the knife
away from his attacker. He had the option “[j]ust to leave [or] stop doing what [he] was
doing ….” In hindsight, he thought he did not take one of those other options because he
“was angry.” He “had a lot of [¶] … [¶] rage in [him].”
5.
2. The Autopsy Report
The autopsy report reflected that Delgado was stabbed a total of 16 times; 11 times
on the back of his torso and five times on the front of his torso.
3. Defendant’s Section 1172.6 Evidentiary Hearing Testimony
On May 2, 1992, defendant, three men (including codefendants Gallegos and
Garcia), and a woman, planned to go to the Fresno fairgrounds. Defendant was not a
gang member at the time.6 He had been drinking alcohol and using drugs for most of the
day. At approximately 11:00 p.m., the four others picked defendant up. On the way to
the fairgrounds, they stopped at a convenience store because they saw a “[b]unch of
youngsters [their] age.” He had no plans to pick a fight and had no knowledge of any of
his companions having such a plan. He did not know whether his companions had
weapons in their possession, but he did possess a folding pocket knife with a three-inch
blade.
Defendant and his companions approached a group of people because two of his
companions knew some of the women. As defendant’s group spoke to the women,
Gallegos’s girlfriend called to him from the passenger seat of another vehicle in the
convenience store parking lot. Defendant and Gallegos walked over to speak with her.
Gallegos’s girlfriend continued to sit in the passenger seat and argued with Gallegos.
Gallegos asked what she was doing in the vehicle with other men, attempted to open the
passenger door, and attempted to convince her to come with defendant’s group. The
driver of the vehicle exited to confront Gallegos about the way in which he was handling
the passenger door. Gallegos “got kind of aggressive with him” and said “[s]tay out of
my business.” The man responded, “No.… [M]y door is messed up.” Some of the other
6 He became a gang member and got a gang tattoo in prison. He testified that he
was a gang member at the 2014 parole suitability hearing because the police report said
he was a gang member and he “was trying to take responsibility.”
6.
men in the vehicle got out and surrounded defendant and Gallegos. Men from an
adjacent vehicle did the same.
Some of the men surrounding defendant and Gallegos “started talking [like they
wanted] to fight” but others “were trying to make peace.” The men decided not to fight
and the two groups began to shake hands. Defendant then heard a man toward the back
of the other group say “F that s[**]t,” and a fight broke out. Someone then grabbed
defendant from behind. Defendant told the man who grabbed him to let go. The man did
not, so defendant “panicked” and stabbed him one time on the left side of the abdomen.
The person then released defendant and defendant backed away. Defendant fled to the
check cashing business next door to the convenience store in the same strip of
commercial buildings.
As defendant stood at the check cashing business, someone came up behind him.
He turned and was “punched in the face” by a different man. Defendant chased the man
and, as the man jumped over a three- to four-foot fence, defendant stabbed him in the
back “three or four” times. Defendant then returned to the car that Gallegos’s girlfriend
was in when they arrived and saw that “everyone was gone.” One of defendant’s
companions retrieved him, they got in the vehicle they arrived in, and they left. As they
were driving away, defendant did not see anyone who appeared to be injured or appeared
to have fallen from an injury when he left.
Defendant did not stab anyone other than the person who grabbed him from
behind (whom he stabbed on the side of the abdomen) and the person who punched him
(whom he stabbed in the back). Defendant denied that he stabbed Delgado. Defendant
“did[ not] touch him … [and] was nowhere near him.” At the 2014 parole suitability
hearing, defendant testified that he stabbed Delgado. However, he did so because he was
“attempting to take responsibility … [a]nd the only way [he] could do [so was] by
admitting to something [he] didn’t do.” While the police and probation reports indicated
that he stabbed Delgado, he did not “know who it was until [he] read the police report.”
7.
At the 2014 parole suitability hearing, defendant said that he took a knife from
someone who attacked him “[b]ecause that[ was] what [he] said to the homicide
detectives … when they interviewed [him].” At the same hearing, defendant said he did
not know if his companions had knives in their possession. That was true; defendant was
unaware that his companions had knives until they used the knives during the fight.
DISCUSSION
Defendant contends that the trial court’s admission and consideration of the
2014 parole suitability hearing transcript was error because (1) it constituted an
involuntary confession that should have been excluded under the due process clauses of
the state and federal Constitutions, and (2) it violated his state and federal due process
rights under the use immunity doctrine. Defendant further contends, insofar as his claims
were forfeited for failure to object below, his trial counsel was ineffective in failing to
object. Both arguments fail on their merits.
1. Statutory Background
Effective January 1, 2019, Senate Bill 1437 limited accomplice liability under the
felony-murder rule7 and the natural and probable consequences doctrine.8 (§§ 188, 189,
as amended by Stats. 2018, ch. 1015, §§ 2–3; People v. Cruz (2020) 46 Cal.App.5th 740,
7 Prior to Senate Bill 1437’s enactment, “ ‘[t]he felony-murder rule impute[d] the
requisite malice for a murder conviction to those who commit[ted] a homicide during the
perpetration of a felony inherently dangerous to human life.’ ” (People v. Friend (2009)
47 Cal.4th 1, 76.)
8 Prior to Senate Bill 1437’s enactment, “ ‘ “[a] person who knowingly aid[ed] and
abet[ed] criminal conduct [was] guilty of not only the intended crime [target offense] but
also of any other crime the perpetrator actually commit[ted] [nontarget offense] that
[was] a natural and probable consequence of the intended crime.” ’ ” (People v. Chiu
(2014) 59 Cal.4th 155, 161.) “ ‘ “[B]ecause the nontarget offense [was] unintended, the
mens rea of the aider and abettor with respect to that offense [was] irrelevant and
culpability [was] imposed simply because a reasonable person could have foreseen the
commission of the nontarget crime.” ’ ” (People v. Lamoureux (2019) 42 Cal.App.5th
241, 248 (Lamoureux).)
8.
755; Lamoureux, supra, 42 Cal.App.5th at p. 246.) The Legislature’s purpose was “ ‘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 of the underlying felony who
acted with reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1(f).) Senate
Bill 1437 achieves these goals by amending section 188 to require that a principal act
with express or implied malice and by amending section 189 to state that a person can
only be liable for felony murder if (1) the ‘person was the actual killer’; (2) the person
was an aider or abettor in the commission of murder in the first degree; or (3) the ‘person
was a major participant in the underl[y]ing felony and acted with reckless indifference to
human life.’ ” (People v. Cornelius (2020) 44 Cal.App.5th 54, 57, abrogated on other
grounds in People v. Lewis (2021) 11 Cal.5th 952, 961–962.)
“Senate Bill 1437 also [added former section 1170.95, now section 1172.6, which]
established a procedure permitting certain qualifying persons who were previously
convicted of felony murder or murder under the natural and probable consequences
doctrine to petition the courts that sentenced them to vacate their murder convictions and
obtain resentencing on any remaining counts.” (Lamoureux, supra, 42 Cal.App.5th at
p. 246; former § 1170.95, added by Stats. 2018, ch. 1015, § 4, renumbered by Stats. 2022,
ch. 58, § 10, now § 1172.6.) Under that procedure, a convicted person is eligible for
relief if the following conditions are met: “(1) A complaint, information, or indictment
was filed against the [defendant] that allowed the prosecution to proceed under a theory
of felony murder [or] murder under the natural and probable consequences doctrine .…
[¶] (2) The [defendant] was convicted of murder … following a trial or accepted a plea
offer in lieu of a trial at which the [defendant] could have been convicted of murder .…
[¶] (3) The [defendant] could not presently be convicted of murder … because of [the]
changes to [s]ection 188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (a)(1)–
(3).)
9.
Under that procedure, once a defendant has made a prima facie case for relief, the
trial court is required to issue an order to show cause and hold an evidentiary hearing at
which the People bear the burden of proving beyond a reasonable doubt that defendant
could be convicted of murder or attempted murder under the law “as amended by the
changes to [s]ection 188 or 189 made effective January 1, 2019.” (§ 1172.6, subds. (c),
(d)(1) & (3).) At the hearing, “admission of evidence in the hearing [is] governed by the
Evidence Code”9 and “[t]he prosecutor and the [defendant] may also offer new or
additional evidence to meet their respective burdens.” (§ 1172.6, subd. (d)(3).)
2. Forfeiture
At the evidentiary hearing on defendant’s section 1172.6 petition, defendant
objected to admission of the 2014 parole suitability hearing transcript on the basis that the
statements fell within the use immunity doctrine. No objection was raised that admission
of the transcript constituted admission of an involuntary confession in violation of the
due process clauses of the state and federal Constitutions.
The failure to object to admission of evidence in the trial court generally forfeits a
claim on appeal; a principle applicable to constitutional claims. (People v. Myles (2021)
69 Cal.App.5th 688, 696 (Myles); People v. McCullough (2013) 56 Cal.4th 589, 593;
In re Sheena K. (2007) 40 Cal.4th 875, 880–881.) Defendant did not raise an objection to
admission of the 2014 parole suitability hearing transcript on the basis that it constituted
an involuntary confession. However, because defendant contends, assuming the issue is
forfeited, his counsel was ineffective in failing to raise the issue below, we exercise our
discretion to reach the merits of his claim to forestall the claim of ineffective assistance of
counsel. (See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [an appellate court has
9 Section 1172.6, subdivision (d)(3) creates an exception to the general Evidence
Code rules for admission of “evidence previously admitted at any prior hearing or trial
that is admissible under current law, including witness testimony, stipulated evidence, and
matters judicially noticed.”
10.
authority to reach a forfeited claim]; People v. Crittenden (1994) 9 Cal.4th 83, 146
[reviewing court may exercise discretion to consider forfeited claims to forestall
ineffective assistance of counsel arguments].)
3. Involuntary Confession
The due process clauses of “[b]oth the state and federal Constitutions bar the
prosecution from introducing a defendant’s involuntary confession into evidence at trial.”
(People v. Linton (2013) 56 Cal.4th 1146, 1176; accord, People v. Orozco (2019) 32
Cal.App.5th 802, 819.) A coerced or involuntary confession is inadmissible for any
purpose. (People v. Jimenez (2021) 73 Cal.App.5th 862, 875–876.) “ ‘ “The test for
determining whether a confession is voluntary is whether the defendant’s ‘will was
overborne at the time he confessed.’ ” ’ ” (Linton, at p. 1176.) “ ‘The prosecution has the
burden of establishing by a preponderance of the evidence that a defendant’s confession
was voluntarily made.’ [Citation.] ‘Whether a confession was voluntary depends upon
the totality of the circumstances.’ ” (Ibid.) We independently review a trial court’s legal
determination regarding voluntariness where the facts surrounding an admission or
confession are recorded and therefore not subject to dispute. (Id. at pp. 1176–1177.)
In Myles, the Court of Appeal addressed the voluntariness of the defendant’s
statements at a parole hearing while considering her argument that the statements were
entitled to use immunity. (Myles, supra, 69 Cal.App.5th at pp. 705–706.) The court
noted that the defendant was not required to testify at her parole hearing, inasmuch as
“parole cannot be conditioned on admission of guilt to a certain version of the crime.”
(Id. at p. 706, citing § 5011, subd. (b); Cal. Code Regs., tit. 15, § 2236; In re Swanigan
(2015) 240 Cal.App.4th 1, 14; In re McDonald (2010) 189 Cal.App.4th 1008, 1023.)
Furthermore, the defendant was advised at the parole hearing that she had the option to
not discuss the commitment offense and that choice would not be held against her.
However, she chose to discuss the offense and testified under oath regarding her role in
the crime. “Having chosen to be truthful in the assessment interview and testify
11.
truthfully at the parole hearing, it is not fundamentally unfair to admit that information
during a resentencing proceeding voluntarily initiated by [the] defendant bearing on some
of the same issues.” (Myles, at p. 706.)
Here, defendant contends in general that parole hearings are “inherently coercive”
and, in this case in particular, his statements at the parole hearings were involuntary
because the parole board commissioners “indicated at multiple points that appellant
needed to acknowledge and understand his reasons for participating in the killing in order
to be found suitable for parole.” Defendant argues that his testimony before the parole
board was not therefore aimed at providing a “detailed factual account of the events,” but
instead “taking responsibility although he had no recollection of stabbing Delgado.”
According to defendant, because the parole board places such a high premium on
“remorse and the related concept of ‘insight,’ ” defendants have “such a strong incentive
to offer, exaggerate, or indeed fabricate self-incriminating testimony that a [defendant’s]
decision to inculpate himself cannot be deemed voluntary.” (See also Cal. Code Regs.,
tit. 15, § 2281, subd. (d) [remorse and eight other factors are circumstances tending to
show the prisoner is suitable for release on parole].) However, as defendant
acknowledges, “[a] prisoner may refuse to discuss the facts of the crime in which
instance a decision shall be made based on the other information available and the refusal
shall not be held against the prisoner.” (Cal. Code Regs., tit. 15, § 2236; see § 5011,
subd. (b) [“The Board of Prison Terms shall not require, when setting parole dates, an
admission of guilt to any crime for which an inmate was committed”].) That defendant
may have had an incentive to admit having committed the offenses of conviction does not
suggest his will was overborne by official coercion, such that his statements were
involuntary.
As a threshold matter, despite the “incentives facing people seeking parole,”
“[t]here is no categorical exclusion of a defendant’s sworn parole hearing testimony” in
the section 1172.6 petition process. (People v. Mitchell (2022) 81 Cal.App.5th 575, 586
12.
(Mitchell).) As the court pointed out in Myles, and defendant acknowledges here, he was
not required to testify at his parole hearing. (Myles, supra, 69 Cal.App.5th at p. 706.) At
the parole hearing in this case, the presiding commissioner asked defendant’s counsel
whether defendant “was willing to speak to the life crime today.” Defendant’s counsel
responded, “He will regarding all matters.” Defendant was given the option to not testify,
acknowledged that he was advised of his hearing rights by his correctional counselor and
attorney prior to the hearing, and was represented by counsel at the hearing. The record
thus reflects that defendant was aware of his right to refrain from testifying in whole or in
part and was guided by counsel in these decisions.
Moreover, none of the commissioners promised defendant release in exchange for
admission of particular facts. (Cf. People v. Gonzalez (2012) 210 Cal.App.4th 875, 881,
884 [statement by parole agent that if defendant did not agree to speak with officers,
parole agent would be forced to recommend that defendant serve maximum time in
custody, knowing defendant feared returning to prison, rendered defendant’s confession
involuntary].) Rather, defendant was sworn to tell the truth. (See Mitchell, supra, 81
Cal.App.5th at p. 590 [“[t]he parole process emphasizes the importance of voluntary,
unvarnished truthtelling”].) Defendant’s contention at the parole hearing that he was
“taking responsibility” in admitting the facts of the crime even though he did not recall
what happened does not suggest that his testimony was involuntary. And while defendant
contends that he was pressured to admit responsibility based on his 2004 parole denial at
which he was purportedly told that he needed to “ ‘show remorse’ ” and “ ‘accept
responsibility,’ ” he twice thereafter simply stipulated to unsuitability for parole and
elected not to speak to the board. Defendant was aware of and previously exercised his
right not to speak to the board. He elected at the 2014 parole hearing to speak to the
parole board regarding the details of his offense under oath to tell the truth.
The totality of these circumstances does not suggest that defendant’s parole board
hearing testimony was involuntary or coerced. Accordingly, the trial court did not err in
13.
admitting defendant’s statements from the parole hearing transcripts. We therefore do not
address the parties’ arguments regarding whether admission of this testimony was
prejudicial and whether defendant’s trial counsel was ineffective.
4. Use Immunity
Defendant contends the admission of his statements to the parole board violated
his state and federal due process rights under the use immunity doctrine. We again
disagree.
Use immunity is a judicial rule of evidence that effectuates the privilege against
self-incrimination. (People v. Coleman (1975) 13 Cal.3d 867, 875, 889 (Coleman).) In
Coleman, the defendant’s criminal act was charged both as a violation of the defendant’s
then-current probation and a separate criminal act. The defendant testified at his
probation violation hearing and the prosecution subsequently sought to use that testimony
in their case-in-chief at the defendant’s trial. Our Supreme Court held that the testimony
was inadmissible: “[T]he testimony of a probationer at a probation revocation hearing
held prior to the disposition of criminal charges arising out of the alleged violation of the
conditions of his probation, and any evidence derived from such testimony, is
inadmissible against the probationer during subsequent proceedings on the related
criminal charges.” (Id. at p. 889.)
The Supreme Court’s holding rested on two “policies underlying the privilege
against self-incrimination.” (Coleman, supra, 13 Cal.3d at p. 875.) First, permitting
prosecutors to use a defendant’s probation revocation testimony to prove guilt at a
subsequent trial for the same conduct would “substantially lighten[]” the prosecution’s
constitutional burden of proof. (Id. at p. 876.) This is because, ordinarily, “the privilege
against self-incrimination requires the prosecution in a criminal trial to produce sufficient
evidence to establish the defendant’s guilt before he must decide whether to remain silent
or to testify in his own behalf.” (Id. at p. 875, italics omitted.)
14.
Second, permitting prosecutors to use such testimony would force the defendant to
choose between (1) testifying truthfully at the probation revocation hearing and possibly
incriminating himself or herself while presenting any mitigating circumstances regarding
the violation, (2) remaining silent at the probation revocation hearing and losing the
opportunity to present a potentially compelling case against probation revocation, or
(3) testifying falsely at the probation revocation hearing in a manner that will not damage
his or her defense at a subsequent trial. (Coleman, supra, 13 Cal.3d at p. 878.) “Thus,
when an alleged probation violation also constitutes a criminal offense for which the
probationer might subsequently be prosecuted, he may be presented with the ‘cruel
trilemma’ of self-accusation, perjury or injurious silence. To force an individual to
choose one of three such unpalatable alternatives runs counter to our historic aversion to
cruelty reflected in the privilege against self-incrimination.” (Ibid.)
Several Courts of Appeal have declined to extend the rationale of Coleman to
prohibit the use of parole hearing transcripts at section 1172.6 evidentiary hearings. In
Myles, the Court of Appeal pointed out that the Fifth Amendment privilege against
self-incrimination protects persons from being compelled to serve as a witness against
themselves in “ ‘ “any criminal case.” ’ ” (Myles, supra, 69 Cal.App.5th at p. 705.)
However, a section 1172.6 evidentiary hearing is not a trial de novo but an act of lenity
extended to defendants already serving a valid sentence for murder. Accordingly, the
Myles court held the use of parole hearing statements in such proceedings does not
violate the defendant’s Fifth Amendment rights. (Myles, at pp. 705–706.)
In People v. Duran (2022) 84 Cal.App.5th 920, the Court of Appeal noted that
“cases applying Coleman’s use immunity are … limited to situations where a defendant’s
prior statements might be later used against him in a manner that offends the privilege
against self-incrimination.” (Id. at p. 929 [collecting cases].) The court determined there
were two reasons why “this brand of use immunity does not apply to bar the use of a
defendant’s prior statements in a parole risk assessment at a subsequent section 1172.6
15.
evidentiary hearing.” (Id. at p. 930.) First, because the section 1172.6 evidentiary
hearing is not a “ ‘criminal case’ ” or “ ‘cause,’ ” it does not implicate the privilege
against self-incrimination. (Duran, at p. 930.) “Once a defendant’s ‘sentence has been
fixed and the judgment of conviction has become final,’ the ‘general rule’ is that ‘there
can be no further incrimination’ and hence ‘no basis for the assertion of the privilege.’ ”
(Ibid.) Because the section 1172.6 hearing is itself neither a subsequent retrial nor a new
sentencing, “Coleman’s core rationale—and hence its holding—is not implicated.”
(Duran, at p. 931.) Second, the Duran court noted that Coleman made clear that use
immunity does not apply “when a defendant’s prior statements are to be introduced ‘for
purposes of impeachment’ because the privilege against self-incrimination ‘does not …
encompass a right of an accused to lie.’ ” (Duran, at p. 931.) Thus, even assuming
Coleman applied, the court would have held the parole suitability hearing transcript
admissible, to the extent it was inconsistent with defendant’s testimony at the
section 1172.6 hearing regarding his involvement in Delgado’s death. (Id. at pp. 931–
932.)
Other courts have reached similar conclusions. (Mitchell, supra, 81 Cal.App.5th
at pp. 588–590 [declining to equate the § 1172.6 evidentiary hearing with a criminal
prosecution for purposes of use immunity]; People v. Anderson (2022) 78 Cal.App.5th
81, 88–93 [rejecting the argument that Coleman use immunity is not predicated on the
constitutional privilege against self-incrimination]; but see Mitchell, at pp. 602–605
(dis. opn. of Stratton, P. J.) [Coleman is not limited to the privilege against
self-incrimination and applies if the use of prior testimony would be fundamentally
unfair].) Defendant cites no cases to the contrary in this context. He simply argues that
the cases we cite were incorrectly decided.
Defendant does not provide a compelling justification for deviating from the
holding that the Fifth Amendment privilege against self-incrimination does not apply to
the section 1172.6 evidentiary hearing. He merely points out that, in this context,
16.
defendants have the right not to take the stand and the prosecution’s burden of proof at
the evidentiary hearing is beyond a reasonable doubt. However, that right and burden are
statutory rather than constitutionally imposed. Furthermore, as the Duran court pointed
out, a defendant’s conviction remains intact and presumptively authorized during the
pendency of the hearing. (Duran, supra, 84 Cal.App.5th at p. 931.) While defendant is
correct that defendant’s own statements from a parole hearing can have adverse
consequences for a section 1172.6 petition, those consequences would not be new; failure
of the petition would result in defendant’s conviction and sentence staying intact.10 It is
for this reason that “the panoply of rights that attach at trial do not apply during a
section 1172.6 evidentiary hearing.” (Duran, at p. 931.)
Accordingly, we join other courts that have considered this issue and hold that
Coleman’s use immunity does not extend to exclude defendant’s parole hearing testimony
from the section 1172.6 evidentiary hearing. We therefore again decline to address the
parties’ arguments regarding whether the admission of this testimony was prejudicial and
we need not address defendant’s ineffective assistance of counsel claim.
DISPOSITION
The order is affirmed.
10 The Mitchell court correctly noted: “A petition under … section [1172.6] is not a
criminal prosecution. [Citation.] It is the opposite of a criminal prosecution. A criminal
prosecution can only hurt a defendant and can never help. The process here is the
reverse: it can only help the defendant and can never hurt.” (Mitchell, supra, 81
Cal.App.5th at p. 588.)
17.