People v. Mitchell

Filed 7/22/22
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B308780

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. A639776
v.

RODERICK WAYNE
MITCHELL,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Tammy Chung Ryu, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda Lopez and J. Michael Lehmann,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________

Roderick Wayne Mitchell joined his older brother’s gang,
which celebrated violent acts done “just for the fun of it.” With
his fellow gang members, Mitchell took part in these crimes.
Then came this murder. While at a pool hall at 2 o’clock in the
morning, Mitchell and his brother decided to rob someone and
selected a victim: the driver in a nearby car waiting for food at a
drive-through. Along with a third accomplice, Mitchell waited
while his brother confronted the driver, who tried to drive away.
The brother fired at the fleeing driver. The gunfire did not
startle or deter Mitchell: instead of withdrawing from the
robbery when shots rang out, Mitchell pursued the car with his
brother. It crashed nearby. The brother gave the gun to Mitchell
and rifled the victim’s clothes for money. The brothers split the
cash evenly. Mitchell did not render or summon aid for the
victim or check his pulse or breathing. Rather, he returned to the
pool hall with his brother. The victim, hit by five shots, died in
the car.
As a matter of law, these facts establish Mitchell was a
major participant in the robbery who showed reckless
indifference to human life. Mitchell planned a violent crime with
a violent man, and when that man started shooting, Mitchell
stuck with the plan and continued with the violent crime.
Mitchell did not minimize risk or show concern for his victim.
Rather he held the gun, shared the take, and left the body.
We affirm the trial court’s findings. Mitchell’s role was
major. His indifference was evident. We share the trial court’s
view that “there’s no other way of interpreting that.”
We also hold, following a line of unbroken authority, that
the trial court could rely on sworn statements Mitchell made to
the parole board when Mitchell petitioned to be resentenced. The
point of this petitioning process is to find truth and to do justice.
In this quest, the facts must matter. It is fair to permit the court

2
to evaluate how Mitchell described his role in his crime. The
Legislature set the parameters for admissible evidence in this
process, and these parameters invite all admissible evidence,
which here includes Mitchell’s parole board statements.
It is certainly true Mitchell faced different incentives in the
parole hearing and in his resentencing petition. The parole
process rewards acceptance of responsibility while the
resentencing process here rewards a diminished role in criminal
events. Despite these differing incentives, the Legislature did not
bar consideration of parole hearing statements. There is no
statutory or constitutional basis for excluding this evidence.
When individuals seek to gain a sentencing advantage, it is fair
to examine their own words to see if they deserve it. If they claim
their culpability is low but their words show otherwise, this is
pertinent.
Undesignated statutory citations are to the Penal Code.
I
In 1988, Mitchell pleaded guilty to first degree murder. As
part of his plea, Mitchell expressly waived the right against self-
incrimination. Mitchell entered his plea after confessing to police
and before a preliminary hearing.
A police report documented Mitchell’s confession. On
appeal, Mitchell quotes this confession in full and has abandoned
trial court objections to it. The report recounts:
“[Mitchell] stated he and his brother observed the victim
and decided to rob him. They approached the victim and
demanded money. When the victim refused [Mitchell] stated his
brother shot the victim. As the victim drove from the location an
additional shot was fired at the victim which broke the rear
vehicle window. [Mitchell] continued to say that after they heard

3
the victim’s vehicle crash, they went to his location and took
approximately $200.00 from his pocket. [Mitchell] stated he took
$100.00 and his brother kept $100.00 of the victim’s money.”
The trial court sentenced Mitchell to 25 years to life in
prison with the possibility of parole.
In 2017, Mitchell described his crime under oath at a parole
consideration hearing. The transcript of this hearing runs to 80
pages.
Mitchell recounted his knowledge of and relationship with
the man—his brother—with whom he planned and committed
this crime. This evidence supported the inferences that
Mitchell’s brother had committed violent crimes and that
Mitchell knew this history because Mitchell had participated in
it.
Following his brother, Mitchell joined the Crips at age 15.
After that, “the majority of people that I’m hanging around with
are gang members.” With his gang, Mitchell was “[s]elling drugs,
uh, robbing, stealing, arson.” “[O]ne day we sat around and—and
set a fire on a—it was a truck, just for—just for the fun of it and
everybody just looked and—and—we drank alcohol and it was
like a—a party.” Close to age 18, Mitchell began carrying a gun.
“In the gang life it was, uh, celebrated to see someone commit a
violent act on somebody else.” “[W]e did celebrate just
committing violent acts just for—just for the fun of it.”
Mitchell described the specific crime to which he had
pleaded guilty. The italics are ours.
Mitchell was staying with his brother. They were at a pool
hall after midnight and “we were getting high at the moment.”
“We decided to rob somebody so we looked around and seen [the
victim], uh, at a food service, so the three of us walked over

4
there.” Mitchell explained his brother had a gun. “So, as we
stood over there looking out he went around the building and [the
victim] was in his car at a drive-thru, so he went around the
building to confront [the victim]. At that time, uh, we was just
standing by, watching out. So about a couple of minutes went
blowing by and we heard gunshots and [the victim] pulled out of
the drive—the drive-thru and made a left, he made a hard right
and crashed into the back of a church. So at that time, we
followed the car in which, uh, we went down there and my
brother went on, took his money while we held the gun and after
that—
“[Q]: You said while we held the gun?
“[A]: Right.
“[Q]: That sounds like more than one person is holding the
gun and who’s holding the gun?
“[A]: I held the gun while we went into [the victim’s] pocket.
“[Q]: What are you saying to him at this point?
“[A]: Hurry up, let’s go. You know, if anybody sees us we
are going to be in trouble.”
Mitchell said he assumed the driver was dead, but he did
not learn with certainty about the death until after his arrest.
He claimed at the time of the shooting “we had no idea that he
would—he had been murdered.”
The hearing panel found Mitchell was not suitable for
parole. Mitchell’s extensive prison disciplinary record led the
panel to conclude Mitchell posed a danger to the public if
released. But the panel also signaled Mitchell more recently had
been on the right track, noting he would “probably stand a pretty
good chance” if he would refrain from further misconduct and
would file a petition to advance his next parole hearing.

5
 In 2019, Mitchell filed a petition for resentencing under
former section 1170.95 (now § 1172.6).
Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
To minimize awkwardness from this renumbering, we refer to
“the statute” or to “former section 1170.95.”
Mitchell filled out a form saying, “I, Roderick Mitchell,
declare as follows: [¶] . . . [¶] I was not a major participant in
the felony or I did not act with reckless indifference to human life
during the course of the crime or felony.” Mitchell declared
“under penalty of perjury that the above is true” and signed and
dated his declaration.
The prosecution opposed Mitchell’s petition and supplied a
transcript of the 2017 parole hearing, a probation officer’s report,
and relevant police reports.
Mitchell filed a reply and objected to the parole hearing
transcript. He argued, among other things, the transcript was
hearsay and was protected by use immunity, and it was unfair to
use this evidence against him.
The trial court appointed counsel, issued an order to show
cause, and held an evidentiary hearing.
At the hearing, the court stated (with our italics), “I think,
before we proceed, we do have to have a ruling on what can be
considered at this hearing. [¶] . . . [¶] The court . . . has
permitted additional evidence that would shed light on whether
Mr. Mitchell was either a major participant in the underlying
felony which is robbery in this case and acted with reckless
disregard for human life. [¶] . . . [¶] [T]he objection that [the
defense] articulated [about the] right to confront or hearsay
objections would not apply to Mr. Mitchell’s own statements.

6
And . . . those would be the only evidence I would consider[:] . . .
his statements at the parole hearing and also in the police report.
[¶] . . . [¶] So I am going to consider defendant’s statements only
as they’re contained in the parole board hearing transcript and
the police reports.”
Both sides argued. Neither presented witnesses.
The trial court denied Mitchell’s petition with a thoughtful
and extensive analysis.
“I find that Mr. Mitchell was a major participant in the
robbery.
“He agreed to rob someone with the brother, yes, for money
to buy more drugs. That may have been the primary motive.
And he actually helped pick out the victim with the brother.
They agreed who the victim was going to be. They saw him. I
think it was a drive through or the parking lot of the restaurant.
And they—he, the defendant, with his brother—and there was
another person present—agreed to rob that particular victim.
“And he did help rob the victim. . . . But do you remember
he was the one who held the gun? The brother gave him the gun,
and the defendant held the gun while the brother went through
the injured victim’s body and personal effects to get the 140 or
$190 from the victim.
“Defendant held the gun although defendant did state I
think maybe at the parole board hearing he thought that at that
point in time the victim may have been dead. But it could also be
interpreted that he held the gun just in case the victim resisted.
Either way he was a major participant in the robbery. That’s the
finding of this court.
“The real issue in the court’s mind is did he act with
reckless indifference to human life? It is worth noting that the

7
shooter and the killer in this case was Mr. Mitchell’s brother
whom he hung out with or lived with and did drugs with and
belonged to the same gang with during that period of time.
“It is sad that Mr. Mitchell was just a young person at the
time. I think he was 18. So—and that he was abusing drugs.
But being high or choosing to get high is not a defense to
committing a robbery in this case.
“And because he was—it was his brother and they belonged
to the same gang and they did drugs together, there is a strong
indication that he knew or should have known his brother would
be armed or use some sort of a weapon. There’s no indication
that Mr. Mitchell was surprised at all when the gun was actually
used. He never mentioned, I was shocked when my brother shot
at the victim. I did not know he had a gun. There was nothing
like that ever indicated by Mr. Mitchell in all the statements he
made about his involvement in this incident which all goes to
support the argument or the assumption that Mr. Mitchell knew
that his brother had a gun or intended to use a weapon in the
robbery.
“And [the prosecutor] makes a very good point that the
shooting actually happened prior to the actual robbery taking
place which meant that Mr. Mitchell had the opportunity to stop
his involvement. When the shots were first fired at the victim,
that’s when Mr. Mitchell—even if he did not know his brother
had a gun or was going to use a weapon or was going to try to kill
anyone, that was the point in time when he could say, hey, I did
not know you were going to try to kill someone, try to rob
them. . . . But he didn’t. He just stood there, didn’t try to stop
his brother when his brother shot again.

8
 “The victim had five gunshot wounds. The second time his
brother shot as the victim drove away was what shattered the
rear window of the car. And that’s—I believe that is when the
victim actually crashed into, I think, a church or a parking lot.
“So the defendant’s brother, codefendant, the shooter shot
at the victim. Defendant did not thereafter distance himself or
walk away being surprised that a gun was used or someone was
going to get killed in this robbery, did not try to stop his brother
when his brother shot again. Let’s say there was a surprise and
it happened really quickly and there was no time for Mr. Mitchell
to actually reflect and respond. However, but then after that
happened, instead of walking away then after the second round of
shots, he actually ran with a codefendant to the victim to
continue the robbery or complete the robbery.
“And on top of that, he held a gun on the victim basically.
If he truly believed the victim had been killed or there was no
way that the victim can resist or anything like that, there was no
need for him to hold the gun. They could have put away the gun.
But he held the gun. He did not—at that point in time, he
assisted his brother to rob the victim while holding the gun.
“And he didn’t try to assist the victim at all. I know it
sounds kind of [incredible] to expect somebody to participate in a
robbery that a gun was used that they would thereafter call for
help for the victim. But that would be an indication that
somebody did not intend to aid a robbery where someone was
going to die. That would indicate that he did not, in fact, act with
reckless indifference to human life, . . . that he did not intend to
aid in that regard, aid just in the robbery but not in killing
someone in the commission of that robbery. That is the reckless
indifference.

9
 “Did he act with reckless indifference? I would have to say,
yes, he did despite the fact that he was only 18 and it was his
brother that he was with. And he may have been high on drugs.
He acted with reckless indifference to human life when his
brother shot at the victim. And he still went with the brother to
get the money from the victim, held the gun while his brother did
that. That is, I find, an action taken with reckless indifference to
human life. To me there’s no other way of interpreting that.
“So I am going to find that [the] People met their burden of
proof that defendant is ineligible for relief because he acted with
reckless indifference to human life in addition to being a major
participant in the robbery.
“This is a sad situation, as [defense counsel] pointed out,
that Mr. Mitchell was just a teenager at the time and he was—he
may have been abusing drugs that affected him in some way.
But our law does not provide an excuse for that kind of action
just because you are 18 or you are abusing drugs. Somebody got
shot five times and killed here. And he was robbed while he was
sitting in his car bleeding to death.
“And Mr. Mitchell being young at the time is not a reason
for this court to grant this petition because he was a major
participant who acted with reckless indifference to human life.
“So the petition under 1170.95 is denied.”
II
Mitchell’s first contention is that the trial court erred by
considering the parole hearing transcript. He argues the
incentives facing people seeking parole, and concerns regarding
self-incrimination and the burden of proof, make it improper to
consider such evidence in proceedings under the statute.

10
 This contention is erroneous. There is no categorical
exclusion of a defendant’s sworn parole hearing testimony in this
process. There never has been, and it would contravene the
statute’s language and purpose to create one now.
The statutory language shows parole hearing transcripts
are proper evidence in this setting. Before and after its recent
amendment, the statute permitted the parties to rely on “new or
additional evidence” in these hearings. (Former § 1170.95, subd.
(d)(3) [now § 1172.6, subd. (d)(3)].)
Through Senate Bill No. 775 (2021–2022 Reg. Sess.),
effective January 1, 2022, the Legislature clarified the scope of
admissible evidence at the evidentiary hearing. (Stats. 2021, ch.
551, § 2.) The statute now specifies the Evidence Code governs
the admissibility of evidence. This shows the Legislature focused
on the issue of admissibility and made the statute govern these
proceedings. The Legislature could have incorporated the
exclusionary principles Mitchell advocates but did not.
The parole transcript is and was properly admitted
evidence. The trial court diligently considered Mitchell’s
evidentiary objections to the parole transcript and to the police
reports. To overcome hearsay objections, the court limited its
consideration to the admissions of a party opponent. (See Evid.
Code, § 1220 [hearsay exception for party admissions].)
Mitchell’s briefing to us does not argue the Evidence Code
bars this evidence.
As a matter of statutory wording, then, this parole
transcript was proper evidence.
The same result follows when we examine the statute’s
purpose. (See People v. Lewis (2021) 11 Cal.5th 952, 962 (Lewis)
[construe the statute to achieve its purpose].) The overall goal of

11
the petitioning process here is to make the punishment fit the
crime in a precise and particularized way. The Legislature
sought to ensure murder culpability is commensurate with a
person’s individual actions. (Id. at p. 971.)
That takes facts.
The Legislature responded to longstanding critiques of
murder doctrine by creating a process to ameliorate past excesses
that created sentences judged to be too long and to resentence
where appropriate. So the focus is on examining the truth of
what happened to evaluate whether to reduce an individual’s
sentence so the punishment fits the crime. (See People v. Gentile
(2020) 10 Cal.5th 830, 838–839, 846–847.)
The Legislature meant for trial courts to zero in on the
“individual culpability” of each petitioning defendant. (See Stats.
2018, ch. 1015, § 1(d).) “A person’s culpability for murder must
be premised upon that person’s own actions and subjective mens
rea.” (Id., § 1(g).) This is essential to serve the “bedrock principle
of the law and of equity” that people be punished only for their
own actions. (Id., § 1(d).) Tailoring punishment precisely would
address fairly the culpability of the individual and would assist in
the reduction of prison overcrowding, which has resulted in part
from lengthy sentences that are not commensurate with the
culpability of the individual. (Id., § 1(e).)
Contrast what the Legislature did do with an alternative it
did not enact. To combat overincarceration, a different approach
would have been to pass a blanket rule: for example, “no one
shall remain in prison for more than X years.” That categorical
approach would not turn on factual details. But the statute takes
the opposite approach: tailor sentences to the facts of each case.

12
 It would contravene this goal of individualizing punishment
for courts to blind themselves to the individualized facts of the
case. This appeal illustrates how a parole transcript can be a
valuable source of information about a particular defendant’s
actions, and thus potentially important in the work of aligning
individual punishment with individual culpability. This work
benefits from the kind of evidence a parole transcript can provide.
Mitchell relies on a line of cases starting with People v.
Coleman (1975) 13 Cal.3d 867 (Coleman), in which courts were
concerned about using a defendant’s statements at a later
criminal trial (or a later point in the original prosecution) and
adopted “a limited species of use immunity grounded in
California’s constitutional guarantee against self-incrimination.”
(People v. Carter (1993) 19 Cal.App.4th 1236, 1248.) (E.g.,
Coleman, at pp. 876–877, 889, 892 [probationer’s testimony at
revocation hearing inadmissible in later criminal trial]; Ramona
R. v. Superior Court (1985) 37 Cal.3d 802, 809–810 (Ramona R.)
[minor’s statements at juvenile fitness hearing and to probation
officer inadmissible in later criminal trial]; In re Jessica B. (1989)
207 Cal.App.3d 504, 520–521 [parent’s testimony in dependency
proceedings and statements in court-ordered therapy
inadmissible in prosecution for child abuse].)
For the reasons outlined in People v. Myles (2021) 69
Cal.App.5th 688 (Myles), we reject Mitchell’s arguments. Myles
held a parole hearing transcript is admissible as “new or
additional evidence” under the statute. (Id. at pp. 697–703.) It
explained why such a rule is necessary in plea cases and why
extending judicially created use immunity to petitioner-initiated
collateral proceedings like these is inapt. (Id. at pp. 699, 704–
706.) As other courts have done, we follow Myles’s well-reasoned

13
analysis. (E.g., People v. Anderson (2022) 78 Cal.App.5th 81, 89–
93 (Anderson).)
Mitchell’s reliance on Coleman turns on equating the
petitioning process here with a criminal prosecution. This
attempted equation is mistaken.
A petition under former section 1170.95 is not a criminal
prosecution. (People v. Silva (2021) 72 Cal.App.5th 505, 520.) 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.
The statute offers petitioning prisoners the possibility of
getting out sooner. From the defendants’ perspective, this
process is all gain and no cost. That can never be said of a
criminal prosecution. Criminal prosecutions heavily burden
defendants they target.
Many constitutional protections that characterize
burdensome criminal prosecutions thus do not apply in this
ameliorative process. (See People v. James (2021) 63 Cal.App.5th
604, 610 (James) [“we agree with the many courts that have held
that a convicted person litigating a section 1170.95 petition does
not enjoy the rights that the Sixth Amendment guarantees to
criminal defendants who have not yet suffered a final
conviction”]; People v. Anthony (2019) 32 Cal.App.5th 1102, 1156
[“the Legislature’s changes constituted an act of lenity that does
not implicate defendants’ Sixth Amendment rights”].)
For instance, there is no constitutional right to counsel at
the outset of this process. (Lewis, supra, 11 Cal.5th at p. 973.)
There is no constitutional right to trial by jury. (James,
supra, 63 Cal.App.5th at p. 609; cf. People v. Perez (2018) 4
Cal.5th 1055, 1063–1064 [an evidentiary hearing on a petition for

14
resentencing under Proposition 36 does not trigger the right to a
jury trial because that legislative act of lenity does not implicate
Sixth Amendment rights].)
There is no constitutional right against double jeopardy.
(People v. Hernandez (2021) 60 Cal.App.5th 94, 111.)
There is no constitutional right against self-incrimination
in the process. (See Myles, supra, 69 Cal.App.5th at pp. 704–706;
see also People v. Lopez (1999) 71 Cal.App.4th 1550, 1554 [when a
defendant has pleaded guilty and time to appeal has run without
an appeal, the defendant’s privilege to avoid compelled self-
incrimination with regard to the facts underlying the conviction
no longer exists].)
Mitchell’s counsel conceded at oral argument that there is
no Fifth Amendment right against self-incrimination here. That
is correct as a matter of law. Yet his argument for use immunity
is built on cases that are tied to the right against self-
incrimination. (See People v. Collins (1986) 42 Cal.3d 378, 386
[“Coleman and Ramona R. were concerned with protecting a
fundamental constitutional right—freedom from self-
incrimination during a criminal trial”]; see also Anderson, supra,
78 Cal.App.5th at p. 91 [“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”]; id. at p. 93 [“Where
the privilege against self-incrimination is not implicated, the
rationale for immunities at issue in Coleman and Ramona R.
disappears”].)
This statute set up a beneficial process at odds with a
shadow right against self-incrimination. This resentencing
process could not even begin until Mitchell gave the court his

15
statement, under oath, about his role in the crime to which he
pleaded guilty. (See former § 1170.95, subd. (b)(1)(A) [now
§ 1172.6, subd. (b)(1)(A)] [to commence the process, petitioning
defendants must submit “a declaration by the petitioner”].)
Mitchell wrongly protests the parole board promised him
use immunity when it told him that “[n]othing that happens here
today is going to change the court findings as we’re not here to
retry your case.” What the board said was true, and it did not
create use immunity. The point of trial is to determine guilt or
innocence, and Mitchell’s guilty plea settled that issue. The
parole board was not there to retry Mitchell’s guilt or innocence.
It was there to hear what he had to say about himself and his
actions and prospects. The board did not promise use immunity.
The parole process emphasizes the importance of voluntary,
unvarnished truthtelling. California regulations for parole
hearings provide, with our emphasis: “The facts of the crime
shall be discussed with the prisoner to assist in determining the
extent of personal culpability.” (Cal. Code Regs., tit. 15, § 2236.)
But the board “shall not” require an admission of guilt and “shall
not” hold a prisoner’s refusal to discuss the crime against the
prisoner. (Ibid.)
The trial judge is ideally situated to determine whether the
incentives at a specific parole hearing mesh with the statute’s
goal of aligning punishment with true culpability. When there
are valid reasons to doubt the probity of a parole hearing
statement, the trial judge can hear and appraise arguments in
the case’s context and accord the statement due weight. Trial
judges are expert at evaluating—word by word—whom and what
to believe in individual situations. No reason exists to preempt

16
trial judges’ particularized evaluation with our own blanket rule
of exclusion.
Mitchell contends it is unfair to use his own words against
him. What is the unfairness, exactly? At the parole hearing and
in his petition for resentencing, Mitchell sought to reduce the
punishment for a crime to which he pleaded guilty. Contrary to
Mitchell’s claim, it is fair and indeed sensible to say a convicted
person’s own words are pertinent when that person petitions for
the benefit of resentencing.
The statute strives to achieve justice. It would be unjust
for Mitchell to gain an advantage his sworn description shows he
does not merit.
The trial court did not err in considering Mitchell’s parole
hearing testimony.
III
Mitchell initially accepts our standard of review is
sufficiency of the evidence but then argues we should
independently review the denial of his petition because the trial
court heard no live testimony. He cites People v. Vivar (2021) 11
Cal.5th 510 but ignores Vivar’s footnote 7, which expressly
cautioned against extensions of the type Mitchell urges. The
proper standard of review thus defers to the trial court’s
factfinding. We review the trial court’s findings for substantial
evidence. (People v. Clements (2022) 75 Cal.App.5th 276, 298.)
We view the facts in the light most favorable to the People.
In this process, we presume in support of the judgment the
existence of every fact that can be reasonably deduced from the
evidence, whether direct or circumstantial. (People v. Owens
(2022) 78 Cal.App.5th 1015, 1022; see also People v. Clark (2016)
63 Cal.4th 522, 610 (Clark).) We must accept factual inferences

17
in favor of the trial court’s ruling. (People v. Zamudio (2008) 43
Cal.4th 327, 342, 346, fn.7, 357.) Where Mitchell urges contrary
and conflicting inferences, then, we must reject them.
Substantial evidence supports the finding, beyond a
reasonable doubt, that Mitchell was a major participant in a
felony who acted with reckless indifference to human life. (See
§ 189, subd. (e)(3); see also People v. Douglas (2020) 56
Cal.App.5th 1, 7, 9 [explaining how former section 1170.95
narrowed felony murder and how appellate courts assess a
petitioner’s culpability].)
Mitchell was a major participant. Mentally, Mitchell
helped decide to rob, helped plan the robbery technique, and
helped select the victim. Physically, Mitchell was on the scene
from start to finish. Tangibly, he helped with the gun and split
the proceeds equally with the shooter: his fellow gang member
and brother. At every stage, Mitchell was a full partner in crime.
Mitchell was recklessly indifferent to human life. We
analyze this issue as the trial court did, with the guidance of the
now-familiar decisions in Banks, Clark, and Scoggins. (People v.
Banks (2015) 61 Cal.4th 788 (Banks); Clark, supra, 63 Cal.4th
522; In re Scoggins (2020) 9 Cal.5th 667 (Scoggins).) These state
decisions charted a “ ‘spectrum of culpability’ ” set forth in two
opinions from the Supreme Court of the United States.
(Scoggins, at p. 675, quoting Banks, at p. 811.) These two federal
decisions are Enmund v. Florida (1982) 458 U.S. 782 (Enmund)
and Tison v. Arizona (1987) 481 U.S. 137 (Tison).
“[I]t is important to consider where the defendant’s conduct
falls on the ‘spectrum of culpability’ that Enmund and Tison
established. . . . On one end of the spectrum is Enmund, ‘the
minor actor in an armed robbery, not on the scene, who neither

18
intended to kill nor was found to have had any culpable mental
state.’ ” (Scoggins, supra, 9 Cal.5th at p. 675, citations omitted.)
The other end of the spectrum are the 19 and 20 year old
defendants in the Tison case, who were major participants who
acted with reckless indifference to human life, even though
neither of them shot any murder victim. The Supreme Court of
the United States, speaking through Justice O’Connor, ruled it
was therefore constitutional to impose the death sentence on the
youthful Tison defendants. (Tison, supra, 481 U.S. at pp. 142,
151–152, 158.) The California Supreme Court embraced these
federal decisions as a matter of state law. (E.g., Scoggins, at p.
675 [Enmund and Tison are “instructive”].)
Scoggins, the most recent of any of these decisions,
summarized the earlier ones and established the proper
approach. We are to analyze the totality of the circumstances to
determine whether Mitchell acted with reckless indifference to
human life.
“Relevant factors include: [1] Did the defendant use or
know that a gun would be used during the felony? [2] How many
weapons were ultimately used? [3] Was the defendant physically
present at the crime? [4] Did he or she have the opportunity to
restrain the crime or aid the victim? [5] What was the duration
of the interaction between the perpetrators of the felony and the
victims? [6] What was the defendant’s knowledge of his or her
confederate’s propensity for violence or likelihood of using lethal
force? [7] What efforts did the defendant make to minimize the
risks of violence during the felony?” (Scoggins, supra, 9 Cal.5th
at p. 677.)
We address these seven points, one by one.

19
 First, did the defendant use or know that a gun would be
used during the felony? Mitchell and his brother formulated a
plan to rob a man in a car. A gun was necessary for their plan,
for otherwise a driver would simply accelerate and escape with
the money that was the object of the design. By jointly
composing and pursuing this plan, Mitchell subjectively and
consciously disregarded “ ‘the significant risk of death’ ” his
actions necessarily created. (Scoggins, supra, 9 Cal.5th at p. 677,
quoting Banks, supra, 61 Cal.4th at p. 801.)
Second, how many weapons were ultimately used? The gun
was used, to deadly effect, because the driver did try to accelerate
and to escape with his money.
Third, was the defendant physically present at the crime?
Mitchell was physically present at every stage of the crime:
planning, execution, dividing the spoils, and flight. In the trial
court, Mitchell’s counsel conceded his presence at the scene.
Fourth, did the defendant have the opportunity to restrain
the crime or aid the victim? Mitchell had the opportunity to
restrain the crime and to aid the victim. At the outset, Mitchell
could have rejected the planned crime or could have adjusted the
method to take victim welfare into account. There was none of
that.
Once the gunfire started, Mitchell worked to complete the
robbery, not to care for the victim. The police report showed two
rounds of shooting. The first was when the victim refused the
brother’s robbery demand. The second was when the victim tried
to escape by driving away. The interval separating these rounds
gave Mitchell options. He had the chance to tell his brother to
stop the shooting. He could have tried to call off the plan. Or he
could have fled the scene. During this time Mitchell had no way

20
to know the victim’s condition. Had he cared about the victim’s
well-being, Mitchell could have shown it.
Mitchell never moved away from the violence. He went to
the crashed car to help rob the driver. These actions support the
trial court’s inference the gunshots were unsurprising to him.
Mitchell held the gun his brother gave him and told his
brother to hurry. He argues he assumed the victim was dead, so
his actions after the shooting do not show indifference to his
victim’s plight. But Mitchell also swore he learned only later,
after his arrest, that the victim had died. He claimed at the time
of the shooting “we had no idea that he would—he had been
murdered.”
Mitchell never checked for a pulse or for breathing. (Cf.
Scoggins, supra, 9 Cal.5th at p. 680 [“Scoggins walked over to the
crime scene and checked if [the victim] was still breathing after
the shooting”].)
In a substantial evidence review, we draw factual
inferences in favor of the trial court’s analysis. Mitchell was not
positive the driver was dead, and the fair inference is that
Mitchell held the gun to guarantee the wounded driver would not
hamper the robbery.
When the circumstances allow different inferences,
defendants’ actions after shootings “may not be very probative” of
their mental state. (Scoggins, supra, 9 Cal.5th at p. 679.) This
rule discounts the weight of the aid factor in some circumstances,
but the factor remains an appropriate consideration.
Mitchell’s case lacks the ambiguity present in the Scoggins
case. There, the defendant came to the crime scene, checked if
the victim was breathing, and behaved calmly. This conduct was
ambiguous: it could demonstrate he had anticipated lethal force

21
and was unsurprised by the “deadly turn of events,” or,
conversely, he believed he lacked culpability and intended to aid.
(Scoggins, supra, 9 Cal.5th at p. 680.)
No one suggests Mitchell attempted to aid the recently shot
victim in any way. Nor did Mitchell flee after the shooting, which
would support his rejection of his brother’s actions. (See Clark,
supra, 63 Cal.4th at p. 620.) Instead, while the victim lay
bleeding, Mitchell’s only manifested concern was to rob the man.
That was cold. There is no ambiguity. Mitchell’s action
and inaction showed indifference.
Fifth, what was the duration of the interaction between the
perpetrators of the felony and the victims? The duration was
brief. This was because the frightened victim tried to flee. This
does not show Mitchell had compassion or regard for the victim.
Sixth, what was the defendant’s knowledge of his or her
confederate’s propensity for violence or likelihood of using lethal
force? Mitchell’s knowledge of his confederate’s propensity for
violence was considerable. As the trial court found as a fact, the
man was “Mitchell’s brother whom he hung out with or lived with
and did drugs with and belonged to the same gang with during
that period of time.”
The record amply supports this factual finding, to which we
defer. This older brother brought Mitchell into the gang, and
after that Mitchell mainly hung out with fellow gang members,
presumably including his brother. With them Mitchell engaged
in a variety of crimes: “robbing, stealing, arson.” “In the gang
life it was, uh, celebrated to see someone commit a violent act on
somebody else.” “[W]e did celebrate just committing violent acts
just for—just for the fun of it.”

22
 Beyond being siblings, Mitchell and his brother were long-
time fellow Crips, and they lived together, hung out together, and
did drugs together. From years of experience, Mitchell knew his
fellow gang members had a history of violence and of celebrating
that violence. For Mitchell, his older brother was a known
quantity.
Mitchell planned the robbery with this knowledge of his
brother and this history. The inference must be that Mitchell
knew his robbery partner could resort to violence “just for the fun
of it.”
Seventh, what efforts did the defendant make to minimize
the risks of violence during the felony? Mitchell made no effort to
minimize the risks of violence. He concedes this on appeal. This
abandon shows indifference to the risk to human life.
Under the Banks-Clark-Scoggins analysis, this case is not
close. Mitchell was indifferent to the risk to human life, and his
disregard involved a gross deviation from the standard of conduct
that a law-abiding person would observe in his situation.
(Scoggins, supra, 9 Cal.5th at p. 677.)
Mitchell says the “anticipated proceeds” from the robbery
likely were too small to give him reason to expect lethal force.
The better inference, the one consistent with the trial court’s
analysis, is that the victim’s life was worth little to Mitchell.
Mitchell argues his crime was a “ ‘garden variety’ armed
robbery.” The Supreme Court explained this phrase applies
when “the only factor supporting reckless indifference to human
life is the fact of the use of a gun.” (Clark, supra, 63 Cal.4th at p.
617, fn. 74.) In this case, by contrast, most factors counter
Mitchell’s petition for the benefit he seeks.

23
 We ascribe meaning to Mitchell’s actions despite his age.
Youth can distort risk calculations. Yet every 18 year old
understands bullet wounds require attention. The fact of youth
cannot overwhelm all other factors. (See Tison, supra, 481 U.S.
at pp. 142, 151–152, 158 [death sentence for 19 year old was
constitutional because he was a major participant who acted with
reckless indifference].) Weight appropriate to Mitchell’s youth is
overborne here by the Banks-Clark-Scoggins factors that show
Mitchell’s indifference to his victim’s life. As the trial court
rightly concluded, “Mr. Mitchell being young at the time is not a
reason for this court to grant this petition because he was a major
participant who acted with reckless indifference to human life.”
Mitchell presents sympathetic facts about his childhood
circumstances. These facts are not pertinent to whether Mitchell
was recklessly indifferent at the time of his crime, but they can
be appropriate to the question of whether Mitchell should now be
released. The parole board delved empathetically into a review of
Mitchell’s life and prospects, including the many factors
suggesting Mitchell remained a risk to public safety.
Transforming petitioning under former section 1170.95 into an
extra-statutory supplement to the parole process would be
unjustified, however: the statute and the case law provide no
basis for this expansion—which would be substantial if it were to
be comprehensive—and the parole board has access to extensive
assessment information unavailable to parties and courts in the
former section 1170.95 context.
The trial court correctly concluded Mitchell remained liable
for felony murder and properly found Mitchell was ineligible for
relief.

24
 DISPOSITION
We affirm the trial court’s order denying Mitchell’s
resentencing petition.

WILEY, J.

I concur:

HARUTUNIAN, J. *

* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

25
STRATTON, P. J., Dissenting.
As distasteful as it may be to dissect a defendant’s
participation in events resulting in murder, precedent commands
us to do so to arrive at a just result. Dissect we must. We are
tasked with separating “garden variety” armed robberies from
more serious offenses. (People v. Clark (2016) 63 Cal.4th 522, 617
& fn. 74 (Clark).) That a person can agree to participate in an
armed robbery and still not satisfy the requirements of reckless
indifference under our caselaw underscores the precision with
which we must judge the evidence of appellant’s actions. 1

1 I find the majority’s rendition of the facts unreliable. The
unsupported inferences are legion. There is no evidence the
brothers had a long history of violent crime together; there is no
evidence one way or another whether appellant was startled
when his brother opened fire. The evidence is that the brothers
ran after the victim’s car after they heard it crash nearby. They
did not rifle through the victim’s clothes together. There is no
evidence whether appellant knew about his brother’s past crimes.
There is no evidence whether appellant expressed surprise at the
unfolding events.

The majority treats appellant’s testimony at the parole
hearing as though it were the result of a focused police
interrogation instead of what it was – a hearing to determine if
appellant was ready to be paroled. The majority has taken
appellant’s direct answers to direct questions by the parole
commissioners and extrapolated to make inferences on issues the
commissioners never raised and appellant was never asked
about. In another vein, when a statement suits the analysis, the
majority relies on general statements in police reports rather
than appellant’s more specific parole board testimony. Another
reason not to allow this type of testimony as it is rife for abuse.

1
 Therefore, I dissent. This is a garden variety armed
robbery. The evidence is insufficient to support a finding of
reckless indifference to human life. I also would hold that the
People’s use of appellant’s testimony before the parole board
violated People v. Coleman (1975) 13 Cal.3d 867 (Coleman).

I. Reckless Indifference
In 1988 when he was 19 years old, appellant pleaded guilty
to first degree felony murder. He entered the plea before the
preliminary hearing so there was no testimony or evidence on
record against him. At the evidentiary hearing, the only evidence
presented by the People was appellant’s testimony before the
parole board considering his suitability for parole 30 years after
the conviction. At the evidentiary hearing, the trial court stated it
would not consider any statements other than statements by
appellant. I understand that to mean the trial court did not
consider the hearsay police reports the People submitted to the
court along with the parole board transcript. Neither should we.
Our Supreme Court has set out factors to consider in
determining whether a defendant is a major participant in a
felony murder who acted with reckless indifference to human life.
(Clark, supra, 63 Cal.4th 522 [factors for reckless indifference];
People v. Banks (2015) 61 Cal.4th 788 (Banks) [factors for major
participant].) 2 Under Clark reckless indifference is “ ‘implicit in
knowingly engaging in criminal activities known to carry a grave
risk of death.’ ” (Clark, at p. 616.) It “encompasses a willingness
to kill (or to assist another in killing) to achieve a distinct aim,

2 It is unnecessary to decide whether appellant was a major
participant in the crime if the evidence of reckless indifference is
sufficient. (Clark, supra, 63 Cal.4th at p. 614.)

2
even if the defendant does not specifically desire that death as
the outcome of his actions.” (Id. at p. 617.) Recklessness has
both a subjective and an objective component. (Ibid.)
Subjectively, the defendant must consciously disregard risks
known to him. Objectively, recklessness is determined by “what
‘a law-abiding person would observe in the actor’s situation,’ ”
that is, whether defendant’s conduct “ ‘involved a gross deviation
from the standard of conduct that a law-abiding person in the
actor’s situation would observe.’ ” (Ibid.) Notably, the absence of
anything in the criminal “plan that one can point to that elevated
the risk to human life beyond those risks inherent in any armed
robbery” was a factor the Clark court analyzed in determining
whether reckless indifference had been shown. (Id. at p. 623.)
Clark sets forth the questions to be asked and answered in
determining whether a defendant acted with reckless
indifference: “Did the defendant use or know that a gun would be
used during the felony? How many weapons were ultimately
used? Was the defendant physically present at the crime? Did
he or she have the opportunity to restrain the crime or aid the
victim? What was the duration of the interaction between the
perpetrators of the felony and the victims? What was the
defendant’s knowledge of his or her confederate’s propensity for
violence or likelihood of using lethal force? What efforts did the
defendant make to minimize the risks of violence during the
felony?” (In re Scoggins (2020) 9 Cal.5th 667, 677 [summarizing
Clark factors].) Here the evidence does not come close to
satisfying the Clark rubric.

A. How many weapons were ultimately used?
Appellant’s brother, the actual shooter, had a weapon.
Appellant was unarmed that night. The evidence does not

3
establish that appellant supplied the gun, which weighs against
finding reckless indifference to human life. (See, e.g., In re Moore
(2021) 68 Cal.App.5th 434, 452 [although defendant knew that
accomplice had a gun, defendant did not supply it and did not use
one].) There is no evidence appellant knew his brother was
armed, or knew his brother intended to use a gun during the
robbery. But even assuming appellant knew in advance that his
brother was armed, under Clark that knowledge alone is
insufficient to establish reckless indifference to human life.
(Clark, supra, 63 Cal.4th at p. 618; People v. Ramirez (2021)
71 Cal.App.5th 970, 988 (Ramirez); People v. Bascomb (2020)
55 Cal.App.5th 1077, 1089 [use of gun to threaten and keep
victims at bay actively enabled the murder, exhibiting reckless
indifference].)

B. Was the defendant physically present at the crime?
Did he or she have the opportunity to restrain the
crime? What was the duration of the interaction
between the perpetrators of the felony and the victims?
The record shows appellant was playing pool with his
brother who decided to commit a robbery and asked appellant if
he wanted to go along with it. Appellant agreed because they
were getting high together and needed more money for more
drugs. They looked out the window and saw a fast food
restaurant across the street with a car in the drive-thru line.
They were known at the restaurant as they frequented it. They
walked across the street. Appellant and a third recruit were to
and did act as lookouts while appellant’s brother approached the
victim in the drive-thru line to rob him. Appellant was some
unknown distance from the victim as his brother approached the
car. He did not see the shooting; he heard the gunshot and

4
looked over to see the victim driving the car away from the
restaurant. They heard the car crash. The three confederates
followed the car to the crash site. That appellant did not see the
shooting (“[W]e was just standing by, watching out. So about a
couple of minutes went blowing by and we heard gunshots and
[the victim] pulled out of the drive—the drive-thru and made a
left, he made a hard right and crashed into the back of a church.”)
is consistent with acting as a lookout, focused on others who
might interfere with the robbery rather than participating in the
act of robbery itself.
Assuming this scenario constitutes sufficient presence at
the scene, presence nonetheless does not mandate a conclusion
that the defendant acted with reckless indifference. (See, e.g.,
Ramirez, supra, 71 Cal.App.5th at p. 989 [defendant who was
present when accomplice shot victim did not act with reckless
indifference].) The question is: what was the effect of his
presence at the scene. The limited facts here are three men set
out from a bar to commit a robbery. A third man and appellant
were lookouts while appellant’s brother approached the victim in
a drive-thru line. Something occurred between the two men and
appellant’s brother fired his gun. Appellant was some distance
away. It is unclear how much time passed during these events,
but according to the evidence considered by the trial court, it is
clear appellant was not with his brother and the victim at the
car. He was standing some distance away, not observing events
unfold since he heard, but did not see the shooting. The shooting
appeared to be a spontaneous reaction to victim resistance as
opposed to a planned part of the robbery. Given the apparent
spontaneity of the shooting and the fact that appellant did not
witness it, it appears appellant was not in a position to restrain

5
his brother, restrain the victim, or to otherwise intervene in how
his brother carried out the robbery itself. (See, e.g., In re
Scoggins, supra, 9 Cal.5th at p. 679 [quickness of shooting
suggested defendant lacked control over accomplice’s actions]; In
re Moore, supra, 68 Cal.App.5th at p. 452, [defendant was present
during robbery but not close enough to restrain shooter]; compare
Ramirez, at p. 989 [defendant lacked meaningful and realistic
opportunity to intervene when he and shooter were on opposite
sides of victim’s vehicle and attempted carjacking was quickly
executed], with In re Loza (2017) 10 Cal.App.5th 38, 51–53
[defendant who was in store where killing occurred had time to
observe and react before murder because he heard killer threaten
to shoot clerk and count to five before doing so] and In re Harper
(2022) 76 Cal.App.5th 450, 455, 457 [defendant heard pounding
and yelling coming from victim’s and accomplice’s location and
did nothing to intervene, after previously telling accomplice she
could do whatever she wanted as long as he was not involved].)

C. Did appellant have the opportunity to aid the victim?
Appellant did not aid the victim. Appellant testified that
after the victim’s car crashed, the three men ran over to the car
and appellant’s brother began to rifle through the victim’s
clothing looking for a wallet. He handed his gun to appellant
who held it (not pointing it) while his brother searched the victim
whom they believed to be dead. When the wallet was found, the
three men left the scene and split up the money.
Not offering aid to a victim elevates money over human life.
A defendant’s failure to aid a wounded victim shows reckless
indifference. (Clark, supra, 63 Cal.4th at p. 619; In re Parrish
(2020) 58 Cal.App.5th 539, 544 [reckless indifference shown by
failure to pause to aid or comfort victim]; People v. Douglas (2020)

6
56 Cal.App.5th 1, 10 [defendant displayed no interest in
moderating violence or in aiding his bloody and suffering victim
and instead picked his pocket].) However, when different
inferences may be drawn from the circumstances, a defendant’s
actions after a shooting may not be probative of his mental state.
(In re Scoggins, supra, 9 Cal.5th at p. 679.)
Additionally, even if appellant was callous in holding the
gun while his brother rifled through the victim’s clothing, Clark
demands a showing that appellant knowingly created a serious
risk of death; that is, appellant’s behavior after the victim was
shot, standing alone, is insufficient to show he acted with
reckless indifference to human life while participating in the
robbery. (See, e.g., In re Taylor (2018) 34 Cal.App.5th 543, 560.)
Even evidence that a defendant failed to aid the victim and
laughed with his accomplices soon after the shooting may be
insufficient to support a finding of reckless indifference to human
life, especially where the defendant was 16 years old. (In re
Moore, supra, 68 Cal.App.5th at p. 453.)
Here the undisputed evidence is that when asked what he
did to aid the victim, appellant said he did nothing because he
assumed the victim was dead. The People did not offer
admissible contrary evidence. In fact, the prosecutor present at
the parole board hearing stated he thought appellant was “being
very sincere with this Board—concerning his efforts to move
forward.” We have an 18-year-old who made an assumption and
acted accordingly. Failure to aid on this evidence, at worst, is
subject to different inferences. I cannot find that this after-the-
fact-of-the shooting conduct is enough to establish the requisite
mental state for the crime, especially when combined with
appellant’s youth.

7
 D. What efforts did the defendant make to minimize the
risks of violence during the felony?
There is no evidence one way or another about whether
appellant minimized the risks inherent in the robbery. That one
patron of the restaurant was targeted outside the building in a
drive-thru line instead of a targeted invasion of the restaurant
itself arguably is minimization, but whether that was in the mind
of appellant at the time is speculation. This factor is neutral.

E. What was the defendant’s knowledge of his or her
confederate’s propensity for violence or likelihood of
using lethal force?
Appellant and the shooter were brothers who belonged to
the same gang. There is no evidence about their respective roles
in the gang. Appellant said he committed robberies and an arson
(was present when others set a fire in the bed of a truck in an
empty parking). His rap sheet includes juvenile adjudications for
grand theft auto, taking a vehicle without the owner’s consent,
and one conviction for misdemeanor robbery. Although he
started to carry a gun at age 18 for protection, he never used it as
it was confiscated soon after he got it. He said he never pulled a
trigger in his life. There is no evidence he and his brother had
committed violent crimes together before this night. As gang
membership alone does not demonstrate a propensity to commit
lethal violence, I find this a neutral factor. (See Banks, supra,
61 Cal.4th at pp. 810–811; In re Miller (2017) 14 Cal.App.5th
960, 976 [although defendant and killer belonged to same gang
and had committed follow-home robberies together, no evidence
indicated they had ever participated in shootings, murder, or
attempted murder].)

8
 F. Age
Appellant was 18 years old when he agreed to participate
in the robbery with his older brother. The United States
Supreme Court has observed that the common byproducts of
youth are immaturity, impetuosity, and the failure to appreciate
risks and consequences, making it more likely that juveniles fail
to appreciate the risks and consequences of their actions. They
are more susceptible to peer pressure as well. (Miller v. Alabama
(2012) 567 U.S. 460, 471.) Although not a juvenile in the legal
sense of the word, appellant was as young as an “adult” can be
and age is an appropriate factor to consider along with the other
Clark factors. (In re Harper, supra, 76 Cal.App.5th at p. 470;
Ramirez, supra, 71 Cal.App.5th at p. 991; People v. Harris (2021)
60 Cal.App.5th 939, 960, review granted on another ground,
Apr. 28, 2021, S267802.)
Here the record shows appellant’s older brother suggested
the robbery to which appellant agreed. Appellant was homeless
on the night of the crime and was staying with his older brother.
The record also reflects appellant was raised in foster homes
after his PCP-addicted mother was taken to a psychiatric facility.
His mother physically beat him and his father, who owned a
business, left and started another family with another woman.
Appellant recalled stealing a roasted chicken when he was
10 years old because he was hungry. He was jumped into his
older brother’s gang at age 15. He viewed his brother as the
family member who cared about him, helped him deal with their
mother’s addiction, and gave him a place to stay when he was
homeless. Indeed, he joined the gang because of his brother.
Appellant’s age under these circumstances weighs against a
finding that he harbored reckless indifference to human life.

9
 At the parole board hearing, appellant told the
commissioners that as he sat in jail after his arrest, he reflected
on the shooting and “knew something like this was going to
happen because I was on the path of destruction.” To use that
statement to infer that the 18-year-old appellant appreciated the
full ramifications of his acts at the time of the robbery is a far
and unfair stretch.
Considering the totality of the Clark factors, I cannot find
the evidence sufficient to support the trial court’s finding of
reckless indifference. All we know is an unarmed 18-year-old
appellant agreed to participate in a robbery with his older
brother as a lookout. The shooting appeared spontaneous;
appellant only heard the shots and did not see the shooting. He
was unable to intervene in the rapidly unfolding events.
Assuming he stood lookout again when his brother searched the
victim’s clothing for money, he also assumed the victim had
already died when they came upon him in his crashed car. Under
Clark, I cannot say appellant’s actions before and after the
shooting and car crash are sufficient to establish the mental state
of reckless indifference to human life. I would reverse the denial
of the Penal Code 3 former section 1170.95 4 petition and direct the
trial court to vacate the murder conviction and resentence
appellant as called for by the statute.

3 Undesignated statutory references are to the Penal Code.
4 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text (Stats. 2022,
ch. 58, § 10).

10
II. Appellant’s Parole Board Testimony
The only evidence the People used to prove “reckless
indifference” were appellant’s own words when he answered the
parole board’s necessarily circumscribed questions about the
offense (for the commissioners told appellant “Nothing that
happens here today is going to change the court findings as we’re
not here to retry your case.”). Although I conclude the
statements were insufficient to support the finding, I also
conclude they never should have been used in the first place.
Here, appellant was an unwitting witness against himself for, of
course, he had no inkling he would later be entitled to a hearing
where his conviction and sentence could be vacated under former
section 1170.95, subd. (d).
I find appellant’s statements at the parole hearing
inadmissible under the judicially devised exclusionary remedy of
Coleman. Coleman held the People cannot use testimony given
by a defendant at a probation revocation hearing against the
defendant at a trial for the same underlying conduct. The
Coleman Court found it fundamentally unfair to compel a
defendant to choose between his right against self-incrimination
at trial and his right to present mitigating evidence by way of
testimony at a revocation hearing. Coleman sought to avoid the
“ ‘cruel trilemma’ of self-accusation, perjury or injurious silence.”
(Coleman, supra, 13 Cal.3d at p. 878.)
Here appellant has the right to present evidence at his
parole board hearing or suffer possibly injurious silence.
(§ 3041.5, subd. (a)(2).) Indeed, California encourages inmates to
participate fully in parole hearings so that parole commissioners
can make a fully informed decision about suitability for parole.
(In re Shaputis (2011) 53 Cal.4th 192, 218 [an inmate’s insight

11
into and remorse for the crime are critical factors in determining
suitability for parole].)
On the other hand, appellant also has legislatively granted
rights that govern former section 1170.95 evidentiary hearings to
determine whether a conviction can be sustained after
elimination of the former felony murder rule and natural and
probable cause doctrine as theories of liability. The Legislature
has decreed the rules of evidence apply, the right to counsel
attaches, the People bear the burden of proof, and that proof
must be beyond a reasonable doubt. Our Supreme Court has
similarly interpreted the legislation to accord these rights.
(People v. Gentile (2020) 10 Cal.5th 830; People v. Lewis (2021)
11 Cal.5th 952.) The evidentiary hearing, then, is analogous in
many respects to a bench retrial conducted on the record of the
initial trial or plea and on additional admissible evidence each
party may proffer. What appellant got, however, was a hearing
based solely on self-accusation.
In passing Senate Bill No. 1437, the Legislature extended
substantial constitutional rights by statute to eligible convicted
felons and set up an elaborate mechanism by which eligibility is
to be determined and convictions are to be re-proven, or, if not re-
proven, resentencing is to occur. It then later amended the
statute by enacting Senate Bill No. 775 (2021–2022 Reg. Sess.) to
clarify the unconditional nature of those rights. (Stats. 2021, ch.
551, § 2.) These statutes are not indicative of the Legislature’s
simple intent to bestow lenity upon convicted defendants. The
Legislature did not just change a monetary threshold separating
misdemeanors and felonies, reduce sentencing maximums for
particular types of crimes, make the imposition of mandatory
enhancements discretionary, or eliminate sentencing options

12
altogether. It effected a huge sea change in the way the taking or
attempted taking of a life is now prosecuted in California. And in
fashioning a remedy that retries eligible defendants with the
protections of the right to counsel, the right to proof beyond a
reasonable doubt, the right to be confronted only with evidence
admissible under the Evidence Code, and the right to stand pat
and insist that the People bear the burden of proof, the
Legislature did not just offer reclassification of a conviction.
Eligible convictions are not reclassified, but they are retried with
the option of new evidence presented by either party. As was
discussed, for example, in People v. Williams (2020)
57 Cal.App.5th 652, in the initial version of Senate Bill No. 1437,
the Legislature gave the courts “unfettered discretion” in
determining what evidence to receive in ruling on a petition
under former section 1170.95. (Id. at p. 661.) In the
amendments set forth in Senate Bill No. 775, the Legislature
expressly stated its intent that the Evidence Code govern the
conduct of proceedings. (Former § 1170.95, subd. (d)(3).)
This framework is indicative of the Legislature’s intent
that these evidentiary hearings be treated with the same
solemnity and under the same rules as was the initial trial (albeit
without a jury). Given the panoply of rights our Legislature has
granted convicted defendants who file petitions under former
section 1170.95, I would include in those rights the right against
self-incrimination, for it goes hand-in-hand with imposing the
burden of proof on the prosecution. (Coleman, supra, 13 Cal.3d at
p. 876 [“The heavy burden thus placed upon the prosecution in a
criminal trial to prove through its own investigation the guilt of
the defendant may be substantially lightened if the prosecution is
allowed to take advantage of the defendant’s testimony at a prior

13
probation revocation hearing.”]) I surmise the People may have
believed this as well because they did not call him to testify at the
hearing, using the transcript of his statements instead.
The use of parole board statements as proof against a
defendant at a former section 1170.95 evidentiary hearing
unquestionably lessens the People’s burden of proof. This
lessening is incompatible with the Legislature’s express
imposition of that burden on the People unvarnished by any
qualifications, exceptions, or conditions. Moreover, we have seen
how the Legislature acted quickly to amend Senate Bill No. 1437
to clarify its intent when courts limited or constricted provisions
of the bill.
More to the point, use of appellant’s statements is
fundamentally unfair, the only rationale upon which Coleman is
premised. The point of Coleman was to ensure that rights which
attach to different types of proceedings do not collide with each
other when they are exercised. To those who say, “Well, no one
forced appellant to make a statement to the parole
commissioners,” I respond, “No one forced Coleman to make a
statement at his probation revocation hearing.” Just as no one
forced the defendant in Simmons v. United States (1968)
390 U.S. 377 to file a suppression motion, yet the court held that
his testimony at the suppression hearing could not be used
against him at trial. Just as no one forced the defendant in
People v. Knight (2015) 239 Cal.App.4th 1 to file a Marsden
motion, yet the court held that permitting the People access to
defendant’s statements would impermissibly lighten their burden
of proof at trial. (See also People v. Dennis (1986) 177 Cal.App.3d
863 [use immunity applies to disclosures made in motion for new
trial on grounds of ineffective assistance because disclosures

14
could conceivably lighten the People’s burden of proof,
implicating defendant’s right against self-incrimination].)
Similarly, our Court in Coleman held the permitting defendants
to fully exercise two competing rights without prejudice to either
one is important enough to warrant a judicially devised remedy
for what would otherwise be unfair.
Put another way, there is no right if its exercise comes with
a price tag. Here appellant had a right to present mitigating
albeit incriminating evidence at the parole hearing and he had a
right against self-incrimination at an evidentiary hearing under
former section 1170.95. The exercise of those rights should not
collide.
I conclude Senate Bill No. 1437 and former section 1170.95
are more than just acts of lenity. They created evidentiary and
procedural rights and obligations that must not be abrogated.
The only way to remain true to the Legislature’s intent to carry
over, without prejudice, fundamental trial rights to evidentiary
hearings under former section 1170.95, subdivision (d) is to apply
Coleman’s judicially created remedy and exclude the parole board
testimony.
I find the trial court erroneously admitted the appellant’s
parole board testimony. The error is not harmless. (People v.
Watson (1956) 46 Cal.2d 818 [error is not harmless if it is
reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of error].) Here
appellant’s testimony was the only evidence considered by the
trial court in determining that appellant acted with reckless
disregard of human life. It is reasonably probable the result

15
would have been more favorable to him without this evidence.
The trial court’s order should be reversed.

STRATTON, P. J.

16