Filed 5/26/23 P. v. Lucas CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079563
v. (Super.Ct.No. ICR9720)
WILFRED CARL LUCAS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Anthony R. Villalobos,
Judge. Affirmed.
Kristen Owen, by appointment of the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Lynne G. McGinnis and
Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
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I. INTRODUCTION
Defendant and appellant Wilfred Carl Lucas participated in a home-invasion
robbery that resulted in the death of one of defendant’s coparticipants, as well as the
death of an occupant of the home. In 1986, defendant was convicted of multiple offenses
arising from this incident, including first degree murder (Pen. Code, § 187, subd. (a)).1
In 2019, he filed a petition for resentencing pursuant to section 1172.6.2 The trial court
denied the petition, relying, in part, on defendant’s sworn parole hearing testimony to
conclude that defendant was a major participant who acted with reckless indifference to
human life in the commission of a felony.
On appeal, defendant does not contest the sufficiency of the evidence to support
the trial court’s findings. Instead, he contends that the trial court erred by relying on his
parole hearing testimony because the testimony was: (1) inadmissible as unreliable
hearsay; (2) inadmissible as an involuntary statement obtained in violation of his due
process rights; and (3) subject to the use immunity doctrine. We disagree with each of
these contentions and affirm the trial court’s order.
II. FACTS & PROCEDURAL HISTORY
In 1986, defendant was convicted by a jury of first degree murder (§ 187,
subd. (a)); first degree burglary (§ 459); and two counts of attempted robbery (§§ 664,
1 Undesignated statutory references are to the Penal Code.
2 At the time, the statutory provision was numbered 1170.95, but it was
subsequently renumbered section 1172.6 without substantive change. (Stats. 2022,
ch. 58, § 10.)
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211). The jury also found true allegations that: defendant was a principal in the
commission of a felony in which another principal used a gun (§ 12022, subd. (a));
defendant admitted suffering a prior serious felony conviction (§ 667); and defendant
further admitted serving three prior prison terms (former § 667.5, subd. (b)). As a result,
defendant was sentenced to an aggregate term of 34 years to life in state prison.
In 2019, defendant filed a petition for resentencing pursuant to section 1172.6.
The trial court issued an order to show cause on the petition and held an evidentiary
hearing pursuant to section 1172.6, subdivision (d)(3), on August 5, 2022. At the
hearing, the People submitted the following evidence for the trial court’s consideration:
(1) the unpublished opinion from defendant’s direct appeal; (2) the reporter’s transcript of
defendant’s trial; (3) the clerk’s transcript from defendant’s trial; (4) the transcript of
defendant’s testimony at a parole hearing held in January 2015; and (5) the transcript of a
taped police interview of defendant conducted at the time of his arrest for the underlying
offenses.
At the conclusion of the hearing, the trial court denied defendant’s petition. In a
written order, the trial court found that the admissible evidence presented at the hearing
established beyond a reasonable doubt that defendant was a major participant who acted
with reckless indifference to human life during the commission of the robbery, resulting
in defendant’s ineligibility for resentencing. The trial court explained that it relied upon
the transcripts of defendant’s trial and the transcript of defendant’s testimony during his
2015 parole hearing in making its findings. Specifically, the trial court noted that, at the
time of defendant’s parole hearing, defendant admitted that he: planned the robbery;
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identified the victim as the potential target of his planned robbery; stole a firearm for the
specific purpose of using it to commit the robbery; chose his coparticipant in the robbery
precisely because he believed his coparticipant was “the most craziest” who “would do”
something “crazy that I couldn’t do myself”; was present during the robbery; and that he
witnessed the victim “going down,” realized that he “couldn’t save him,” so he “turned
and . . . left and . . . ran away.”
III. DISCUSSION
On appeal, defendant argues the trial court erred in denying his petition for
resentencing because it relied on his parole hearing testimony, which should have been
considered inadmissible. Specifically, defendant contends that his parole hearing
testimony constituted: (1) unreliable hearsay, (2) an involuntary statement obtained in
violation of his due process rights, and (3) a coerced statement subject to the use
immunity doctrine. As we explain, defendant’s parole hearing testimony was admissible
under the party admission exception set forth in Evidence Code section 1220.
Additionally, we conclude that defendant has forfeited his claim that the parole hearing
testimony constituted an involuntary or coerced statement and that, even in the absence of
forfeiture, the record is insufficient for us to reach that conclusion on the merits.
A. General Legal Principles and Standard of Review
“Our Legislature enacted what is now section 1172.6 and simultaneously amended
sections 188 and 189 in order to eliminate criminal liability for murder, attempted
murder, and manslaughter absent a showing of the defendant’s personal intent. . . . Now,
a conviction for these crimes requires proof that the defendant (1) was the actual killer
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. . . , (2) directly aided and abetted the actual killer while acting with the intent to kill, or
(3) was a major participant in a felony who acted with reckless indifference to the value
of human life.” (People v. Duran (2022) 84 Cal.App.5th 920, 927 (Duran).)
“[S]ection 1172.6 is the statutory mechanism for determining whether to
retroactively vacate a final murder . . . conviction that does not comply with the new,
narrower definitions.” (Duran, supra, 84 Cal.App.5th at p. 927.) “A defendant seeking
relief under section 1172.6 must ‘file a petition’ alleging entitlement to relief along with
‘[a] declaration’ attesting to eligibility for relief. [Citation.] If the defendant ‘makes a
prima facie showing’ of entitlement to relief . . . , then the court must in most cases
convene an evidentiary hearing where the People bear the burden of establishing beyond
a reasonable doubt that the defendant is guilty of the pertinent crime under the new,
narrower definitions.” (Duran, at p. 927.)
“ ‘The admission of evidence in the hearing shall be governed by the Evidence
Code, except that the court may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed. . . . The prosecutor and petitioner
may also offer new or additional evidence to meet their respective burdens.’ ” (People v.
Patton (2023) 89 Cal.App.5th 649, 656; Duran, supra, 84 Cal.App.5th at p. 927.)
“On appeal, ‘an appellate court applies the abuse of discretion standard of review
to any ruling by a trial court on the admissibility of evidence, including one that turns on
the hearsay nature of the evidence in question.’ ” (People v. Hovarter (2008) 44 Cal.4th
983, 1007-1008.) However, “ ‘[t]he abuse of discretion standard is not a unified
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standard; the deference it calls for varies according to the aspect of a trial court’s ruling
under review. The trial court’s findings of fact are reviewed for substantial evidence, its
conclusions of law are reviewed de novo, and its application of the law to the facts is
reversible only if arbitrary and capricious.’ ” (People v. Thai (2023)___Cal.App.5th___
(Apr. 11, 2023, G060963) [2023 Cal.App. Lexis 274, *8]; People v. Dekraai (2016)
5 Cal.App.5th 1110, 1140; Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-
712.) In this case, the aspect of the trial court’s ruling challenged on appeal raises only
issues of law subject to our independent review. (People v. Grimes (2016) 1 Cal.5th 698,
711-712 [The question of whether the trial court correctly construed a provision of the
Evidence Code in admitting hearsay evidence is subject to our independent review.];
Duran, supra, 84 Cal.App.5th at p. 928 [“Whether use immunity exists and whether a
statement is involuntary within the meaning of due process are questions of law we
review de novo.”].)
B. The Parole Hearing Testimony Was Admissible as a Party Admission
We first address defendant’s claim that his parole hearing statement should have
been considered inadmissible hearsay because it was untrustworthy. On appeal,
defendant concedes that his parole hearing statement “would technically fall under
Evidence Code section 1220 as a ‘party admission,’ ” but argues that the trial court
should nevertheless have held such evidence inadmissible because it was inherently
untrustworthy. In doing so, defendant essentially argues that a finding of trustworthiness
is a foundational element necessary to admit evidence under Evidence Code section
1220. We decline to adopt this view.
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“Hearsay is an out-of-court statement offered for the truth of the matter asserted
and is generally inadmissible. [Citation.] But there are a number of exceptions to this
rule. One, the party-admission exception codified in Evidence Code section 1220, covers
‘[e]vidence of a statement . . . when offered against the declarant in an action to which he
is a party . . . .’ ” (People v. Flinner (2020) 10 Cal.5th 686, 735.) “While ‘sometimes
referred to as the exception for admissions of a party,’ Evidence Code section 1220
‘covers all statements of a party, whether or not they might otherwise be characterized as
admissions.’ ” (People v. Gonzalez (2021) 12 Cal.5th 367, 409 (Gonzalez).)
Nothing in the text of Evidence Code section 1220 suggests that a party admission
must first be determined trustworthy as a foundational requirement for admission as
evidence.3 (Evid. Code, § 1220.) In fact, it is generally understood that “the only
preliminary fact that is subject to dispute is the identity of the declarant,” and “an
admission is admissible upon the introduction of evidence sufficient to sustain a finding
that the party made the statement.” (Law Rev. Comm. Comments, Evid. Code, § 403
(1965) Deering’s Ann. Evid. Code (2004 ed.) p. 177; see Assem. Com. on Judiciary
com., reprinted at 29B pt. 1B West’s Ann. Evid. Code (2011) foll. § 403, p. 20.) In
accordance with this understanding, the California Supreme Court has repeatedly applied
Evidence Code section 1220 without including a finding of trustworthiness as a
3 In full, the provision reads: “Evidence of a statement is not made inadmissible
by the hearsay rule when offered against the declarant in an action to which he is a party
in either his individual or representative capacity, regardless of whether the statement
was made in his individual or representative capacity.” (Evid. Code, § 1220.)
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foundational requirement. (People v. Carpenter (1999) 21 Cal.4th 1016, 1049
[concluding party admission was admissible upon a showing that “defendant was the
declarant, the statements were offered against him, and he was a party to the action”];
Gonzalez, supra, 12 Cal.5th at p. 409 [same]; People v. Horning (2004) 34 Cal.4th 871,
898 [same]; People v. Rodriguez (2014) 58 Cal.4th 587, 637 [same]; People v. Kraft
(2000) 23 Cal.4th 978, 1035 [rejecting contention that admission of writing pursuant to
Evidence Code 1220 is subject to a “heightened reliability requiremen[t]”].)
Defendant has not cited to any authority for the proposition that trustworthiness is
a foundational requirement for admission of hearsay testimony under Evidence Code
section 1220. Instead, he cites to numerous cases dealing with different statutory
exceptions to the hearsay rule but has not offered a persuasive reason why the
foundational requirements applicable to other statutory hearsay exceptions should be
extended to the party admission exception. Given the long, unbroken line of California
Supreme Court authority applying the party admission exception without such a
requirement, we decline to read an additional foundational requirement into the statute.
We agree with defendant that courts should not turn a blind eye to the potential
motives of a criminal defendant when providing a parole hearing statement.
Nevertheless, in our view, these matters are more relevant to the trial court’s
determination of the weight and credibility to be given to a parole hearing statement and
not to its admissibility. “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. . . . No reason exists to preempt trial judges’
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particularized evaluation with our own blanket rule of exclusion.” (People v. Mitchell
(2022) 81 Cal.App.5th 575, 590.) Thus, a defendant remains free to argue that his parole
hearing statement should be treated with skepticism or entirely disregarded as
untrustworthy. However, we decline to read a trustworthiness requirement as a
foundational element necessary to the admissibility of such evidence.
C. Defendant Has Forfeited His Claim that the Parole Hearing Testimony Was
Involuntary and the Record Is Inadequate To Support the Claim Even Absent Forfeiture
Defendant also argues that his parole hearing statement should be considered
inadmissible because it was an involuntary statement or, alternatively, a coerced
statement subject to the use immunity doctrine. “ ‘The use of coerced confessions,
whether true or false, is forbidden because the method used to extract them offends
constitutional principles. . . . An involuntary confession is inadmissible for any purpose
. . . .” (People v. Jimenez (2021) 73 Cal.App.5th 862, 875-876; People v. Sanchez (2019)
7 Cal.5th 14, 50 [“ ‘ “[A]n involuntary confession may not be introduced into evidence at
trial.” ’ ”].) A closely related doctrine is that of use immunity, which is “‘immunity from
the use of compelled testimony, as well as evidence derived directly and indirectly
therefrom,” which is intended to overcome any claim that compelled testimony violates a
witness’s Fifth Amendment rights. (People v. Cooke (1993) 16 Cal.App.4th 1361, 1366.)
We conclude that defendant’s argument has been forfeited for failure to raise the issue
below and further concluded that, even in the absence of forfeiture, the record is
insufficient to support the claim on the merits.
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1. Forfeiture
“A defendant may not challenge the admissibility of evidence on appeal if he or
she failed to raise a proper objection on those grounds in the trial court.” (People v.
Myles (2021) 69 Cal.App.5th 688, 696 (Myles) [to preserve claim of error based upon
inadmissibility of evidence, objection to evidence in trial court must be on same grounds
raised on appeal]; Evid. Code, § 353, subd. (a).) Indeed, our Supreme Court has
repeatedly held that the failure to object to the introduction of a statement on the ground
that the statement was involuntary is subject to forfeiture. (People v. Tully (2012)
54 Cal.4th 952, 992 [defendant forfeited claim that statements were involuntary by failing
to object]; People v. Williams (2010) 49 Cal.4th 405, 435 [“A defendant ordinarily
forfeits elements of a voluntariness claim that were not raised below.”].)
Here, as the People correctly note, the record does not suggest that defendant ever
objected to the admission of his parole hearing testimony on the basis that the testimony
was coerced or involuntary. Having failed to do so, he cannot now claim on appeal that
the trial court should have excluded the evidence on this ground or otherwise applied the
use immunity doctrine to this evidence. Indeed, his failure to object on this ground
deprived the People of the opportunity to develop the record on this point and deprived
the trial court of the ability to make necessary findings related to involuntariness. (See
Tully, supra, 54 Cal.4th at p. 992 [forfeiture appropriate because “trial counsel never
mustered evidence in support of an involuntariness claim and the trial court was never
asked to undertake a voluntariness analysis”].)
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In his reply brief, defendant essentially concedes that involuntariness was not an
objection raised in the trial court proceeding but argues that we should not deem the issue
forfeited because the failure to object constituted ineffective assistance of counsel.
However, an appellant “cannot automatically obtain merit review of a noncognizable
issue by talismanically asserting ineffective assistance of counsel.” (People v. Riel
(2000) 22 Cal.4th 1153, 1202.) Instead, to obtain reversal based on ineffective assistance
of counsel on direct appeal, the record must affirmatively show that counsel had no
rational tactical purpose for an action or omission. (People v. Mickel (2016) 2 Cal.5th
181, 198; People v. Anderson (2001) 25 Cal.4th 543, 569.)
The record in this case is simply inadequate to make such a showing. As the
People correctly point out, “parole cannot be conditioned on admission of guilt to a
certain version of the crime.” (Myles, supra, 69 Cal.App.5th at p. 706; § 5011, subd. (b);
Cal. Code Regs., tit. 15, § 2236.) Thus, we cannot presume that a defendant’s parole
statement was involuntary and, if the statement was voluntarily given, that fact would
constitute a rational basis for trial counsel to decline to pursue the objection. When faced
with a silent record on direct appeal, we cannot conclude that trial counsel had no rational
purpose for the failure to object on this ground and must instead conclude that the issue
was forfeited.
2. The Record Does Not Support Defendant’s Argument Even Absent Forfeiture
Finally, even in the absence of forfeiture, we would conclude that the record
before us is not sufficient to conclude that defendant’s parole hearing statement was
involuntary or should have been subject to a grant of use immunity.
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In Myles, supra, 69 Cal.App.5th 688, our colleagues in the First District Court of
Appeal considered and rejected the claim that parole hearing testimony should be
considered per se involuntary or that a defendant is entitled to use immunity for such
testimony. In doing so, it reasoned that parole hearing testimony cannot be considered
coerced or involuntary per se because a defendant is “not compelled to file a [section
1172.6] petition, nor testify at [a] parole hearing, nor . . . participate in [a] risk assessment
interview” and, “[h]aving chosen to be truthful in the assessment interview and testify
truthfully at the parole hearing, it is not fundamentally unfair to admit that information
during a resentencing proceeding voluntarily initiated by defendant bearing on some of
the same issues.” (Myles, at p. 706.) The Court of Appeal further explained that the use
immunity doctrine does not apply because admission of such evidence at a hearing under
section 1172.6 does not implicate a defendant’s Fifth Amendment rights, since a sentence
modification proceeding under the statute is an act of lenity and not a criminal trial.
(Myles, at p. 706.)
As defendant concedes, numerous published decisions by the Courts of Appeal
have endorsed the conclusion reached in Myles. (People v. Duran, supra, 84 Cal.App.5th
at pp. 928-932; People v. Mitchell (2022) 81 Cal.App.5th 575, 588-590; People v.
Anderson (2022) 78 Cal.App.5th 81, 88-93.) Defendant has not directed our attention to
any published decision that has reached a contrary conclusion. Thus, the weight of
authority clearly holds that the mere fact that defendant’s sworn statement was given in
the context of a parole hearing does not establish that the statement was involuntary or
subject to use immunity.
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We recognize the fact that a defendant may face various pressures or competing
incentives at a parole hearing. Thus, there may be case-specific circumstances that
warrant a closer review to determine if such incentives rise to the level of coercion
rendering parole hearing testimony involuntary. A trial court hearing a section 1172.6
petition can consider any case-specific circumstances regarding the reliability of the
testimony given at a parole hearing and what weight to give to it. In any event, defendant
has not argued that any case-specific facts warrant such a conclusion here. Instead, he
urges us to reject all of the published authority on this issue in order to hold that the mere
fact his sworn statement was given in the context of a parole hearing should justify a
finding that it was involuntary. We decline to do so and instead conclude that, on this
record, defendant has not shown that his parole hearing testimony was involuntary or
coerced, such that it should have been excluded as inadmissible at the time of the
evidentiary hearing on his section 1172.6 petition. Given this conclusion, defendant has
failed to show error warranting reversal, and we have no occasion to consider the issue of
prejudice.
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IV. DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
CODRINGTON
Acting P. J.
RAPHAEL
J.
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