People v. Brownlee CA5

Filed 6/2/23 P. v. Brownlee CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT

THE PEOPLE,
F084911
Plaintiff and Respondent,
(Fresno Super. Ct. No. CF80257140)
v.

TERRENCE BROWNLEE, OPINION
Defendant and Appellant.

THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Alvin M. Harrell
III, Judge.
Jeffrey S. Kross, 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, Michael A. Canzoneri, Erin R.
Doering, and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

* Before Poochigian, Acting P. J., Franson, J. and Meehan, J.
 INTRODUCTION
In 1980, appellant and defendant Terrence Brownlee1 (appellant) pleaded guilty to
count 1, second degree murder (Pen. Code, § 187, subd. (a)),2 and count 2, robbery
(§ 211), and admitted enhancements that he personally used a firearm, a handgun, in the
commission of both offenses (§ 12022.7). He was sentenced to 15 years to life for
murder plus a consecutive term of two years for the attached firearm enhancement.
In 2019, after statutory amendments enacted by Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437) became effective, appellant filed a petition with the trial
court for resentencing pursuant to former section 1170.95. The court denied the motion.
On appeal, appellant’s counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d
436 (Wende). In 2020, this court affirmed the denial of his petition. (People v. Terrence
Brownlee (Jan. 23, 2020, F079638) [nonpub. opn.].)
In 2022, appellant filed a second petition for resentencing in the trial court, and
argued he stated a prima facie case for relief because of changes in the law and
amendments to former section 1170.95 that became effective on January 1, 2022. The
court denied the motion and again held he was ineligible as a matter of law, based on this
court’s opinion that affirmed the denial of his first petition.
In this appeal, appellant argues his second petition for resentencing was not barred
by the prior adverse rulings on his first petition by the trial court and this court, and his
second petition stated a prima facie case for resentencing based on the changes in the law
after his first petition was denied.
We find appellant was permitted to file a second petition for resentencing as a
result of statutory amendments to former section 1170.95, now renumbered as
section 1172.6, and changes in case law interpreting the statute. Based on those changes,

1 There are various spellings of appellant’s first name throughout the record.
Documents filed by appellant, in pro. per., show his name is spelled “Terrence.” We will
do the same.
2 All further statutory citations are to the Penal Code unless otherwise indicated.

2.
the trial court erroneously relied on hearsay statements in the probation report when it
denied his first and second petitions.
This court ordered supplemental briefing from the parties as to whether we could
review our own records filed by appellant his prior cases, which included certified
transcripts from parole board hearings where he admitted being the actual killer. Both
parties have agreed this court may do so. As a result, we find the trial court’s error was
not prejudicial and affirm the denial of his second petition, based on appellant’s sworn
admissions at parole board hearings that he was the actual killer.3
FACTUAL SUMMARY4
“During the late evening hours of April 7, 1980, [appellant Brownlee and
codefendants] Timothy Taylor, Richard Byrd, and Darrell Green were driving around
Fresno in Timothy Taylor’s 1963 Chevrolet. When these individuals were driving
around[,] a discussion was held regarding the commission of a robbery to obtain some
money. Darrell Green was armed with a .22 caliber sawed-off rifle and Byrd was in
possession of a .357 magnum handgun.

3 Appellant filed his petition in 2022 under former section 1170.95, which had
been substantively amended effective January 1, 2022. It was then renumbered as
section 1172.6 without further substantive changes, effective June 30, 2022. (People v.
Saibu (2022) 81 Cal.App.5th 709, 715, fn. 3; Stats. 2022, ch. 58 (Assem. Bill. 200), § 10,
eff. June 30, 2022.)
4 The factual summary is from this court’s nonpublished opinion that affirmed the
denial of appellant’s first petition in People v. Brownlee, supra, F079638. Since there
was never a trial in this case, this court’s opinion stated it was quoting the factual
summary contained in the probation report that was filed in 1980, in anticipation of
appellant’s sentencing hearing after his plea. The probation report stated that its factual
summary was “taken from the transcript of the preliminary examination held on June 11,
12, and 13, 1980 in Department One of the Fresno County Municipal Court under
Municipal Court Case No. F45490.”
We are citing this factual summary for the limited purpose of providing context to
the prior rulings on appellant’s petitions and the parties’ arguments. As will be explained
below, we are not relying on hearsay statements to resolve the prima facie issue as to
whether appellant was ineligible for relief under section 1172.6 prior to issuing an order
to show cause (OSC).
3.
 “At one point, Taylor began having car trouble and the vehicle was stopped near a
restaurant on North Parkway Drive. After all four individuals had exited the vehicle,
Timothy Taylor suggested that they rob Motel Fresno. They proceeded to that location,
but observed too many people near the office area.
“They then walked next door to the Fremor Motel. While walking through the
motel, Taylor looked into the window of Room 46 and observed three individuals. These
were later identified as Linus Fields, Garold Parker, and Shirley Brown. Taylor then
relayed this information to Green, [appellant Brownlee], and Byrd. Taylor also obtained a
.357 magnum, which was in Byrd’s possession.
“Either Taylor or [appellant Brownlee] knocked on the door and when Shirley
Brown answered the door, they forced their way in. Entering the room, Taylor and Byrd
tied up Fields and Parker. During the preliminary examination, Linus Fields testified that
one of the individuals held a gun to Parker’s head and a second individual struck him
over the head with what he believed to be a bottle.
“[Appellant Brownlee], who had obtained the .357 magnum handgun from Taylor,
then approached Shirley Brown. [Appellant Brownlee] demanded money from her, but
she replied she had none. [Appellant Brownlee] ordered Brown to ‘suck his dick’ and
when she refused, [appellant Brownlee] struck her numerous times in the face with his
fist. Brown was then gagged with a T-shirt.
“While [appellant Brownlee] was assaulting Shirley Brown, Green and Byrd were
searching for money. Between eight and ten dollars was removed from the dresser in the
motel room.
“As all four individuals prepared to leave the room, [appellant Brownlee]
approached Shirley Brown, who was tied and gagged, and seated in a chair, put the
handgun up to her face, and fired one shot. The four individuals then fled the motel.

4.
 “An officer responding to the scene observed an individual believed to be Darrell
Green running through Roeding Park. Green dropped the .22 caliber sawed-off rifle
which was later recovered by officers.
“Upon arrival at the scene of the shooting, officers found a receipt for the purchase
of a camera. Printed on the receipt was the name Tim Taylor and an address .…
“Officers proceeded to that location and arrested Tim Taylor and Richard Byrd.
Later that same day, officers arrested Darrell Green and [appellant Brownlee]. All four
individuals were booked into the Fresno County Jail and charged with Murder and
Robbery.
“A subsequent autopsy revealed that Shirley Brown had died of shock and
hemorrhaging due to a gunshot wound to the head. Dr. Thomas Nelson further testified
that Brown had numerous facial injuries and bruises on her upper arms, neck, head and
legs. Dr. Nelson testified the injuries to her face were probably from a fist, however, the
injuries on the scalp were caused by a hard object.
“Additionally, it was noted that the victim’s blood/alcohol level was .26 percent.
“Further, blood tests taken from [appellant] Terrence Brownlee, Richard Byrd, and
Timothy Taylor were negative as to the presence of drugs.”
PROCEDURAL BACKGROUND5
The Charges
On or about April 30, 1980, a first amended criminal complaint was filed in the
Municipal Court of Fresno County jointly charging appellant Brownlee and codefendants

5 During the pendency of this appeal, this court advised the parties that it was
considering taking judicial notice of the records in appellant’s prior appeals and petitions
and invited supplemental briefing on that matter. Both parties agreed that this court may
take judicial notice of our own records.
On good cause appearing, we take judicial notice of this court’s own records and
nonpublished opinions in People v. Brownlee (May 1, 2008, F053324) [nonpub. opn.],
People v. Brownlee (Nov. 18, 2015, F069282) [nonpub. opn.], In re Terrence Brownlee
(June 16, 2020, F077663) [nonpub. opn.]; People v. Brownlee (Jan. 23, 2020, F079638)
5.
Byrd, Taylor, and Green with count 1, first degree premeditated murder of Brown
(§ 187). As to count 1, two special circumstances were further alleged as to appellant and
the codefendants, that the murder was willful, deliberate, and premeditated, and
(1) personally committed during the commission or attempted commission of a robbery
(§ 211); and (2) personally committed during the commission or attempted commission
of a rape (§ 261, subds. (2) & (3)).
Appellant and the codefendants were also charged with count 2, rape by force or
violence committed while acting in concert (§ 261, subds. (2) & (3)); and count 3,
robbery (§ 211).
On or about June 13, 1980, after the conclusion of a joint preliminary hearing, the
court held appellant and the codefendants to answer on the three counts, special
circumstances, and firearm allegations.
On July 3, 1980, an information was filed in the Superior Court of Fresno County
charging appellant Brownlee and codefendants Taylor, Byrd, and Green with count 1,
murder, with enhancements that each defendant personally used a firearm, a handgun, in
the commission of the offense (§ 12022.5); and count 2, robbery (§ 211), with
enhancements that appellant Brownlee and defendants Byrd and Taylor personally used a
firearm, a handgun; and defendant Green personally used a firearm, a rifle, in the
commission of the offense.6
Codefendants’ Robbery Pleas
According to appellant’s probation report, on July 2, 1980, codefendants Taylor,
Byrd, and Green pleaded guilty to robbery (§ 211) and admitted using a firearm during
the commission of the offense (§ 12022.5).

[nonpub. opn.]; People v. Brownlee (Aug. 9, 2021, F080760) [nonpub. opn.]; and In re
Terrence Brownlee (F083164, Nov. 14, 2021), petition for writ of habeas corpus filed on
August 10, 2021. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)
6 The special circumstances attached to the murder count and the separate rape
charge were not alleged in the information as to any of the defendants.
6.
Appellant Brownlee’s Plea
On July 7, 1980, appellant Brownlee appeared before Judge Caeton for his
scheduled arraignment and to enter a plea. The reporter’s transcript no longer exists for
the plea hearing. The minute order states that appellant was advised of and waived his
constitutional rights. The court found appellant gave a knowing and intelligent waiver of
his rights, and there was a factual basis for his pleas and admissions.
Appellant pleaded guilty to count 1, second degree murder, and count 2, robbery,
and admitted the enhancements that he personally used a firearm during the commission
of both offenses. The court referred the matter to the probation department.
The Probation Report
On July 24, 1980, the probation report was filed with the superior court in
anticipation of appellant’s sentencing hearing. The report contained a factual statement
about the murder and robbery that was summarized from the transcript of the preliminary
hearing and relied on that summary to list aggravating and mitigating circumstances.
Appellant’s Sentencing Hearing
On August 4, 1980, Judge Caeton conducted the sentencing hearing. Appellant
was present with his attorney, Robert Kirstie.7
The court stated it had read and considered the probation report and asked if there
were any corrections. Defense counsel stated there were not.
The court stated that according to the probation report, appellant claimed there
were mitigating circumstances because he was allegedly under the influence of alcohol
and drugs at the time of the crimes. The court found aggravating circumstances that the
offense involved a high degree of cruelty, viciousness, and callousness; and the robbery
had been completed and the murder “was a separate venture on the part of the [appellant]

7 The reporter’s transcript for the sentencing hearing is part of the instant appellate
record.
7.
to shoot this victim, who the Court finds was particularly vulnerable and that she was
outnumbered and weapons were used.”
The court also stated the victim was tied up and gagged at the time of the murder.
Defense counsel said the victim was gagged but not tied up. The court found the offense
involved some prior planning, appellant was on parole from the California Youth
Authority at the time, and he had prior juvenile petitions for robbery by force or fear,
grand theft auto, petty theft, and burglary.
The court stated appellant was ineligible for probation, and the aggravating
circumstances outweighed the mitigating circumstances. As to count 1, second degree
murder, appellant was sentenced to 15 years to life, with a consecutive term of two years
for the attached personal use enhancement. As to count 2, robbery, the court imposed the
upper term of five years, plus two years for the personal use enhancement, and stayed the
entirety of the sentence.8

8 On or about August 26, 1980, the abstract of judgment and minute order were
filed that stated on July 7, 1980, appellant pleaded guilty; and that on August 4, 1980, he
was sentenced to the term prescribed by law for murder, which was 15 years to life.
Neither document referred to the attached personal use enhancement.
On March 15, 2013, an amended minute order was filed that correctly stated
appellant was sentenced to 15 years to life plus two years on count 1, and the sentence
imposed for count 2 was stayed. An amended abstract of judgment was also filed, but it
erroneously stated that as to count 1, appellant was sentenced to both 15 years to life and
life without the possibility of parole. (People v. Brownlee, supra, F069282.)
In People v. Brownlee, supra, F069282, this court ordered the trial court to correct
the clerical error in the amended abstract of judgment about appellant’s sentence for
murder.
On February 4, 2016, a corrected abstract of judgment was filed consistent with
the reporter’s transcript from the August 4, 1980, sentencing hearing, that appellant was
sentenced to 15 years to life for murder, with a consecutive term of two years for the
personal use enhancement, and the sentence imposed for count 2 and the attached firearm
enhancement were stayed.
8.
 APPELLANT’S PRIOR WRITS AND APPEALS
Challenges to Validity of His Plea
On October 17, 1980, appellant filed a notice of appeal from his plea and sentence;
it was rejected as untimely.
On December 15, 1983, the trial court denied appellant’s petition for writ of
habeas corpus that alleged his plea was coerced. “The court has reviewed the file herein,
including the reporter’s notes of the change of plea hearing. There is no evidence
contained therein to support any of defendant’s allegations.” (Italics added.)
On December 23, 2003, the trial court denied appellant’s second habeas petition
that again challenged his plea. (People v. Brownlee, supra, F053324.) This court and the
California Supreme Court denied appellant’s subsequent habeas petitions that raised
similar issues. (Ibid.)
Additional Challenges Based on the Record of His Plea
On May 30, 2007, the trial court denied appellant’s petition for a writ of error
coram nobis, where he alleged the records of his 1980 plea and sentencing hearings were
destroyed in bad faith, his plea was not taken in open court, his plea bargain was
allegedly for a determinate term of 15 years, and he should be released.9 (People v.
Brownlee, supra, F053324.)
On May 1, 2008, this court affirmed the denial of appellant’s petition for writ of
error coram nobis that claimed he was only sentenced to a determinate term of 15 years.
The exhibits filed in support of the petition included a letter dated June 9, 2000, from
Robert Kirstie, who represented appellant at the 1980 plea hearing. Mr. Kirstie
responded to an inquiry from appellant and wrote: “I did not tell you the sentence was
15 years. Neither did the judge. I did not tell you that you would be released in 12 years.

9 The reporter’s transcript for his sentencing hearing has not been destroyed and is
part of the instant record.
9.
[¶] I very carefully explained the case and the law to you. At the time you entered your
plea you understood what you were doing.” (People v. Brownlee, supra, F053324.)
Denial of Petition for Youth Offender Parole Hearing
In In re Brownlee (2020) 50 Cal.App.5th 720, this court denied appellant’s
petition for a youth offender parole hearing, finding that while he was 19 years old at the
time he committed the offenses in 1980, he was not entitled to relief because he already
had parole hearings in 1990 and 2000, another parole hearing was scheduled for 2020,
and the Board of Parole Hearings was statutorily required to apply certain criteria
regarding the diminished culpability of juveniles at his next hearing. (Id. at pp. 722–723,
726.)
APPELLANT’S FIRST PETITION FOR RESENTENCING
On January 7, 2019, appellant filed, in pro. per., a petition in the trial court for
resentencing of his murder conviction pursuant to former section 1170.95 and requested
appointment of counsel.
Appellant filed a supporting declaration that consisted of a preprinted form where
he checked boxes that stated he was eligible for resentencing because (1) a complaint,
information, or indictment was filed against him that allowed the prosecution to proceed
under a theory of felony murder or murder under the natural and probable consequences
doctrine; and (2) at trial, he was convicted of first or second degree murder under the
felony murder rule or the natural and probable consequences doctrine, or (3) he pleaded
guilty or no contest to first or second degree murder in lieu of going to trial because I
believed I could have been convicted of first or second degree murder at trial pursuant to
the felony murder rule or the natural and probable consequences doctrine; and (4) he
could not presently be convicted of first or second degree murder because of changes
made to section 188 and 189, effective January 1, 2019.

10.
The People’s Opposition
The People filed opposition and argued appellant failed to make a prima facie case
for resentencing, citing both the hearsay summary of facts in the probation report and the
trial court’s statements at the sentencing hearing, that appellant was the actual killer who
fatally shot the victim.
The Court’s Summary Denial of the First Petition
On June 20, 2019, Judge Alvin M. Harrell III filed an order that summarily denied
appellant’s petition, without appointing counsel or conducting a hearing. The court held
appellant failed to a make a prima facie showing and was ineligible for resentencing
because he “was not an accomplice convicted under the natural and probable
consequences doctrine and he was not convicted of second degree felony murder. [He]
was the actual killer.”
This Court’s Opinion
Appellant filed a notice of appeal from the denial of his petition (People v.
Brownlee, supra, F079638), and his appointed counsel filed a brief pursuant to Wende
(1979) 25 Cal.3d 436.
On January 23, 2020, this court filed the nonpublished opinion in People v.
Brownlee, supra, F079638, conducted a Wende review, and affirmed the denial of
appellant’s petition for resentencing. In doing so, this court relied on the hearsay
summary of facts in the 1980 probation report and concluded appellant “was the actual
killer of Shirley Brown, and the changes to sections 188 and 189 would not now operate
to spare him a murder conviction [citation]. Thus, [appellant] could not make a prima
facie showing he was entitled to relief under section 1170.95.”10

10 After the denial of his first petition for resentencing, appellant filed another
motion to vacate that was denied by the trial court. On August 9, 2021, this court held
this motion to vacate was properly denied and noted the trial court found that after
appellant pleaded guilty in 1980, “ ‘in the ensuing decades, [he] has repeatedly sought to
challenge his conviction and sentence in this Court, the Court of Appeal and in the
California Supreme Court. [Appellant’s] principle [sic] argument in the attempts he has
11.
 APPELLANT’S SECOND PETITION FOR RESENTENCING
Effective January 1, 2022, Senate Bill No. 775 (2020–2021 Reg. Sess.) (Senate
Bill 775) made substantive amendments to former section 1170.95 consistent with the
California Supreme Court’s interpretation of the statute in People v. Lewis (2021)
11 Cal.5th 952 (Lewis), and it was subsequent renumbered as section 1172.6. (Stats.
2021, ch. 551, § 1 (Sen. Bill 775); People v. Saibu, supra, 81 Cal.App.5th at p. 714; Stats.
2022, ch. 58 (Assem. Bill. 200), § 10, eff. June 30, 2022).
The instant appeal is from appellant’s second petition for resentencing filed, in
pro. per., in the trial court on March 7, 2022, after the statutory amendments became
effective. Appellant again requested appointment of counsel.
Appellant filed a supporting declaration that consisted of a preprinted form where
he checked boxes that asserted (1) he was eligible for resentencing because a complaint,
information, or indictment was filed that allowed the prosecution to proceed under a
theory of felony murder, murder under the natural and probable consequences doctrine or
other theory under which malice is imputed to a person based solely on that person’s
participation in a crime, or attempted murder under the natural and probable
consequences doctrine; (2) he was convicted of murder, attempted murder, or
manslaughter following a trial, or accepted a plea offer in lieu of a trial in which he could
have been convicted of murder or attempted murder; and (3) he could not presently be
convicted of murder or attempted murder because of changes made to section 188 and
189, effective January 1, 2019.
Appellant filed a separate declaration and stated his murder plea was involuntary
because the court failed to ask him whether he was threatened or forced to enter the plea.

made in this Court is that his plea agreement was to a term of only 15 years not 15 years
to life. [Appellant] is mistaken, as the sentence for second-degree murder, in 1980, as
now, was mandated by statute to be a term of 15 years to life. [Citation.]’ ” (People v.
Brownlee, supra, F080760, bold print and underline in original.)
12.
In further support of the petition, appellant attached the information and the reporter’s
transcript from his sentencing hearing in 1980.
On April 19, 2022, the trial court appointed counsel to represent appellant.
On May 2, 2022, appellant, again acting in pro. per., filed a motion with the trial
court for discovery of the records of his 1980 plea. The motion was denied. The public
defender declared a conflict and the court appointed another attorney to represent
appellant.11
The District Attorney’s Opposition
On July 7, 2022, the district attorney filed opposition to appellant’s second petition
for resentencing and relied on this court’s opinion in People v. Brownlee, supra,
F079638, that affirmed the denial of his first petition.
The district attorney acknowledged that after appellant’s first petition was denied,
there were changes in statutory and case law that limited reliance on facts stated in an
appellate opinion to determine whether a petition stated a prima facie case. However, the
district attorney argued appellant’s second petition still lacked merit because this court’s
appellate decision affirmed the denial of his first petition and constituted law of the case
that he was the actual killer, and he could not file successive petitions raising the same
issue.
Appellant’s Hearing Brief
On August 11, 2022, appellant’s counsel filed a hearing brief with the trial court
and argued that subsequent authorities and the amendments to section 1172.6 prohibit the
courts from relying on the probation report’s hearsay summary of the preliminary hearing
evidence to find he did not state a prima facie case for relief.

11
On June 21, 2022, appellant, again acting in pro. per., filed a motion for the trial
court to enter a “default” granting his petition for resentencing. On June 23, 2022,
appellant, continuing to act in pro. per., filed a motion for “judicial notice” of the
transcript of his plea hearing. These motions were denied.
13.
 Appellant’s counsel argued the current petition stated a prima facie case, and the
trial court was required to issue an OSC and conduct an evidentiary hearing on whether
he should be resentenced.
The Court’s Hearing on Appellant’s Second Petition
On August 18, 2022, Judge Harrell, who denied appellant’s first petition, held a
hearing on appellant’s second petition. Ms. Takao, appellant’s counsel, stated appellant
waived his appearance.
Mr. Avent, the deputy district attorney, argued this court’s opinion that affirmed
the denial of his first petition for resentencing was a final determination that appellant
was the actual killer and ineligible for relief, he did not seek review of that decision, and
he could not file successive petitions raising the same issue that was already decided.
Ms. Takao argued this court’s opinion did not foreclose appellant from filing the
second petition because counsel was never appointed when he filed his first petition, that
petition was summarily denied, and appellant was entitled to again seek relief given the
amendments to section 1172.6 and the changes in case law interpreting the statute.
Discussions About the Preliminary Hearing Transcript
Also at the hearing, Ms. Takao stated that while a trial was never held in this case,
a preliminary hearing was conducted prior to appellant’s entry of his plea. Ms. Takao
argued the trial court could not consider hearsay evidence in the preliminary hearing
transcript to deny his petition for resentencing, and stated:

“I have reviewed the Court file as well as the prelim transcript, and the
evidence that [appellant] was the shooter was conveyed, or testified to, at
the preliminary hearing by Detective Mitchell, and given that that is
hearsay information, at least as to [appellant], I would ask the Court not to
consider that ….” (Italics added.)
Ms. Takao asserted the direct evidence introduced at the preliminary hearing only
showed appellant was involved in a felony murder, and the district attorney could not rely

14.
on the hearsay summary of that evidence in the probation report to argue appellant was
ineligible for resentencing because he was allegedly the actual killer.
The court asked Ms. Takao whether it could consider appellant’s admission at the
plea hearing – that he personally used a firearm in the commission of the murder – to find
he was the actual killer. Counsel replied that appellant’s admission to the firearm
enhancement could not be relied on because that would “frustrate” the purpose of the
section 1172.6 petition. The court asked Ms. Takao to clarify what evidence would be
admissible. Counsel replied:

“I believe the preliminary hearing transcript contains that at least it was a
felony murder based on live testimony. So both – the situation involved the
victims, one was killed and the two others were still present at the time that
this occurred, they testified at the preliminary hearing. They were unable to
identify any assailants or suspects at [the] preliminary hearing, but I believe
that their live testimony establishes that this was a felony murder or murder
under natural and probable consequences. [¶] I believe, however, the
evidence in the preliminary hearing transcript that establishes that
[appellant] was the actual killer was hearsay as testified through a
detective and not live testimony. And based on the changes in law to
[section] 1172.6 that occurred beginning this year, at a hearing, after an
OSC has been issued, the Court cannot consider Prop 115 or hearsay
evidence at a preliminary hearing transcript ….” (Italics added.)
Mr. Avent stated he did not realize the transcript from appellant’s preliminary
hearing still existed, he had not seen it, and he did not know “if I can get [my] hands on
it.” He argued it was not necessary to rely on that transcript because this court’s opinion
from 2020 found appellant was the actual killer, that ruling was law of the case since
appellant never filed a petition for review, and appellant could not file another
section 1172.6 petition raising the same issue.
Ms. Takao did not introduce the preliminary hearing transcript into evidence and
Mr. Avent did not request a copy of the transcript from her. There is no indication that
the trial court reviewed the preliminary hearing transcript, and that transcript is not part
of the record before this court.

15.
The Court’s Denial of the Petition
After the parties’ arguments, the court denied appellant’s petition:

“The Court previously made a ruling in this case [in the first petition].
Counsel was not involved in that so, properly, he now has counsel.
Counsel has raised the objections that were noted. The Court finds that the
Court’s original determination, which was confirmed by the 5th District
Court of Appeal, is the appropriate determination that this individual was in
fact the actual killer and, therefore, not entitled to relief sought….”
Issues on Appeal
Appellant has filed a timely a notice of appeal from the trial court’s denial of his
second petition. Appellant argues he could file his second petition because of changes in
the law, the trial court erroneously denied his second petition by relying on the hearsay
factual summary in this court’s prior opinion from the probation report, and the matter
must be remanded for issuance of an OSC and an evidentiary hearing because there is no
admissible evidence in the record of conviction to show he was ineligible for
resentencing as a matter of law.
DISCUSSION
I. Senate Bill 1437 and Section 1172.6
In order to address the parties’ contentions, we begin with Senate Bill 1437’s
amendments of sections 188 and 189, interpretations of the provisions, and subsequent
statutory amendments.
“Effective January 1, 2019, Senate Bill … 1437 … amended the felony-murder
rule by adding section 189, subdivision (e). [Citation.] It provides that a participant in
the qualifying felony is liable for felony murder only if the person: (1) was the actual
killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and
abettor; or (3) was a major participant in the underlying felony and acted with reckless
indifference to human life. [Citation.] The Legislature also amended the natural and
probable consequences doctrine by adding subdivision (a)(3) to section 188, which states
that ‘[m]alice shall not be imputed to a person based solely on his or her participation in a

16.
crime.’ ” (People v Harden (2022) 81 Cal.App.5th 45, 50–51; People v. Strong (2022)
13 Cal.5th 698, 707–708 (Strong).)
“Senate Bill 1437 also created a special procedural mechanism for those convicted
under the former law to seek retroactive relief under the law as amended,” originally
codified in former section 1170.95. (Strong, supra, 13 Cal.5th at p. 708, fn. omitted.)
The original version of the statute permitted “a person with an existing conviction for
felony murder or murder under the natural and probable consequences doctrine to petition
the sentencing court to have the murder conviction vacated and to be resentenced on any
remaining counts if he or she could not have been convicted of murder as a result of the
other legislative changes implemented by Senate Bill … 1437.” (People v. Flores (2020)
44 Cal.App.5th 985, 992.)
As previously explained, Senate Bill 775 (2020–2021 Reg. Sess.) made
substantive amendments to former section 1170.95, effective January 1, 2022, consistent
with People v. Lewis, supra, 11 Cal.5th 952, and “ ‘[c]larifie[d] that persons who were
convicted of attempted murder or manslaughter under a theory of felony murder and the
natural [and] probable consequences doctrine are permitted the same relief as those
persons convicted of murder under the same theories.’ ” (People v. Birdsall (2022)
77 Cal.App.5th 859, 865, fn. 18; People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.)
The statute has since been renumbered as section 1172.6. (People v. Saibu, supra,
81 Cal.App.5th at p. 714.)
Appellant’s second petition was thus filed pursuant to section 1172.6, which
states:

“(a) A person convicted of felony murder or murder under the
natural and probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person’s participation in
a crime, attempted murder under the natural and probable consequences
doctrine, or manslaughter may file a petition with the court that sentenced
the petitioner to have the petitioner’s murder, attempted murder, or
manslaughter conviction vacated and to be resentenced on any remaining
counts when all of the following conditions apply:
17.
 “(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony
murder, murder under the natural and probable consequences doctrine or
other theory under which malice is imputed to a person based solely on that
person’s participation in a crime, or attempted murder under the natural and
probable consequences doctrine.

“(2) The petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a trial at
which the petitioner could have been convicted of murder or attempted
murder.

“(3) The petitioner could not presently be convicted of murder or
attempted murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (a), italics added.)12
The court shall appoint counsel if requested by petitioner. (§ 1172.6, subd. (b)(3).)
After service of the petition, the prosecutor shall file and serve a response. The petitioner
may file and serve a reply after the response is served. (Id., subd. (c).)
“After the parties have had an opportunity to submit briefings, the court shall hold
a hearing to determine whether the petitioner has made a prima facie case for relief. If
the petitioner makes a prima facie showing that the petitioner is entitled to relief, the
court shall issue an order to show cause. If the court declines to make an order to show
cause, it shall provide a statement fully setting forth its reasons for doing so.” (§ 1172.6,
subd. (c).)
The record and opinion from a petitioner’s direct appeal are part of the record of
conviction. (Lewis, supra, 11 Cal.5th at p. 972.) The role of the appellate opinion is
limited, however, and the court may not rely on factual summaries contained in prior
appellate decisions or engage in fact finding when determining if the petitioner made a
prima facie showing. (People v. Clements (2022) 75 Cal.App.5th 276, 292; Lewis, at
p. 972.)

12While not applicable herein, section 189 was amended to allow for felony-
murder liability where the victim is a peace officer. (§ 189, subd. (f).)
18.
 “In reviewing any part of the record of conviction at this preliminary juncture, a
trial court should not engage in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’ ” (Lewis, supra, 11 Cal.5th at p. 972.) “[T]he prima facie inquiry
under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus
proceedings, ‘ “the court takes petitioner’s factual allegations as true and makes a
preliminary assessment regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue an order to show
cause.” ’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations on
credibility grounds without first conducting an evidentiary hearing.’ [Citation.]
‘However, if the record, including the court’s own documents, “contain[s] facts refuting
the allegations made in the petition,” then “the court is justified in making a credibility
determination adverse to the petitioner.” ’ ” (Id. at p. 971.)
To demonstrate prejudice from the denial of a section 1172.6 petition before the
issuance of an OSC, the petitioner must show it is reasonably probable that, absent the
error, his or her petition would not have been summarily denied without an evidentiary
hearing. (Lewis, supra, 11 Cal.5th at pp. 972–974; People v. Watson (1956) 46 Cal.2d
818, 836.)
If an OSC is issued, “the court shall hold a hearing to determine whether to vacate
the murder, attempted murder, or manslaughter conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same manner as if the petitioner
had not previously been sentenced, provided that the new sentence, if any, is not greater
than the initial sentence….” (§ 1172.6, subd. (d)(1).)
“At the hearing to determine whether the petitioner is entitled to relief, the burden
of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under California law as amended by
the changes to Section 188 or 189 made effective January 1, 2019. The admission of
evidence in the hearing shall be governed by the Evidence Code, except that the court

19.
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 court may also consider the procedural history of the case recited
in any prior appellate opinion. However, hearsay evidence that was admitted in a
preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the
hearing as hearsay, unless the evidence is admissible pursuant to another exception to the
hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence
to meet their respective burdens….” (§ 1172.6, subd. (d)(3).)13
II. Appellant’s Successive Petitions
We first consider whether appellant could file a second petition pursuant to
section 1172.6, or if his second petition was barred by the trial court’s denial of his first
petition because this court’s opinion affirming that ruling operated as collateral estoppel.
A. Farfan
In People v. Farfan (2021) 71 Cal.App.5th 942 (Farfan), the court addressed a
situation similar to the instant case. In 2019, the defendant filed a petition for
resentencing of his murder conviction, shortly after former section 1170.95 was enacted.
The superior court denied the petition and the defendant did not file an appeal. In 2020,
the defendant filed a second petition raising the same issues, along with a motion for
reconsideration, based upon new legal authority that undermined the basis for the
superior court’s denial of his first petition. The superior court denied both motions. (Id.
at p. 946.)
Farfan held a petitioner may file successive petitions for resentencing pursuant to
former section 1170.95 if the subsequent petitions are based on new legal authority.

13 “If such evidence may not be considered at an evidentiary hearing to determine
a petitioner’s ultimate eligibility for resentencing, we fail to see how such evidence could
establish, as a matter of law, a petitioner’s ineligibility for resentencing” in determining
whether he made a prima facie case for relief. (People v. Flores (2022) 76 Cal.App.5th
974, 988, fn. omitted.)
20.
(Farfan, supra, 71 Cal.App.5th at pp. 946–947, 950–951.) Farfan rejected the People’s
argument that collateral estoppel barred defendant’s second petition, because even the
People conceded former section 1170.95 contained no express bar to successive petitions
“where, as here, the subsequent petition rested on new legal authority which challenged
the basis for the superior court’s summary denial of the previous petition.” (Farfan, at
pp. 946–947, 950.)
Farfan held the California Supreme Court’s ruling in Lewis, and other cases
published after appellant’s first petition was denied, demonstrated the “still-evolving state
of [former] section 1170.95 jurisprudence” and appellant’s second petition was not barred
by collateral estoppel. (Farfan, supra, 71 Cal.App.5th at p. 950.)

“In our view, application of collateral estoppel to bar consideration of
appellant’s 2020 petition would thwart Senate Bill … 1437’s overall
purpose of ensuring that ‘a person’s sentence is commensurate with his or
her individual criminal culpability’ [citations], and that ‘all those entitled to
resentencing are able to obtain relief’ [citation]. This is especially true in
this case, where the superior court never appointed counsel even though
appellant filed two facially sufficient petitions.” (Ibid.)
Farfan explained that “[a]pplication of collateral estoppel is not automatic, but is
subject to public policy considerations,” and factors such as “ ‘preservation of the
integrity of the judicial system, promotion of judicial economy, and protection of litigants
from harassment by vexatious litigation – strongly influence whether its application in a
particular circumstance would be fair to the parties and constitutes sound judicial policy.’
[Citation.] In this case, none of these public policy considerations favors application of
collateral estoppel to bar appellant’s 2020 petition.” (Farfan, supra, 71 Cal.App.5th at
p. 950.)
Farfan also rejected the People’s claim that a petition filed under former
section 1170.95 was similar to a petition for writ of habeas corpus. (Farfan, supra,
71 Cal.App.5th at pp. 950–951.) While successive habeas petitions cannot not be filed on
the same factual and legal grounds, “the general rule does not apply in habeas

21.
proceedings when there has been a retroactive change in the law affecting the petitioner.
[Citation.] As our Supreme Court explains, a change is retroactive when it ‘is substantive
rather than procedural (i.e., it alters the range of conduct or the class of persons that the
law punishes, or it modifies the elements of the offense) or when a judicial decision
undertakes to vindicate the original meaning of the statute.’ ” (Id. at p. 951, italics
added.)

“Under this standard, not only are the changes to the law effected by
Senate Bill … 1437 themselves retroactive, but judicial interpretations of
[former] section 1170.95 may afford a petitioner grounds for claiming
eligibility for relief under the statute that were not previously available
under other judicial interpretations. Here, because appellant’s 2020 petition
was based on new authority which challenged the primary ground for the
superior court’s summary denial of his 2019 petition, the 2020 petition was
not procedurally barred as a successive petition.” (Ibid., italics added.)
While Farfan held the defendant in that case could file a second petition, it also
held the defendant was still ineligible for relief as a matter of law based upon the jury’s
findings. (Farfan, supra, 71 Cal.App.5th at p. 947.)
B. Analysis
In this case, appellant filed his first petition for resentencing under former
section 1170.95, it was denied in 2019, and this court affirmed the trial court’s denial in
2020. Both this court and the superior court relied on the hearsay statement of facts
contained in the probation report, that was summarized from the preliminary hearing
evidence, and held appellant did not state a prima facie case for relief because, given
appellant’s plea, that factual summary showed he was the actual killer.
At the time of these rulings, there was a division among appellate courts as to
whether hearsay evidence could be relied upon to find a petition did not state a prima
facie case for relief. (See, e.g., People v. Williams (2020) 57 Cal.App.5th 652, 661–662
[reliable hearsay evidence admissible to address prima facie question under former
section 1170.95].)

22.
 As a result of the California Supreme Court’s decision in Lewis in 2021, and the
amendments to section 1172.6 that became effective in 2022, it is now clear that the court
cannot make factual findings, rely on factual statements in a prior appellate opinion, or
rely on hearsay in a probation report, to conclude that a petition does not state a prima
facie case. (§ 1172.6, subd. (d)(3); Lewis, supra, 11 Cal.5th at pp. 971–972; People v.
Owens (2022) 78 Cal.App.5th 1015, 1026; People v. Clements, supra, 75 Cal.App.5th at
p. 292; People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9.)
Based on these changes in the statutory and decisional law, appellant’s second
petition was not barred by principles of collateral estoppel and this court’s decision in
People v. Brownlee, supra, F080760 that affirmed the denial of his first petition.
(Farfan, supra, 71 Cal.App.5th at pp. 950–951.)
III. The Superior Court’s Denial of Appellant’s Second Petition
When appellant filed his second petition in 2022, the superior court complied with
section 1172.6 and appointed counsel, received further briefing, conducted a hearing as to
whether he made a prima facie showing, and gave a statement of reasons as to why it was
denying the petition without issuing an OSC. (§ 1172.6, subds. (c), (d).)
In denying the petition, however, the court stated it was relying on this court’s
opinion that affirmed the denial of his first petition, that appellant was the actual killer,
which, in turn, was based on the hearsay statements in the probation report that were
summarized from the preliminary hearing transcript.
As explained above, appellant could file a second petition for resentencing
because of the statutory amendments effective on January 1, 2022, since section 1172.6,
subdivision (d)(3) “now says that the Evidence Code shall apply at such hearing. This
may mean that, absent some exception, hearsay contained in probation, presentence
reports, appellate opinions/orders, and other documents, are not now admissible” at an
evidentiary hearing. (People v. Owens, supra, 78 Cal.App.5th at p. 1026.) “If such
evidence may not be considered at an evidentiary hearing to determine a petitioner’s

23.
ultimate eligibility for resentencing, we fail to see how such evidence could establish, as
a matter of law, a petitioner’s ineligibility for resentencing at the prima facie stage.”
(People v. Flores, supra, 76 Cal.App.5th at p. 988, fn. omitted.)
The superior court erroneously denied appellant’s second petition by relying on
this court’s opinion that affirmed the denial of his first petition, that in turn relied on the
hearsay factual summary from the probation report.
IV. The Record of Conviction
The trial court’s erroneous reliance on hearsay evidence to deny appellant’s
second petition is not prejudicial unless it is reasonably probable that, absent error, his or
her petition would not have been summarily denied without an evidentiary hearing.
(Lewis, supra, 11 Cal.5th at pp. 972–974; People v. Watson, supra, 46 Cal.2d at p. 836.)
A petitioner convicted of murder is ineligible for resentencing, and the petition
may be denied without issuing an OSC, if the record of conviction conclusively
establishes, with no factfinding, weighing of evidence, or credibility determinations, that
he was the actual killer. (§§ 188, subd. (a)(3), 189, subd. (e); Lewis, supra, 11 Cal.5th at
p. 971; People v. Gentile (2020) 10 Cal.5th 830, 842–843; People v. Lopez (2022)
78 Cal.App.5th 1, 14–15.) Even if convicted under the felony-murder rule, the petitioner
is ineligible for resentencing if he was the actual killer. (§§ 188, subd. (a); 189,
subd. (e)(1); 1172.6, subd. (a)(3).)
In determining whether a petitioner made a prima facie case for relief, the court
may review the record of conviction that allows the court “to distinguish petitions with
potential merit from those that are clearly meritless. This is consistent with the statute’s
overall purpose: to ensure that … culpability is commensurate with a person’s actions,
while also ensuring that clearly meritless petitions can be efficiently addressed as part of
a single-step prima facie review process.” (Lewis, supra, 11 Cal.5th at pp. 971–972 &
fn. 6.)

24.
 The People acknowledge the hearsay factual summary in the probation report is
now inadmissible to determine if a petition made a prima facie showing for relief. We
turn to other parts of the record of conviction to determine whether the trial court’s error
was prejudicial.
A. The Preliminary Hearing Transcript
The criminal complaint jointly charged appellant and his codefendants with
murder with special circumstances, plus separate charges of rape and robbery. On
June 13, 1980, after a joint preliminary hearing, appellant and his codefendants were held
to answer. The information was then filed, that charged appellant and the codefendants
with murder and robbery and did not reallege the special circumstances. Appellant
pleaded to second degree murder and robbery, and there was no trial.
At the hearing on appellant’s second section 1172.6 petition, Ms. Takao,
appellant’s counsel, stated she had a copy of the preliminary hearing transcript and
reviewed it, and it contained hearsay statements about appellant’s culpability in the
murder. The district attorney stated he did not have a copy of the transcript.
Appellant’s counsel did not introduce the transcript into evidence, and the superior
court did not state that it relied on that transcript when it denied appellant’s second
petition.
The preliminary hearing transcript is part of the record of conviction, but it is not
before this court. Moreover, “hearsay evidence that was admitted in a preliminary
hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as
hearsay, unless the evidence is admissible pursuant to another exception to the hearsay
rule.” (§ 1172.6, subd. (d)(3).)
B. Appellant’s Admission to the Firearm Enhancement
When appellant pleaded guilty to second degree murder and robbery in 1980, he
also admitted he personally used a firearm, a handgun, in the commission of both
offenses (§ 12022.5). At the hearing on appellant’s second petition for resentencing, the

25.
superior court asked appellant’s attorney whether it could rely on appellant’s admission
to the personal use enhancement to find he was the actual killer. Appellant’s counsel
disagreed, and the court did not rely on that enhancement when it stated reasons for
denying the petition.
There are circumstances where a defendant’s admission to a personal use
enhancement may constitute evidence that he was the actual killer. In People v.
Jones (2003) 30 Cal.4th 1084, the court held that a jury’s finding that a defendant
personally used a firearm, in and of itself, does not in itself prove a defendant is the
actual killer because a gun could be used even if it is never fired: “If two robbers display
guns to intimidate robbery victims and one shoots and kills a victim, both robbers could
be found to have personally used a gun in the robbery and the felony murder, even
though only one is the actual killer.” (Id. at p. 1120.) However, when the record shows
only one person displayed and used a gun, and “[a]ll evidence points to defendant, not the
second robber, as the one with the gun,” the true finding on a personal use enhancement
demonstrates that the defendant was the actual killer. (Ibid.)
In People v. Young (2005) 34 Cal.4th 1149, the court reaffirmed that a finding of
personal use, standing alone, does not demonstrate a defendant was the actual killer.
(Id. at p. 1205.) However, where there was “no evidence that anyone else who may have
been present at the … residence displayed in a menacing manner, or otherwise used, a
gun,” then “all evidence points to [the] defendant as the one who actually shot and killed
[the victim].” (Ibid.)
In People v. Garrison (2021) 73 Cal.App.5th 735, the court relied on Jones and
Young, and held that where the petitioner admitted he was the only person armed with a
handgun during the commission of a robbery, and the uncontroverted evidence showed
that gun was used to shoot the victim, the evidence demonstrated that he was the actual
killer, and he was ineligible for relief under section 1172.6. (Garrison, at pp. 743, 747.)

26.
 In this case, the information jointly charged appellant and his codefendants with
murder and robbery, with attached enhancements for personal use of a firearm. The
record of conviction shows that appellant pleaded guilty to murder and robbery and
admitted the attached personal use enhancements for both counts. The probation report,
again in hearsay statements, stated that codefendants Green, Byrd, and Taylor only
pleaded guilty to robbery and not to murder, and did not mention the resolution of the
firearm enhancements in their cases.
In People v. Brownlee, supra, F053324, one of the cases that we have judicially
noticed, the record includes the transcript of the sentencing hearing for codefendant
Green, held on December 18, 1980, that states he pleaded guilty only to robbery with the
use of a firearm, and not to murder; he was sentenced to seven years in prison.
The record before this court, however, does not contain non-hearsay evidence of
how the charges were resolved against the two remaining codefendants, Byrd and Taylor,
and whether either of them pleaded to murder with the firearm enhancement, to
determine whether appellant was the actual killer based on his plea to murder with the
personal use enhancement. (People v. Jones, supra, 30 Cal.5th at p. 1120; People v.
Young, supra, 34 Cal.4th at p. 1205.)
C. The Court’s Findings at Appellant’s Sentencing Hearing
The People argue the record of conviction shows appellant was ineligible for
resentencing based upon the trial court’s statements at the sentencing hearing in 1980,
when it found multiple aggravating circumstances, and stated the commission of the
robbery was complete and the murder “was a separate venture on the part of the
[appellant] to shoot this victim….” The People assert the court’s “analysis” of the
aggravating and mitigating factors at the sentencing hearing “was informed by the
presentence report by the probation officer, the arguments of the parties, and
(presumably) the plea transcript.” (Italics added.)

27.
 There was no trial in this case. Judge Caeton conducted both the plea and
sentencing hearings. The reporter’s transcript for the plea hearing no longer exists. The
minute order states the court found a factual basis for appellant’s plea but does not state
the grounds for that factual basis. The court’s statements at the sentencing hearing in
1980 were not based on the evidence that had been introduced at the plea hearing or even
the preliminary hearing. Instead, the sentencing transcript shows the court relied on the
hearsay statements in the probation report when it found the aggravating circumstances
and that appellant was the actual killer.
We reject the People’s argument that the court’s statements at the sentencing
hearing could be considered to find appellant was ineligible for resentencing as a matter
of law.
V. Consideration of Appellant’s Sworn Statements at the Parole Board Hearings
As explained above, this court advised the parties that it was considering taking
judicial notice of appellant’s prior cases in this court’s records, including In re Terrence
Brownlee, supra, F083164, a petition for writ of habeas corpus filed by appellant on
August 10, 2021, where he claimed the Board of Parole Hearings violated his due process
rights and issued arbitrary rulings when it denied parole to him in 2010 and 2021. In
support of this petition, appellant filed certified copies of the transcripts of his hearings
before the Board of Parole Hearings, held on August 19, 2010, and February 4, 2021.
(Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).) On November 4, 2021, this court
denied the petition.
We ordered the parties to submit supplemental briefing as to whether this court
may take judicial notice of these particular records, and whether we may rely on
appellant’s sworn testimony that he was the actual killer, contained in the certified copies
of the transcripts of the Board of Parole Hearings, to determine whether the superior
court properly denied to resolve the instant appeal, based on the decisions in People v.

28.
Myles (2021) 69 Cal.App.5th 688 (Myles) and People v. Anderson (2022) 78 Cal.App.5th
81, 93 (Anderson).
The parties have agreed this court may take judicial notice of appellant’s prior
cases in our records, including the transcripts of the parole board hearings, and we may
rely on appellant’s sworn admissions at those hearings that he was the actual killer to
resolve the instant appeal.
A. Appellant’s Sworn Statements at the Parole Board Hearings
At the August 2010 hearing before the Board of Parole Hearings, appellant was
present, represented by counsel, sworn as a witness, and questioned by members of the
board.

“[Q.] Do you recall seeing the victim be shot?

“[A.] I just remember a gun, just the pop of a gun. And when I looked
down at my hand, you know, it was like, you know, I didn’t do this.

“[Q.] But you did it?

“[A.] Yeah, because the gun was in my hand. But it wasn’t done by me
intentionally. So I had got that across to the judge, this wasn’t done by me
intentionally. I mean, you know, I was there, and I took responsibility for
it. Like I told my lawyer, yeah, I had the gun. I take responsibility for this,
because had I been there and had the gun in my hand, it never would have
happened….”
Appellant claimed he was drunk and on drugs. He was asked whether there were
any blood tests. Appellant said that was “one of the discrepancies” because all the
defendants tested negative.
Appellant was asked why he would take someone’s life. Appellant testified:
“That wasn’t my intention, I would never take a life….”

“[Q.] But you did take a life.

“[A.] Yes.”
In response to questions from his attorney, appellant admitted he went to the motel
to commit a robbery, he knew one of the men had a gun, he didn’t know that someone
29.
had a second gun, someone handed the gun to him, he accepted it, and it was wrong to do
that.

“[Q.] So you are the person who killed Ms. Brown, I take it?

“[A.] I had the gun. The gun went off in my hand.

“[Q.] Are you the person who killed Mrs. Brown?

“[A.] Yeah, the gun was in my hand. Yes.” (Italics added.)
At the February 2021 hearing before the Board of Parole Hearings, appellant was
present, represented by counsel, sworn as a witness, and answered questions. “The gun
was in my hand. It went off from my hand. So, therefore, I committed the murder. I
accept responsibility … for that….” (Italics added.)
Appellant stated he was “out of it” because he was drinking and using drugs. A
member of the panel noted appellant tested negative for anything in his system.
Appellant claimed the tests were wrong.
In response to further questioning, appellant said he knew they were going to do a
robbery, someone handed him a gun, and he did not plan for it to happen. “The gun was
in my hand. It went off from my hand. So, therefore, I committed the murder.” “[W]hen
the gun went off, it was in my hand. To [this] day … I don’t know if I pulled the trigger
or the guy behind me hit my arm, but the gun went off from my hand. That’s why I said
full responsibility for having the gun….”

“[Q.] …. [L]et me ask you this. Did you do that? Did you shoot her?

“[A.] Yes, the gun was in my hand. So, like I said, uh, the gun was in my
hand. [¶] … and I remember going off from my hand, so yes….”
Appellant further stated: “I’m responsible for what happened to Shirley Brown.
The gun was in my hand. I take full responsibility for that. Uh, I can’t change that.
That’s something that I have to live with for the rest of my life … because I know a life
was taken from this world by my hands, not, you know, by my hands. It happened by my
hand.”

30.
 B. Admissibility of Parole Hearing Transcripts Under Section 1172.6
A petitioner’s statements in parole hearing transcripts have been held admissible
to determine the merits of a section 1172.6 petition. In Myles, supra,
69 Cal.App.5th 688, the defendant pleaded no contest to second degree murder, and later
filed a petition for resentencing pursuant to former section 1170.95. The superior court
issued an OSC and held an evidentiary hearing. The prosecution moved to introduce the
defendant’s statements from a parole risk assessment report and parole hearing transcript,
where she admitted killing the victim and explained how she did it. The trial court
overruled defense objections and admitted the evidence, denied the petition, and found
the defendant was the actual killer. (Myles, at p. 694.) On appeal, the defendant argued
her statements at the parole hearing were inadmissible because they were protected by
“use immunity” and did not constitute “new or additional evidence” that could be
introduced at the evidentiary hearing. (Id. at p. 692.)
Myles held the defendant’s statements in the parole hearing transcripts constituted
“ ‘new or additional evidence’ ” because, “[i]n light of the limited record often available
in cases resolved by plea, the provisions allowing both parties to present evidence
available for the first time postconviction enables them to meet their respective burdens
of proof.” (Myles, supra, 69 Cal.App.5th at p. 699, italics added.)
Myles further held the defendant’s statements at the parole hearing were not
protected by use immunity because “the Fifth Amendment protects individuals from
government coercion. Here, [the] defendant was not compelled to file a [former] section
1170.95 petition, nor to testify at her parole hearing, nor to participate in her risk
assessment interview. Indeed, as the trial court noted and [the] defendant acknowledges,
parole cannot be conditioned on admission of guilt to a certain version of the crime.
[Citations.] [The] [d]efendant was also expressly advised at her parole hearing that she
had the option to not discuss the commitment offense and that choice would not be held
against her. [The] [d]efendant opted instead to discuss it and testified under oath about

31.
her role in the crime. Having chosen to be truthful in the assessment interview and testify
truthfully at the parole hearing, it is not fundamentally unfair to admit that information
during a resentencing proceeding voluntarily initiated by defendant bearing on some of
the same issues.” (Myles, supra, 69 Cal.App.5th at p. 706.)
In Anderson, supra, 78 Cal.App.5th 81, the defendant was convicted of two counts
of first degree murder, robbery, and burglary. He filed a petition for resentencing under
former section 1170.95, and the court issued an OSC and held an evidentiary hearing. At
the hearing, the court granted the prosecutor’s motion to admit the defendant’s testimony
at a parole board hearing and relied on that evidence to deny his petition. (Id. at pp. 83–
84.) Anderson relied on Myles and rejected the defendant’s claim that his testimony at
the parole hearings was protected by use immunity, and his alternate argument that Myles
was wrongly decided. (Anderson, at pp. 89–92; see also People v. Mitchell (2022)
81 Cal.App.5th 575, 588 [“As other courts have done, we follow Myles’s well-reasoned
analysis” and the defendant’s statements at parole board hearing are admissible at a
section 1172.6 evidentiary hearing]; People v. Duran (2022) 84 Cal.App.5th 920, 927,
930–932.)
C. The Parties’ Supplemental Briefing
As explained above, the trial court committed error when it denied appellant’s
second petition by relying on this court’s prior opinion. In that opinion, this court
affirmed the denial of his first petition by relying on the probation report’s hearsay
summary of the facts from the preliminary hearing transcript.
The question is whether the trial court’s erroneous reliance on hearsay evidence
was prejudicial in light of appellant’s sworn statements at the parole board hearings. In
response to our briefing order on this subject, the People stated remand was not required
for an evidentiary hearing because the prosecutor would simply introduce the transcripts
from the parole hearings, as permitted by Myles, Anderson, and Mitchell. In those
transcripts, appellant admitted he killed the victim, and the trial court would be certain to

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deny appellant’s petition based on those admissions. The People further argued that if
appellant filed another appeal, counsel would likely file a Wende brief. In the interests of
judicial economy, the People argued this court should rely on appellant’s admissions in
the transcripts of the parole board hearings to find the trial court’s erroneous reliance on
hearsay was not prejudicial, and he was ineligible as a matter of law because he was the
actual killer.
In his brief, appellant’s counsel stated that while this court may take judicial notice
of our own records, appellant’s sworn statements at the parole board hearings were not
part of the “record of conviction.” However, counsel acknowledged the holdings in
Myles, Anderson, and Mitchell, that a petitioner’s statements at such hearings may be
considered in determining the merits of a section 1172.6 petition for resentencing.
Appellant’s counsel conceded that while it “would be more appropriate to remand
this matter to the trial court to issue an order to show cause and hold an evidentiary
hearing pursuant to … section 1172.6, subdivisions (c) and (d), under the above recited
existing case law appellant submits that, notwithstanding the California Supreme Court’s
limitation of consideration to matters contained in the ‘record of conviction,’ it does not
appear unlawful for this court to consider any sworn statements made before the Board
of Parole Hearings.” (Italics added.)
D. Conclusion
Based on appellant’s concession that we may rely on his admissions before the
parole board, we find the trial court’s erroneous reliance on this court’s prior opinion, and
the hearsay statements within that opinion, to deny his second petition was not prejudicial
given appellant’s sworn admissions at the parole board hearings that he was the actual
killer of the victim, and he is ineligible for resentencing as a matter of law.
DISPOSITION
The court’s order of August 18, 2022, denying appellant’s second petition is
affirmed.

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