Filed 4/5/22 P. v. Salinas

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Jose Rene Salinas appeals from a postjudgment order denying his petition for resentencing under Penal Code[1] section 1170.95. Appellant contends the trial court erred in considering his testimony at his parole suitability hearing in finding beyond a reasonable doubt that he directly aided and abetted the second degree murder of which he was convicted. We conclude that appellant’s testimony was admissible at the evidentiary hearing on his section 1170.95 petition for resentencing, and that any error in its admission was harmless. (People v. Myles (2021) 69 Cal.App.5th 688, 704-705, review denied Dec. 15, 2021.) Accordingly, we affirm.

FACTUAL AND PROCEDURAL HISTORY

In August 1988, appellant and codefendant Jose Manuel Garcia were charged by information with the murder of Jeffrey Ward (§ 187, subd. (a)) and other offenses. Appellant subsequently pleaded guilty to second degree murder and admitted a firearm use allegation (§ 12022, subd. (a)). The trial court sentenced him to 15 years to life in state prison. In February 2019, appellant filed a petition for resentencing under section 1170.95. After counsel was appointed to represent appellant and the case was briefed, the court issued an order to show cause and held an evidentiary hearing.

At the hearing, the People offered into evidence portions of appellant’s preliminary hearing transcript, the transcript of his 2015 parole suitability hearing, a list of statements from the parole hearing prepared by the prosecutor, and a thumb drive containing all of the lodged exhibits. Appellant offered the transcript of his plea hearing, the plea agreement, the transcript of his sentencing hearing, the abstract of judgment, a police report summarizing statements made by eyewitnesses to the crime, and a document stating that certain recordings referenced in the police report had been destroyed.

Appellant moved to exclude the referenced portions of his parole suitability hearing transcript, which were offered as admissions of a party opponent. (Evid. Code, § 1220.) Appellant contended among other things that as a matter of public policy, his testimony at his parole suitability hearing was subject to use immunity in subsequent criminal proceedings because prospective parolees who testify at such hearings should be encouraged to be as honest as possible. The prosecutor responded that the evidence was admissible because appellant had already been convicted so double jeopardy principles did not apply and there was no presumption of innocence; moreover, appellant was represented by counsel at the parole hearing and chose to testify. The court declined to exclude the evidence, but agreed with appellant that the transcript of the entire hearing should be admitted as it contained both exculpatory and inculpatory statements.

In its written order denying the petition, the trial court found the prosecution had met its burden of proving beyond reasonable doubt “that [appellant] knew of Garcia’s criminal purpose and intentionally aided Garcia in accomplishing that criminal goal of murder, a theory of culpability that withstands the changes envisioned by Senate Bill 1437.” The court also stated that the transcripts of the preliminary and parole suitability hearings were “critical to the court’s inquiry.”

The court recited the evidence from the preliminary hearing transcript in relevant part as follows: “Jesse Luna, on the morning of June 3, 1988, before the shooting, testified that he was in his residence at North Benwiley when he heard a loud noise. He exited his home, saw a car parked across the street, and noticed that his personal vehicle had suffered gunshot damage, with a hole in the fender. Later that same day, . . . [Luna] was in front of his residence (talking with a number of friends) when he saw a primer colored Ford Mustang twice drive by his house. During the first pass, Mr. Luna identified [appellant] as the driver of the vehicle, and noticed a front-seat passenger, but could not identify him. Shortly thereafter, during a second pass, he noticed [appellant] was still driving, but again could not identify the front-seat passenger. Mr. Luna then heard a gunshot, which came from the driver’s side window. He saw a gunshot flash and noted that it illuminated the driver’s face, and he noticed [appellant’s] left arm on the steering wheel as he continued to drive the vehicle. The Ford Mustang then drove off quickly; [Luna] noticed [Jeffrey] Ward had been shot and was on the ground. On cross-examination, Mr. Luna indicated that he had previously told investigating detectives that he had seen [appellant] holding and pointing [a] shotgun at the group of people in front of his residence at the time the shotgun was fired.”

“Leo Phillips, who lived next door to Mr. Luna, testified about the first shooting involving Mr. Luna’s vehicle. Close to 11:00 a.m. on June 3, 1988, he heard a gunshot; he looked out the front window of his house and saw a Ford Mustang (blue with primer spots) moving down the street, and then watched as the vehicle suddenly drove away. He identified the two men in the car as Hispanic. He also . . . saw Mr. Luna standing near his vehicle and noticed Mr. Luna’s car fender had been damaged by gunfire. He indicated that shortly after the shooting he discussed what he had just seen with Mr. Luna.

“Elias Alcazar Jr. testified that he was in front of Mr. Luna’s house when he heard gunfire just before Mr. Ward was killed. A few minutes prior to the shooting, . . . [Alcazar] saw a primer colored Ford Mustang drive down Benwiley, and noticed a passenger in the front seat, but could not identify that person. He described how the Ford Mustang slowed down as it approached a group of people in front of Mr. Luna’s residence; saw a firearm pointed from the driver’s side window; and watched as the vehicle sped away. Mr. Alcazar expressly identified [appellant] as the driver and co-defendant Garcia as the passenger in the blue Ford Mustang.

“Albert Covarrubias testified that he was also present at the time of the shooting, corroborating much of what Mr. Alcazar and Mr. Luna said. He testified that he saw gunfire come from the driver’s side of [a] primer colored Ford Mustang.

“James Titsworth testified that he was at the . . . scene at the time of the shooting; and that he saw a gunshot flash come from the driver’s side window . . . . He positively identified [appellant] as the driver of the primer colored Ford Mustang.

“Francis Corella testified that she owned the blue/primer colored Ford Mustang at issue. She had given [appellant] permission to ‘work on’ the car at the time of the shooting, and [appellant] had agreed to complete body repairs to the vehicle. She confirmed that the vehicle was in [appellant’s] possession for at least a week prior to the shooting. She also confirmed that [appellant] and Garcia possessed the car on the day of the shooting, returned the car the day after the shooting . . . , and noticed that [appellant] parked the car away from her residence when it was returned, something he had not done previously.”

The court summarized appellant’s 2015 parole suitability hearing testimony in relevant part as follows: “[Appellant] admitted that he knew Garcia was a gang member, although he claimed that he [himself] was only a ‘wannabe’ who affiliated with gang members from Guadalupe. He also acknowledged that he was aware Mr. Luna and Garcia had a ‘feud’ and that Mr. Luna was suspected of vandalizing the cars of Guadalupe gang members. . . . [W]hen Garcia suggested for the first time . . . that they ‘drive by’ Mr. Luna’s house, [appellant] ‘didn’t ask,’ and Garcia ‘didn’t explain’ the reason for the journey. . . . [Appellant] insisted that he was unaware Garcia was armed, and simply ‘drove away as fast as I could.’

“[A]fter this shooting, [appellant] drove Garcia to a friend’s house, where Garcia [falsely] told him he had disposed of the gun. . . . [¶] Later that evening, . . . Garcia once again asked, ‘[L]et’s go by [Mr. Luna’s] house[,]’ and once again [appellant] agreed. . . . He thought [Garcia and Luna] were ‘going to fight,’ but . . . did not know Garcia was armed. . . . [W]hen they returned to Mr. Luna’s house . . . [h]e saw a number of people standing outside the residence; they made two passes in the vehicle, and during the second pass, ‘Garcia pulls a gun out and start[s] shooting again.’”

“Upon questioning by a Santa Barbara County Deputy District Attorney, . . . [appellant] was asked to explain his prior inconsistent statement made at the May 31, 2012 parole suitability hearing, to the effect, ‘I knew he [Garcia] had a gun. I was afraid that he would shoot me.’ [Appellant] admitted making that statement, but insisted he ‘was lying,’ as he as trying to ‘minimize his role.’ . . . [Appellant] also admitted that he presently has a gang tattoo on his back.”

DISCUSSION

Appellant contends the trial court erred in declining to exclude his testimony at his 2015 parole suitability hearing because such testimony is subject to use immunity and is not voluntary. He contends that Myles, supra, 69 Cal.App.5th 688, which concludes otherwise, was wrongly decided. We agree with Myles.

In 2018, the Legislature amended the felony murder and the natural and probable consequences doctrines to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. (Stats. 2018, ch. 1015, § 1, subd. (f); People v. Gentile (2020) 10 Cal.5th 830, 842.) The Legislature then amended sections 188 and 189, and added section 1170.95, to provide a procedure to persons previously convicted of murder pursuant to the felony murder or natural and probable consequences theories to obtain retroactive relief. (Gentile, at p. 853 [“the Legislature intended section 1170.95 to be the exclusive avenue for retroactive relief under Senate Bill [No.] 1437”].) To be eligible for resentencing, a defendant must establish that he “could not presently be convicted of murder . . . because of changes to Section 188 or 189 made effective” as part of Senate Bill No. 1437. (§ 1170.95, subd. (a)(3).)

Section 1170.95, subdivision (a) states that a person convicted of felony murder or murder under the natural and probable consequences doctrine may petition for resentencing “when all of the following conditions apply: [¶] (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 . . . . [¶] (2) The petitioner was convicted of murder . . . following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted of murder . . . . [¶] (3) The petitioner could not be convicted of murder . . . because of changes to Section 188 or 189 made effective January 1, 2019.” If the petitioner makes “‘a prima facie showing’” of entitlement to relief, “the trial court issues an order to show cause, and then must hold a hearing ‘to determine whether to vacate the murder 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.’” (People v. Lewis (2021) 11 Cal.5th 952, 960; § 1170.95, subd. (c).) If the matter proceeds to an evidentiary hearing, the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is not entitled to resentencing. (§ 1170.95, subd. (d)(3).) At the evidentiary hearing, “the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law” and “[t]he prosecutor and the petitioner may . . . offer new or additional evidence to meet their respective burdens.” (Ibid.)

In Myles, appellant Myles asserted (as appellant does here) that People v. Coleman (1975) 13 Cal.3d 867 (Coleman) compelled the conclusion “that statements made in a parole suitability hearing . . . should be inadmissible as substantive evidence of guilt.” (Myles, supra, 69 Cal.App.5th at p. 705.) The court in Coleman held that a defendant’s statements at a probation revocation hearing cannot be used against him at a subsequent criminal trial. (Coleman, at p. 889.) “The court reasoned that a defendant should not be compelled to choose between the privilege against self-incrimination at trial and the exercise of the right to be heard at a probation revocation hearing. [Citation.] To resolve the tension between competing rights, the court created a ‘judicially declared exclusionary rule’ that a probationer’s revocation hearing testimony is inadmissible during the prosecution’s case-in-chief. [Citation.] The intent of the rule ‘is to encourage the fullest possible truthful disclosure of relevant facts and circumstances at the revocation hearing by allowing a probationer who does testify at his revocation hearing nonetheless to enjoy unimpaired the full protection of the privilege against self-incrimination at his subsequent trial.’ [Citation.]” (Myles, at p. 705.)

Myles cited cases in which the rule established in Coleman has been extended to other contexts, but the court deemed those cases inapposite. The court reasoned: “The Fifth Amendment privilege against self-incrimination protects persons from being compelled by ‘“governmental coercion”’ to serve as witnesses against themselves in ‘“any criminal case.’” [Citation.] A section 1170.95 hearing, however, ‘“is not a trial de novo on all the original charges.” [Citation.] Rather, it is a postconviction proceeding “due to the Legislature’s inclusion of section 1170.95 in Senate Bill No. 1437 . . . , [as] an ‘act of lenity’ [citation], allowing for the retroactive application of the new law governing accomplice liability for felony murder [citation] for defendants already serving valid sentences for murder.”’ [Citations.] Because a sentence modification under section 1170.95 is an act of lenity and not a criminal trial, the wrongful admission of evidence does not implicate defendant’s constitutional rights under the Fifth Amendment.” (Myles, supra, 69 Cal.App.5th at pp. 705-706.) The court further reasoned that “the Fifth Amendment protects individuals from government coercion. Here, defendant was not compelled to file a section 1170.95 petition, nor to testify at her parole hearing, nor to participate in her risk assessment interview.” (Ibid.)

We agree with Myles. Appellant’s attempts to discredit Myles are unavailing. In any event, any error in admitting appellant’s parole suitability hearing testimony was harmless because it is not reasonably probable that appellant would have achieved a more favorable result had the evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836; Myles, supra, 69 Cal.App.5th at p. 706.) Even if the standard for constitutional error applies (Chapman v. California (386 U.S. 18, 24 [17 L.Ed.2d 705]), the error was harmless beyond a reasonable doubt. In adjudicating appellant’s motion, the trial court credited the witnesses’ testimony at the preliminary hearing and reasoned that “[e]ven if the court gives some credence to [appellant’s] less than compelling and more than inconsistent version of events as detailed at the April 15, 2015 parole suitability hearing, the totality of evidence before this court, reviewed with a strong dose of common sense, indicates beyond a reasonable doubt that [appellant] harbored malice aforethought as a direct aided and abettor at the time the killing occurred.” (Italics omitted.)

Contrary to appellant’s claim, the preliminary hearing testimony overwhelmingly demonstrated that he was the driver of the vehicle involved in the shooting. We agree with the People that in light of the eyewitness testimony presented at the preliminary hearing, “there was no plausible explanation for what occurred other than that appellant and Garcia shared the same criminal purpose of committing a drive-by murder.” Any error in admitting appellant’s parole suitability hearing testimony was thus harmless regardless of the standard of review.

DISPOSITION

The order denying appellant’s section 1170.95 petition is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J. TANGEMAN, J.

Patricia L. Kelly, Judge

Superior Court County of Santa Barbara

______________________________

David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pitney, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Idan Ivri, Deputy Attorney General, for Plaintiff and Respondent.

[1] All statutory references are to the Penal Code.