Opinion
B327312
05-08-2024
THE PEOPLE, Plaintiff and Respondent, v. CHARLES MICHAEL BENDER, Defendant and Appellant.
Brad Kaiserman, under appointment by the Court of Appeal, for Defendant and Appellant Charles Michael Bender. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Scott A. Taryle, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. VA007586, Raul A. Sahagun, Judge. Affirmed.
Brad Kaiserman, under appointment by the Court of Appeal, for Defendant and Appellant Charles Michael Bender.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Scott A. Taryle, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
FEUER, J.
Charles Michael Bender appeals from a postjudgment order denying his petition for resentencing under Penal Code section 1170.95 (now section 1172.6) with respect to his 1991 conviction of first degree murder. Following an evidentiary hearing, the superior court found beyond a reasonable doubt that Bender was the actual killer and therefore did not qualify for resentencing. On appeal, Bender contends the court erred by admitting statements Bender made to a psychologist during a 2017 comprehensive risk assessment prepared for a parole hearing. We affirm.
Further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Conviction
On the night of April 12, 1991 Lloyd Revels was fatally shot while standing in front of a house in Los Angeles. Revels was shot three times, with two of the wounds being life threatening. It was determined all three bullets were fired from the same caliber weapon. The only bullet removed from Revels's body was fired from a .380 semiautomatic weapon. Just after the shooting, police officers were driving nearby and saw Bender, Sheldon Cotton, and Charles Clark running down the street, each holding a gun. The officers observed Bender throw an object over a fence. The officers later recovered a .380 caliber semiautomatic weapon from the area where Bender was seen throwing an object. The gun was identified as the murder weapon.
Because the prosecutor at the evidentiary hearing relied on the transcript from Bender's 1991 trial without calling any additional witnesses, we incorporate the summary of facts elicited at trial from our prior opinion in People v. Bender (Sept. 22, 1993, B064459) [nonpub. opn.].
According to Cotton, who testified at Bender's trial, Bender was a member of the Kitchen Crips gang. Two days before the murder of Revels, an associate of the Kitchen Crips gang was killed. On April 12, 1991 Cotton, Bender, and Clark entered rival gang territory to retaliate for the killing of their associate with a plan to shoot any rival gang members they saw. Bender was armed with a .380 semiautomatic weapon. The men encountered a group of people standing in front of a house. Bender approached the group, which included Revels, while Cotton and Clark stood across the street. Bender started shooting into the group after which Cotton and Clark also started shooting. The three men then ran away.
Two eyewitnesses testified it was not Bender who shot Revels. Bender testified he was at a party at the time of the shooting, and he called two witnesses who corroborated his alibi.
The trial court instructed the jury with CALJIC No. 3.01 on direct aider and abettor liability and CALJIC No. 3.02 on the natural and probable consequences doctrine. The jury convicted Bender of the first degree murder of Revels (§ 187, subd. (a)) and found true the special allegation Bender personally used a firearm (§ 12022.5, former subd. (a)). The trial court sentenced Bender to an indeterminate state prison term of 25 years to life on the murder count, plus the upper term of five years for the firearm enhancement. We affirmed the conviction on appeal. (People v. Bender, supra, B064459.)
Clark was tried jointly with Bender. The jury also convicted Clark of first degree murder and found true the special allegation he had personally used a firearm.
B. The Petition for Resentencing
On May 4, 2020 Bender, representing himself, filed a form petition for resentencing pursuant to former section 1170.95. Bender checked the boxes on the form indicating he was eligible for relief because he had been convicted of murder pursuant to the felony murder rule or the natural and probable consequences doctrine and he could not now be convicted of murder based on changes to the law. He also checked boxes on the form indicating he was not the actual killer and did not act with the intent to kill. He requested appointment of counsel. After appointing counsel and receiving memoranda from the parties, the superior court denied the petition, finding Bender failed to make a prima facie showing of eligibility for relief because there was "pretty strong" evidence Bender was either the actual killer or a direct aider abettor.
We reversed the order denying Bender's petition, explaining the superior court engaged in factfinding improper at the prima facie review stage. (People v. Bender (Nov. 9, 2021, B309693) [nonpub. opn.].) We remanded the matter with directions to the superior court to issue an order to show cause and to conduct further proceedings in accordance with former section 1170.95, subdivision (d).
C. The Evidentiary Hearing
The superior court on remand issued an order to show cause on December 13, 2021 and set the matter for an evidentiary hearing. On October 24, 2022 the court held a hearing to address the admissibility of evidence sought to be introduced by the prosecution at the evidentiary hearing of statements Bender made to a psychologist in January 2017 as part of a comprehensive risk assessment prepared by the psychologist for an upcoming parole hearing.
According to the risk assessment, at the outset of the interview the psychologist "informed [Bender] that the interview was not confidential, that he had a right not to participate in the examination, and that a written report would be submitted to the [Board of Parole Hearings]. He appeared to understand the nature of the evaluation and the possible consequences of the interview." The prosecution specifically sought to admit one paragraph of the 11-page assessment in which the psychologist recorded Bender's explanation of what happened on the night of the murder. Bender stated he, Cotton, and Clark decided to retaliate for the murder of their friend a few days earlier. They drove into rival gang territory "to get any one from their gang." Bender walked up to someone while Cotton and Clark waited across the street. Bender stated: "I started shooting the guy, I shot him four times in the back. They started shooting too. We started running.... I threw my gun. I shot him four times, and one was fatal. It was retaliation of a gang murder."
Bender's counsel objected to admission of the risk assessment on the grounds it was inadmissible hearsay. The superior court overruled the objection, finding Bender's statements to the psychologist were admissible as party admissions under Evidence Code section 1220 and the assessment itself was admissible as an official record under section 1280.
Bender's counsel also objected that the statement was involuntary and untrustworthy because prisoners have an "unwritten" but "well-known understanding" that they must admit guilt in order to have a chance at being paroled. The superior court overruled this objection as well, stating the issue went to weight, not admissibility, and Bender was free to testify at the hearing to explain his statements.
The evidentiary hearing took place on November 21, 2022. The prosecution introduced the transcript from Bender's 1991 trial and the portion of the 2017 risk assessment in which Bender described the murder. Bender did not present any additional evidence. After hearing argument of counsel and reviewing the evidence submitted, the court found beyond a reasonable doubt that Bender was the actual killer and denied the petition. The court explained its finding was based on three factors. First, Cotton testified that Bender was closer to Revels and starting shooting first. Second, the murder weapon was found in the area where Bender threw his weapon. And third, the court stated, "I think it's extremely important that I have the defendant's statement that he admits doing it....And I think the evidence was very, very strong. Very, very strong that indeed Mr. Bender was the killer in this case."
Bender timely appealed.
DISCUSSION
A. Senate Bill 1437 and Section 1172.6
Senate Bill 1437 eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and significantly limited the scope of the felony-murder rule. (People v. Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis (2021) 11 Cal.5th 952, 957; People v. Gentile (2020) 10 Cal.5th 830, 842-843, 847-848; see People v. Reyes (2023) 14 Cal.5th 981, 984.) Section 188, subdivision (a)(3), now prohibits imputing malice based solely on an individual's participation in a crime and requires proof of malice to convict a principal of murder, except under the revised felony-murder rule as set forth in section 189, subdivision (e). (Reyes, at p. 986; Gentile, at pp. 842-843.) Section 189, subdivision (e), now requires the People to prove specific facts relating to the defendant's individual culpability: The defendant was the actual killer (§ 189, subd. (e)(1)); although not the actual killer, the defendant, with the intent to kill, assisted in the commission of murder in the first degree (§ 189, subd. (e)(2)); or the defendant was a major participant in an underlying felony listed in section 189, subdivision (a), and acted with reckless indifference to human life as described in section 190.2, subdivision (d) (the felony-murder special-circumstance provision) (§ 189, subd. (e)(3)). (See Strong, at p. 708.) Senate Bill No. 775 (20212022 Reg. Sess.) (Stats. 2021, ch. 551, § 2), effective January 1, 2022, applied Senate Bill 1437's ameliorative changes to individuals convicted of attempted murder and voluntary manslaughter. (See § 1172.6, subd. (a).)
Senate Bill 1437 also provided a procedure (now codified in section 1172.6) for an individual convicted of felony murder or murder under the natural and probable consequences theory to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if the individual could not have been convicted of murder under Senate Bill 1437's changes to sections 188 and 189. (People v. Lewis, supra, 11 Cal.5th at p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.)
If the section 1172.6 petition contains all the required information, including a declaration by the petitioner that he or she is eligible for relief based on the requirements of subdivision (a), the sentencing court must appoint counsel to represent the petitioner upon his or her request pursuant to section 1172.6, subdivision (b)(3). Where a petitioner makes the requisite prima facie showing the petitioner falls within the provisions of section 1172.6 and is entitled to relief, the court must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and resentence the petitioner on any remaining counts. (§ 1172.6, subds. (c) &(d)(1).)
Section 1172.6, subdivision (d)(3), provides that at the evidentiary hearing, "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 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." Further, "[t]he prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens." (§ 1172.6, subd. (d)(3).) We review the superior court's decision to deny the petition after an evidentiary hearing for substantial evidence, provided the court understood the elements of the offense and applied the proper standard and burden of proof. (People v. Reyes, supra, 14 Cal.5th at p. 988; People v. Vargas (2022) 84 Cal.App.5th 943, 951.)
B. The Superior Court Properly Considered the Comprehensive Risk Assessment
1. The psychotherapist-patient privilege
The psychotherapist-patient privilege, as defined in Evidence Code section 1014, allows a patient to prevent disclosure of "a confidential communication between patient and psychotherapist." A "confidential communication" means "information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation, or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the psychotherapist is consulted, and includes a diagnosis made and the advice given by the psychotherapist in the course of that relationship." (Evid. Code, § 1012.)
The privilege may be waived "if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has legal standing and the opportunity to claim the privilege." (Evid. Code, § 912, subd. (a).)
Under Evidence Code section 917, subdivision (a), once a patient-psychotherapist relationship is established, it is presumed that all communications between the two persons are intended to be confidential and the party opposing the privilege has the burden of proving a communication was not made in confidence. (See People v. Nieves (2021) 11 Cal.5th 404, 432 ["A person invoking the psychotherapist-patient privilege has the initial burden of showing that the privilege is presumptively applicable. The burden then shifts to the party seeking disclosure to establish that the privilege is inapplicable."].)
2. Bender forfeited his claim of privilege
Bender contends the superior court erred in admitting his statements to the psychologist during the comprehensive risk assessment because the statements were protected by the psychotherapist-patient privilege. However, Bender failed to object on that ground in the trial court-he objected only on the basis of hearsay and that the statements were involuntary. Accordingly, he forfeited his claim of error based on confidentiality. (See Evid. Code, § 353, subd. (a) [a finding shall not be reversed based on an erroneous admission of evidence unless there was a timely motion to exclude stating the specific ground of the objection]; People v. Duran (2022) 84 Cal.App.5th 920, 928 (Duran) ["[b]ecause defendant did not object to the admission of his 2013 statement on either ground that he now advances on appeal . . . he has forfeited these arguments"]; People v. Partida (2005) 37 Cal.4th 428, 434-435 [an evidentiary objection made on one ground in a trial court does not preserve a challenge based upon a different ground in an appellate court].)
3. Bender has not met his burden to show ineffective assistance of counsel
Bender contends his attorney provided ineffective assistance of counsel by failing to object to admission of the risk assessment on the basis of the psychotherapist-patient privilege.To prevail on a claim of ineffective assistance of counsel, a defendant bears the burden to show "'"(1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant."'" (People v. Rices (2017) 4 Cal.5th 49, 80; accord, People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 806; see Strickland v. Washington (1984) 466 U.S. 668, 687-692.)
As the Supreme Court has explained, "there is no federal constitutional right to counsel under subdivision (c) of section 1172.6, and the right to counsel at that point in the proceedings is purely statutory." (People v. Delgadillo (2022) 14 Cal.5th 216, 227.) However, the Supreme Court observed that a "defendant can have a constitutional due process right to the appointment of counsel in habeas corpus or coram nobis proceedings after a defendant establishes a prima facie case for postconviction relief." (Id. at p. 228.) Because no order to show cause issued in Delgadillo, the court did not address whether a due process right to counsel attaches after a defendant has made a prima facie case for relief in the section 1172.6 context. (Ibid.) At least one appellate court has held a defendant has a right to effective of assistance of counsel on due process grounds at this stage in the proceedings. (See People v. Foley (2023) 97 Cal.App.5th 653, 659-660 [finding an evidentiary hearing pursuant to section 1172.6, subdivision (d) is "similar to a postconviction habeas corpus proceeding where the appointment of counsel is demanded by due process concerns if the petition attacking a judgment's validity states a prima facie case leading to an order to show cause"].) We need not determine whether a due process right to counsel exists here because, even if it does, Bender's counsel was not ineffective.
A court reviewing a claim of ineffective assistance of counsel "begin[s] with the presumption that counsel's actions fall within the broad range of reasonableness, and afford[s] 'great deference to counsel's tactical decisions.'" (People v. Mickel (2016) 2 Cal.5th 181, 198; accord, People v. Lewis (2001) 25 Cal.4th 610, 661 ["Because we accord great deference to trial counsel's tactical decisions, counsel's failure to object rarely provides a basis for finding incompetence of counsel."].) Further, where an objection to admission of evidence would have been unsuccessful, the failure to raise the objection does not constitute ineffective assistance. (See People v. Anderson (2001) 25 Cal.4th 543, 587 [counsel not ineffective for failing to make futile or unmeritorious objections]; People v. Memro (1995) 11 Cal.4th 786, 834 [same].)
Here, even if Bender's counsel had objected to admission of Bender's statements in the risk assessment based on the psychotherapist-patient privilege, the objection would have been unmeritorious. As discussed, the privilege applies only to "confidential communications" between a psychotherapist and a patient, which requires the communication be made "in confidence by a means which, so far as the patient is aware, discloses the information to no third persons." (Evid. Code, § 1012.) Bender was told at the outset of his risk assessment interview that his communications were not confidential and that a report of the interview would be given to the parole board. Accordingly, he had no expectation of confidentiality, and the privilege did not apply. (See Y.C. v. Superior Court (2021) 72 Cal.App.5th 241, 258-259 [minor's statement to therapist during intake assessment for juvenile first-time offenders was not confidential where therapist informed juvenile that his statements would be shared with probation department and court]; In re The Clergy Cases I (2010) 188 Cal.App.4th 1224, 1239-1241 [friars' statements to psychotherapists as part of internal investigations were not confidential where friars were aware psychotherapists would share reports with Franciscan governing body].)
Bender argues he "had no awareness" his statements to the psychologist could be used during any proceeding other than his 2017 parole board hearing, and therefore, any waiver of the privilege in this case constituted "a limited waiver for the specific purpose of parole related matters." But, as discussed, disclosure of the statements to the parole board (with his knowledge) meant the statements were not privileged under the psychotherapistpatient privilege.
C. The Admission of Bender's Statements Did Not Violate His Fifth Amendment Right Against Self-incrimination
Bender contends admission of the statements he made during the 2017 risk assessment violated his right against selfincrimination based on the use-immunity rule articulated in People v. Coleman (1975) 13 Cal.3d 867 (Coleman) and its progeny. We decline to extend Coleman to section 1172.6 evidentiary hearings.
In Coleman, the Supreme Court held a defendant's statement at a probation revocation proceeding was not admissible against him at trial to prove guilt on the related charges. (Coleman, supra, 13 Cal.3d at p. 889.) The court reasoned that a defendant should not be forced to choose between the privilege against self-incrimination at trial and the right to be heard at a probation revocation hearing. (Id. at p. 878.) To alleviate the tension between these competing rights, the court fashioned a "judicial rule of evidence" that a probationer's revocation hearing testimony is inadmissible during the prosecution's case-in-chief "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." (Id. at pp. 879, 892.)
As Bender recognizes, the Courts of Appeal that have addressed the issue have uniformly rejected the argument that Coleman should be extended to bar use of a defendant's statements made during a parole eligibility hearing in a later evidentiary hearing under section 1172.6. (See Duran, supra, 84 Cal.App.5th at pp. 930-932; People v. Mitchell (2022) 81 Cal.App.5th 575, 586-590; People v. Anderson (2022) 78 Cal.App.5th 81, 93; People v. Myles (2021) 69 Cal.App.5th 688, 705 (Myles).)
In Myles, the Court of Appeal concluded Coleman did not require exclusion from an evidentiary hearing of the defendant's statements made during a parole eligibility hearing, explaining that 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."'" (Myles, supra, 69 Cal.App.5th at p. 705.) By contrast, "a sentence modification under [former] section 1170.95 is an act of lenity and not a criminal trial." (Id. at pp. 705-706.) The court reasoned the Fifth Amendment's purpose to protect the defendant from government coercion was not implicated because the defendant "was not compelled to file a [resentencing] petition, nor to testify at her parole hearing ...." (Id. at p. 706.) Rather, where the defendant had chosen to "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." (Ibid.)
In Duran, supra, 84 Cal.App.5th at page 930, the court employed similar reasoning in holding that "the use of a defendant's statement at a subsequent section 1172.6 evidentiary hearing does not implicate the privilege against selfincrimination." The court explained, "Once a defendant's 'sentence has been fixed and the judgment of conviction has become final,' the 'general rule' is that 'there can be no further incrimination' and hence 'no basis for the assertion of the privilege.'" (Ibid., quoting Mitchell v. United States (1999) 526 U.S. 314, 326.) Unless and until the superior court grants the section 1172.6 petition, the petitioner's existing judgment of conviction and sentence remain presumptively authorized and intact throughout the evidentiary hearing. "This is no doubt why the panoply of rights that attach at trial do not apply during a section 1172.6 evidentiary hearing, such as the right to a jury trial or the protection against double jeopardy. [Citation.] As a result, use of a defendant's prior statements during such an evidentiary hearing does not implicate the privilege against self- incrimination, and Coleman's core rationale-and hence its holding-is not implicated." (Duran, at p. 931.)
Bender cites Mitchell v. United States, supra, 526 U.S. at page 326 for the proposition that even after a defendant is found guilty of a crime, the Fifth Amendment privilege against selfincrimination applies if a sentence has not yet been imposed. But here, the evidentiary hearing took place long after Bender's sentence was imposed and his case became final.
Bender offers no persuasive reason to depart from these cases nor any reason the same rationale should not apply to the use of statements contained in a comprehensive risk assessment. Accordingly, we conclude that Bender's statements appearing in the risk assessment were properly admitted into evidence and were not made inadmissible by the use-immunity doctrine.
DISPOSITION
The order denying Bender's petition for resentencing is affirmed.
We concur: SEGAL, Acting P.J. MARTINEZ, J.