Opinion
G062722
12-18-2023
THE PEOPLE, Plaintiff and Respondent, v. SHELVIN TERRELL JONES, Defendant and Appellant.
Michelle May Peterson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland and Steve Oetting, Assistant Attorneys General, Alan L. Amann and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Riverside County No. CR56219, Timothy F. Freer, Judge.
Michelle May Peterson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland and Steve Oetting, Assistant Attorneys General, Alan L. Amann and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DELANEY, J.
In 1996, Shelvin Terrell Jones was convicted of first degree murder of a 16-year-old boy. In 2019, Jones petitioned for resentencing under former Penal Code section 1170.95 (now section 1172.6). After issuing an order to show cause (OSC) and holding an evidentiary hearing, the trial court denied the petition, finding beyond a reasonable doubt he was the shooter. On appeal, Jones contends the ruling must be reversed because the court improperly considered his statements to a parole board psychologist and at a parole suitability hearing; the actual shooter finding was not supported by substantial evidence; and the court made hopelessly conflicting factual findings. We disagree and affirm the postjudgment order.
Effective June 30, 2022, section 1170.95 was renumbered section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.) All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
In 1994, one evening on her drive home, Air Force Reserve Officer Elizabeth Schwarthzoff saw four to six people chasing a boy on a bicycle. At a street intersection, the group knocked the boy off the bicycle and kicked and beat him. By the time Schwarthzoff stopped her car, only one individual was standing there, while the boy, later identified as Jermaine Johnson, was "laying in a ball, in the fetal position." Schwarthzoff saw the lone individual raise an arm, and then she heard six gunshots. Johnson died of multiple gunshot wounds.
Schwarthzoff saw the group leave in two cars, one brown and one blue. The shooter got into the brown car. She gave the police the blue car's license plate number and a partial number for the brown car. The brown car belonged to Romel Pace, who along with Jones and others, were riding in it that evening.
I. The Charges, the Trial, and the First Appeal
An amended information charged Jones, Pace, Christopher Felix, Germell Veal, Shamon Emanuel, and Damecus Taylor with Johnson's murder (§ 187; count 1). The information also alleged Jones personally used a firearm (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)) and had a prior conviction for felony robbery (§§ 211, 667, subd. (a)).
Jones, Pace, Felix, and Taylor were members of gangs affiliated with the Bloods. Veal and Emanuel, while not gang members themselves, hung out with them. Veal and Pace are cousins, and Veal and Emanuel were best friends. At some point before Jones's trial, Pace, Veal, and Emanuel pleaded guilty to voluntary manslaughter in exchange for testifying at the trial. Felix and Taylor did not testify, and the appellate record sheds no light on the dispositions of their charges.
For the most part, Pace, Veal, Emanuel, and Zha Zha Lambie (Pace's girlfriend) testified consistently about why Johnson was targeted. Earlier that evening, they, along with Jones and others, were at a party where Pace fought with a Crip gang member and was knocked to the ground. Pace and his group loaded into two cars, one brown and one blue, and left the party. Pace was upset because none of his friends had helped him in the fight and instead were teasing him for getting knocked down. After a brief stop at McDonald's, the cars continued driving. In the brown car were Veal (the driver) with Pace and Lambie in the front, and Jones and three others in the back. According to Veal, Jones said he wanted to get a Crip, and others agreed. They spotted two boys on bicycles. One of the boys was Johnson, and he was wearing a blue bandana.
At Pace's direction, the cars followed Johnson to the intersection, where he was beaten and killed. Jones, Pace, Veal, Emanuel, and others beat Johnson. According to Pace, Veal, Emanuel, and Lambie, Jones shot Johnson. Pace testified he gave his gun to Jones when he asked for it at the McDonald's stop. All four also testified Pace was in the front passenger seat of the brown car when they left the scene.
Schwarthzoff testified she saw the shooter get into the right side of a brown car. But she couldn't recall whether it was the front or back passenger door. Nor could she recall whether she told the detective who interviewed her at the scene that the shooter got into the front passenger door, even after reviewing his report. After reviewing his own report, the detective also couldn't recall whether Schwarthzoff used the words "front passenger," noting the interview occurred about two years ago. He testified his report indicated Schwarthzoff had identified front passenger seat.
The jury was instructed on two ways it could convict Jones of first degree murder. (CALJIC Nos. 3.00-3.02, 8.10-8.11, 8.20.) They could find either that Jones was the direct perpetrator (CALJIC No. 3.00) or that he aided and abetted in the assault, a co-principal in the assault murdered Johnson, and murder was a natural and probable consequence of the commission of the crime of assault (CALJIC Nos. 3.00, 3.02). The jury was also instructed on second degree murder and the firearm and gang enhancements.
The jury found Jones guilty of first degree murder (§ 187; count 1) and found true he committed murder for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)). The jury deadlocked on the firearm enhancement allegation, and a mistrial was declared. The court later found true the prior offense allegation. In 2016, Jones was sentenced to a total of 33 years to life in prison. He appealed the judgment, which was affirmed (People v. Jones (Oct. 21, 1997, case no. E017782) [nonpub. opn.] (Jones)).
The allegation was stricken at sentencing.
II. The Resentencing Proceedings
In 2019, Jones petitioned for resentencing pursuant to section 1172.6. In his supporting declaration, he declared he "was not the actual killer."
Ultimately, the trial court found Jones had made a prima facie showing and set an OSC hearing. Jones's OSC brief argued there was no evidence he was the actual killer. Jones pointed out that all trial witnesses who identified him as the shooter were biased and Schwarthzoff, the only other percipient witness, did not actually identify Jones as the shooter. According to Jones, Schwarthzoff testified the shooter got into the front passenger seat of the brown car, but everyone else-Pace, Veal, Emanuel, and Lambie- testified Pace was in that seat.
In opposition, the prosecution submitted copies of a 2016 comprehensive risk assessment prepared by a parole board psychologist, the reporter's transcript of Jones's 2017 parole suitability hearing, the unpublished opinion for the first appeal, and the reporter's transcript and clerk's transcript in the first appeal. According to the risk assessment, Jones told the psychologist, "'I was trying to shoot him (victim) in the rear end. I'm not sure how many times I shot him. One (shot) was close up and the others were from a distance.'" Jones said Pace had given him the gun about five minutes prior. Jones said he "'was very drunk. I'm not sure why he [Pace] gave it to me.'" At the parole suitability hearing, Jones stated that after Johnson's beating, "I pulled out a gun and shot them."
According to the master index, the reporter's transcript is 1136 pages long. The copy submitted to the trial court ends at page 951; it includes all witness testimony, but not closing argument, closing jury instructions, the verdict, or sentencing.
At the hearing, the trial court took judicial notice of the unpublished opinion. The court stated it had considered the trial testimonies of Schwartzhoff, Lambie, Veal, Emanuel, Pace, and others. The court also reviewed the parole suitability hearing transcript and the comprehensive risk assessment report. The court considered all the CALJIC instructions given in the case. Jones did not object to the court's consideration of these filings. When asked for any additional evidence the court should consider, the parties replied "no."
Defense counsel, however, argued the parole related statements "should be taken with caution, because people who are potentially eligible for parole, they're encouraged to admit any wrongdoing so they can get parole early. And I would suggest that that would be the only reason he would admit to being the shooter in those hearings."
III. The Ruling
After hearing the parties' arguments, the trial court stated it had "made some notes" and had "a pre-prepared statement." The court began by reciting the facts from the unpublished decision of Jones, supra, E017782.
The court proceeded to set forth the "[n]oteworthy trial testimony" it considered, beginning with Schwarthzoff's testimony, which it described as "especially powerful." Schwarthzoff saw only one person standing over Johnson when he was lying on the ground in the fetal position. She saw the person raise his arm and heard six shots, though she could not see the gun. According to Schwarthzoff, the shooter "got into the brown car on the passenger side," although at trial she could not remember whether it was the front or back door. According to Deputy Werges, Schwarthzoff told him the shooter was in the front passenger seat. According to Lambie, Jones was in the back passenger seat. Pace, Lambie, and Veal testified they saw Jones shoot. Pace further testified he gave Jones the gun at McDonald's. And Veal also testified that later that night, Jones said he shot the victim.
Our summary of the court's description of trial testimony is limited to facts relevant to the actual shooter issue.
The trial court noted defense counsel's "caution . . . about what people say at parole hearings," and then summarized Jones's statements during the risk assessment and at the parole suitability hearing, including his admissions he shot Johnson.
Finally, the trial court denied the petition, finding beyond a reasonable doubt Jones committed willful, deliberate, and premeditated murder. It explained: "The [c]ourt does believe beyond a reasonable doubt the defendant was the actual shooter. The number of shots that were fired, the fact that one of the gang members that the defendant associated with was either disrespected or humiliated and they wanted to commit some sort of revenge or retaliation in response to that, the individual sought out individuals. Unfortunately for the individuals, they were not gang members but two boys dressed in blue clothing, and hunted them down, and then with willful, deliberate, and premeditation, the defendant, after a gang beating where the rest of the individuals ran to the car, the defendant stayed behind and executed a number of shots, one of them which proved to be fatal."
DISCUSSION
Jones challenges the trial court's finding he was the actual shooter. Jones contends reversal is required because the court improperly considered statements he made to a parole board psychologist and at a parole board hearing, its "actual shooter" finding was not supported by substantial evidence, and it made hopelessly conflicting factual findings. We disagree.
I. Governing Law and Standard of Review
Because this case does not concern a potential conviction under the felonymurder rule (§ 189), we limit our discussion of section 1172.6 to "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." (§ 1172.6.) Effective January 1, 2019, the Legislature amended section 188 and eliminated the doctrine of natural and probable consequences as a viable theory for murder liability. (People v. Strong (2022) 13 Cal.5th 698, 707, fn. 1; § 188, subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2.) Section 1172.6 provides a mechanism for "convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (People v. Lewis (2021) 11 Cal.5th 952, 957.)
If the petitioner makes a prima facie showing of entitlement to relief, the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner on any remaining counts. (§ 1172.6, subds. (c) &(d)(1).) At the hearing, the court may consider evidence admitted at any prior hearing or trial that is admissible under current law, or any new or additional evidence submitted by the parties. (§ 1172.6, subd. (d)(3).) The prosecution has the burden "to prove, beyond a reasonable doubt, that the petitioner is guilty of murder . . . under California law as amended by the changes to Section 188." (§ 1172.6, subd. (d)(3).) "[T]he superior court acts as an independent fact finder in determining whether the People have met their burden." (People v. Vargas (2022) 84 Cal.App.5th 943, 951.)
"Ordinarily, a trial court's denial of a section 1172.6 petition is reviewed for substantial evidence. [Citation.] Under this standard, we review the record '"'in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'"'" (People v. Reyes (2023) 14 Cal.5th 981, 988.) II. Jones's Parole Related Statements
Jones argues his parole board statements were wrongly admitted at the section 1172.6 hearing, for two reasons. First, their admission violated his Miranda right against compelled self-incrimination under the Fifth Amendment. According to him, the risk assessment examination and the parole suitability hearing were "custodial interrogations" requiring Miranda warnings pursuant to the Fifth Amendment. Because no such warnings were given to him, Jones argues his statements cannot be used against him in the section 1172.6 proceeding. Second, the statements were inadmissible at the hearing as evidence of his guilt, under People v. Coleman (1975) 13 Cal.3d 867 (Coleman). Assuming Jones did not forfeit these arguments by failing to object below, we join our fellow appellate courts in rejecting them.
Miranda v. Arizona (1966) 384 U.S. 436.
A. The Fifth Amendment
"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."'" (People v. Myles (2021) 69 Cal.App.5th 688, 705 (Myles).) But a section 117.26 hearing "'"is not a trial de novo on all the original charges."'" (Myles, at p. 705.) It is "'"a postconviction proceeding'"" and ""'an 'act of lenity'"'" by the Legislature. (Id. at pp. 705-706.) "Because a sentence modification under section [1172.6] 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 at p. 706.)
"Moreover, the Fifth Amendment protects individuals from government coercion." (Myles, supra, 69 Cal.App.5th at p. 706.) But Jones's statements cannot be considered coerced or involuntary per se because he was "not compelled to file a [section 1172.6] petition, nor to testify at [his] parole hearing, nor to participate in [a] risk assessment interview." (Ibid.) Indeed, "parole cannot be conditioned on admission of guilt to a certain version of the crime." (Ibid.; § 5011, subd. (b); Cal. Code Regs., tit. 15, § 2236.) Having chosen to participate in the assessment interview and testify at the parole hearing, "it is not fundamentally unfair to admit that information during a resentencing proceeding voluntarily initiated by defendant bearing on some of the same issues." (Myles, at p. 706.)
Although Jones argues Myles was wrongly decided, Courts of Appeal have continued to endorse its rationale, as do we. (People v. Duran (2022) 84 Cal.App.5th 920, 928-932 (Duran); People v. Mitchell (2022) 81 Cal.App.5th 575, 588-590 (Mitchell); People v. Anderson (2022) 78 Cal.App.5th 81, 89-93 (Anderson).)
B. Coleman Use Immunity
"In Coleman, the California Supreme Court held a defendant's statement from a probation revocation proceeding could not be used against him by the prosecution to lighten its burden of proof at trial. [Citation.] The [C]ourt 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 selfincrimination at his subsequent trial.'" (Myles, supra, 69 Cal.App.5th at p. 705.)
Courts have consistently refused to apply the Coleman use immunity doctrine in the context of a section 1172.6 proceeding. (Duran, supra, 84 Cal.App.5th at p. 930; Mitchell, supra, 81 Cal.App.5th at pp. 588-590; Anderson, supra, 78 Cal.App.5th at pp. 89-93; Myles, supra, 69 Cal.App.5th at pp. 704-706.) "By its plain text, the privilege applies only during a 'criminal case' or 'cause.' (U.S. Const., 5th amend.; Cal. Const., art. I, § 15; Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704, 714 [privilege applies where person 'reasonably believes the answers might incriminate him or her in a criminal case' (italics added)].) 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.' [Citations.]" (Duran, at p. 930.) The purpose of a section 1172.6 hearing is for the trial court to determine whether the sentence should be recalled; until then, the judgment of conviction and sentence remain presumptively valid. "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. (Mitchell, supra, 81 Cal.App.5th at pp. 588-589 [collecting cases].) 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.)
We thus conclude Jones's statements during the risk assessment and at the parole suitability hearing did not violate the Fifth Amendment and were not made inadmissible under Coleman. Given our ruling, we need not address whether Jones may assert this issue on appeal despite his trial counsel's failure to object to admission of his statements, whether such failure constituted ineffective assistance of counsel, or whether Jones may claim ineffective assistance of counsel in the context of a section 1172.6 hearing.
III. Substantial Evidence and Alleged Contradictory Findings
Jones contends there was insufficient evidence he was the actual shooter. He also argues the trial court made two contradictory factual findings: (1) Jones was the actual shooter, and (2) Schwarthzoff was especially credible. He argues these findings are irreconcilable because Schwarthzoff identified Pace-not Jones-as the shooter. Not so.
Under a substantial evidence review, "[i]t is well settled that the [factfinder] has wide latitude to believe or disbelieve witnesses, or even specific portions of their testimony, as it sees fit. '"[T]he [factfinder] properly may reject part of the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses thus weaving a cloth of truth out of selected available material."'" (In re Lopez (2023) 14 Cal.5th 562, 591 (Lopez).) "We do not reweigh the evidence or resolve conflicts in the testimony when determining its legal sufficiency." (People v. Garcia (2020) 46 Cal.App.5th 123, 145 (Garcia).)
There was substantial, albeit conflicting, evidence from which the trial court could find Jones to be the shooter. The court stated it considered the following: Schwarthzoff testified, "[t]he shooter then got into the brown car on the passenger side, though at trial she could remember - - she could not remember if it was the front or back door." Deputy Werges "'testified that he interviewed Ms. Schwartzhoff, and she told him the shooter got into the front passenger seat.'" Lambie testified Jones got in the back passenger side door, but she also identified Jones as the shooter. After the first shot, Veal "heard four to five more shots coming from where they were and saw that [Jones's] arm was extended at the victim." Veal also testified that later that night "Jones said he shot the victim." Pace testified he had given Jones the gun at McDonald's and saw Jones fire four to five shots. And Jones admitted to being the shooter during his parole board risk assessment and suitability hearing.
After reciting this noteworthy evidence, the trial court "[found] beyond a reasonable doubt[, based on] an independent de novo review, the defendant committed the crime of willful, deliberate, and premeditated murder." The court stated it highlighted the witnesses it considered as "very strong witnesses" and pointed out "Schwartzhoff was a neutral witness, not related to anybody or anything with respect to the case. She identified one person that committed the actual shooting, and the remaining codefendants who did testify on the case all indicated it was the defendant." The court found "beyond a reasonable doubt" Jones was the actual shooter. The court noted that "after a gang beating where the rest of the individuals ran to the car, the defendant stayed behind and executed a number of shots, one of them which proved to be fatal." These facts were supported by the evidence and together are enough to support the actual shooter finding.
For the findings to be hopelessly irreconcilable, the court would have had to have found the shooter got into the front passenger seat of the brown car and Pace was seated there. To be sure, substantial evidence existed for both findings. But after carefully reviewing the trial court's statements, we are not convinced it made either of those findings. The trial court based its actual shooter finding on evidence of two key facts: Schwarthzoff's testimony that a lone individual shot at Johnson and the remaining codefendants' testimony that Jones was the shooter. Although the court summarized the conflicting testimony about who sat where in the brown car, it did not expressly base the actual shooter finding on that evidence. By not addressing it, the court impliedly rejected the car seat evidence in favor of other evidence that Jones was the actual shooter. (See Lopez, supra, 14 Cal.5th at p. 591 [factfinder may believe or disbelieve portions of witness's testimony]; Garcia, supra, 46 Cal.App.5th at p. 145 [no reweighing of evidence or resolving conflicting testimony].)
In sum, substantial evidence supports the trial court's factual findings and ruling on the section 1172.6 petition.
DISPOSITION
The postjudgment order denying the section 1172.6 petition is affirmed.
WE CONCUR: O'LEARY, P. J. GOETHALS, J.