People v. Myles

Decision Date29 September 2021
Docket NumberA161450
PartiesTHE PEOPLE, Plaintiff and Respondent, v. ELNORA MYLES, Defendant and Appellant.
CourtCalifornia Court of Appeals

Superior Court of Alameda County, No. 150006 Trial Judge Morris Jacobson, Judge

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Rene A. Chacon and Juliet B. Haley, Deputy Attorneys General for Plaintiff and Respondent.

MARGULIES, J.

Defendant Elnora Myles appeals from the denial of her petition for resentencing pursuant to Penal Code[1] section 1170.95. After issuing an order to show cause and holding an evidentiary hearing, the trial court concluded defendant was not entitled to resentencing relief because she was not convicted under a theory of felony murder or murder under the natural and probable consequences doctrine, and because defendant was the actual killer. On appeal, defendant contends the trial court prejudicially erred by admitting and considering information contained in a parole comprehensive risk assessment report and the transcript of her parole suitability hearing because such evidence is not “new or additional evidence” within the meaning of section 1170.95, subdivision (d)(3). Alternatively, defendant contends the evidence was inadmissible because postplea admissions cannot be used to prove the elements of the crime, and because she should be entitled to use immunity for statements made in connection with her parole suitability hearing. We conclude the trial court did not err, but even if it did, any error was harmless under the circumstances of this case. Accordingly, we affirm.

I. BACKGROUND
A. The Murder and Defendant's Guilty Plea[2]

Defendant reported the victim, Cedric White, missing in February 2004. At the time, defendant was living in White's home. In April, police executed a search warrant in the home. They found White's body wrapped in cellophane and entombed beneath a basement workbench, hidden behind installed particleboard. An autopsy revealed signs of blunt trauma to his head. Police also found evidence that defendant had used White's identification to open a number of credit accounts in his name, with defendant as an authorized user. Purchases on the accounts totaled over $13, 000.

When defendant was questioned by police about White's whereabouts, she first indicated she had last seen him a week before, leaving in a cab with a lady friend, headed to China to celebrate the completion of his ‘Jazz history' book. In a letter to the probation department, the prosecutor represented that during one interview with police, defendant claimed White was killed by a fall down the stairs, which occurred during an argument with defendant. Defendant told police a female boarder was in White's house at the time of the argument “but [defendant] was vague about what [the boarder] saw or did.” When police interviewed the boarder, she “adamantly denied” being present.

On May 27, 2005, an information was filed charging defendant with murder (§ 187, subd. (a)), alleging that she personally inflicted great bodily injury (§ 1203.075). Defendant was also charged with identity theft (§ 530.5, subd. (a)), forgery (§ 470, subd. (d)), and four counts of making false financial statements (§ 532a, subd. (1)).

Defendant entered a plea of no contest to second degree murder in exchange for dismissal of the other charges and the great bodily injury allegation. Her counsel stipulated to a factual basis for the plea based on the preliminary examination and discovery. After unsuccessfully seeking to withdraw her plea, defendant was sentenced to 15 years to life in prison.

Defendant appealed, and we affirmed the judgment in a nonpublished opinion, People v. Myles, supra, A114630.

B. Defendant's Resentencing Petition

In January 2019, defendant filed a petition for resentencing under section 1170.95, seeking to vacate her 2006 second degree murder conviction and be resentenced. The trial court appointed counsel for defendant and set a briefing schedule. The prosecution filed a formal opposition to the petition and defendant filed a reply and supplemental briefing. The trial court found the petition established a prima facie case and issued an order to show cause.

The prosecution sought to admit defendant's statements from a comprehensive risk assessment report (parole risk assessment) and parole suitability hearing (parole hearing transcript). In the statements, defendant admitted killing White and specifically stated she hit him with a metal water bottle, entombed him in his own house, took advantage of things he owned, and lied to his family. Defendant said her boyfriend and children were not in the house when she hit White and her boyfriend “didn't have a role” in the murder. Defense counsel objected to the court's consideration of the parole risk assessment and parole hearing transcript, arguing the evidence was subject to use immunity, and even if it were admissible, it would be admissible only for impeachment purposes. The trial court ruled that use immunity did not apply and admitted the evidence.

At the conclusion of the section 1170.95 hearing, the trial court denied defendant's petition on two different grounds: “One, in review of the record of conviction, which includes the preliminary hearing transcript, the charges that were filed, in looking at all of that, it does not appear to me that this is a felony murder case, nor is it a case where the prosecution allegation is that [defendant] was an aider and abettor and that it was a natural and probable consequences theory of aiding and abetting. I don't find that either of those legal theories are at play in this case.

“And, [defense counsel], you've pointed to other people who could potentially be involved, but there's no indication in the police reports or the preliminary hearing that those people were involved; and, in fact, [defendant], when asked that question specifically at the parole hearing, confirmed that no one else was involved.

“So one layer is that the theories that are necessary to get relief under [section] 1170.95 are not at play in this case.

“The second basis for denying relief is I find that [defendant] is the actual killer in this case. She's not vicariously liable here. She's directly liable. And so for that reason I find that she is not entitled to relief under Section 1170.95.”

Defendant timely appealed.

II. DISCUSSION
A. New or Additional Evidence

Defendant contends the trial court could not consider either the parole risk assessment and the parole hearing transcript at her section 1170.95 evidentiary hearing because they are not part of the record of conviction or “new or additional evidence” within the meaning of section 1170.95, subdivision (d)(3).

1. Applicable law

Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019 (Senate Bill 1437), revised the felony-murder rule and natural and probable consequences doctrine in California “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. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) The bill amended the definition of malice in section 188, revised the definition of the degrees of murder to address felony-murder liability in section 189, and added section 1170.95, “which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions.” (People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417, citing Stats. 2018, ch. 1015, §§ 2-4.)

Section 1170.95, subdivision (a) provides that a person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court 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 or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3)The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.”

If the trial court determines, under subdivision (c) of section 1170.95 that the defendant has made ‘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.' (Lewis, supra, 11 Cal.5th at p. 960.) At the evidentiary hearing, the burden of proof is on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3).) “The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.” (Ibid.)

2. Forfeiture

The Attorney General contends defendant has forfeited her challenge to the admissibility of the parole risk assessment and parole hearing...

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