Filed 7/22/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

RODERICK WAYNE 

MITCHELL,

Defendant and Appellant.

 B308780

 Los Angeles County

 Super. Ct. No. A639776

APPEAL from an order of the Superior Court of 

Los Angeles County, Tammy Chung Ryu, Judge. Affirmed.

Jonathan E. Demson, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Amanda Lopez and J. Michael Lehmann, 

Deputy Attorneys General, for Plaintiff and Respondent.

____________________

Roderick Wayne Mitchell joined his older brother’s gang, 

which celebrated violent acts done “just for the fun of it.” With 
2

his fellow gang members, Mitchell took part in these crimes. 

Then came this murder. While at a pool hall at 2 o’clock in the 

morning, Mitchell and his brother decided to rob someone and 

selected a victim: the driver in a nearby car waiting for food at a 

drive-through. Along with a third accomplice, Mitchell waited 

while his brother confronted the driver, who tried to drive away. 

The brother fired at the fleeing driver. The gunfire did not 

startle or deter Mitchell: instead of withdrawing from the 

robbery when shots rang out, Mitchell pursued the car with his 

brother. It crashed nearby. The brother gave the gun to Mitchell 

and rifled the victim’s clothes for money. The brothers split the 

cash evenly. Mitchell did not render or summon aid for the 

victim or check his pulse or breathing. Rather, he returned to the 

pool hall with his brother. The victim, hit by five shots, died in 

the car.

As a matter of law, these facts establish Mitchell was a 

major participant in the robbery who showed reckless 

indifference to human life. Mitchell planned a violent crime with 

a violent man, and when that man started shooting, Mitchell 

stuck with the plan and continued with the violent crime. 

Mitchell did not minimize risk or show concern for his victim. 

Rather he held the gun, shared the take, and left the body. 

We affirm the trial court’s findings. Mitchell’s role was 

major. His indifference was evident. We share the trial court’s 

view that “there’s no other way of interpreting that.”

We also hold, following a line of unbroken authority, that 

the trial court could rely on sworn statements Mitchell made to 

the parole board when Mitchell petitioned to be resentenced. The 

point of this petitioning process is to find truth and to do justice. 

In this quest, the facts must matter. It is fair to permit the court 
3 

to evaluate how Mitchell described his role in his crime. The 

Legislature set the parameters for admissible evidence in this 

process, and these parameters invite all admissible evidence, 

which here includes Mitchell’s parole board statements. 

It is certainly true Mitchell faced different incentives in the 

parole hearing and in his resentencing petition. The parole 

process rewards acceptance of responsibility while the 

resentencing process here rewards a diminished role in criminal 

events. Despite these differing incentives, the Legislature did not 

bar consideration of parole hearing statements. There is no 

statutory or constitutional basis for excluding this evidence. 

When individuals seek to gain a sentencing advantage, it is fair 

to examine their own words to see if they deserve it. If they claim 

their culpability is low but their words show otherwise, this is 

pertinent. 

Undesignated statutory citations are to the Penal Code. 

I 

In 1988, Mitchell pleaded guilty to first degree murder. As 

part of his plea, Mitchell expressly waived the right against selfincrimination. Mitchell entered his plea after confessing to police 

and before a preliminary hearing. 

A police report documented Mitchell’s confession. On 

appeal, Mitchell quotes this confession in full and has abandoned 

trial court objections to it. The report recounts: 

“[Mitchell] stated he and his brother observed the victim 

and decided to rob him. They approached the victim and 

demanded money. When the victim refused [Mitchell] stated his 

brother shot the victim. As the victim drove from the location an 

additional shot was fired at the victim which broke the rear 

vehicle window. [Mitchell] continued to say that after they heard 
4 

the victim’s vehicle crash, they went to his location and took 

approximately $200.00 from his pocket. [Mitchell] stated he took 

$100.00 and his brother kept $100.00 of the victim’s money.” 

The trial court sentenced Mitchell to 25 years to life in 

prison with the possibility of parole. 

In 2017, Mitchell described his crime under oath at a parole 

consideration hearing. The transcript of this hearing runs to 80 

pages. 

Mitchell recounted his knowledge of and relationship with 

the man—his brother—with whom he planned and committed 

this crime. This evidence supported the inferences that 

Mitchell’s brother had committed violent crimes and that 

Mitchell knew this history because Mitchell had participated in 

it. 

Following his brother, Mitchell joined the Crips at age 15. 

After that, “the majority of people that I’m hanging around with 

are gang members.” With his gang, Mitchell was “[s]elling drugs, 

uh, robbing, stealing, arson.” “[O]ne day we sat around and—and 

set a fire on a—it was a truck, just for—just for the fun of it and 

everybody just looked and—and—we drank alcohol and it was 

like a—a party.” Close to age 18, Mitchell began carrying a gun. 

“In the gang life it was, uh, celebrated to see someone commit a 

violent act on somebody else.” “[W]e did celebrate just 

committing violent acts just for—just for the fun of it.” 

Mitchell described the specific crime to which he had 

pleaded guilty. The italics are ours. 

Mitchell was staying with his brother. They were at a pool 

hall after midnight and “we were getting high at the moment.” 

“We decided to rob somebody so we looked around and seen [the 

victim], uh, at a food service, so the three of us walked over 
5

there.” Mitchell explained his brother had a gun. “So, as we 

stood over there looking out he went around the building and [the 

victim] was in his car at a drive-thru, so he went around the 

building to confront [the victim]. At that time, uh, we was just 

standing by, watching out. So about a couple of minutes went 

blowing by and we heard gunshots and [the victim] pulled out of 

the drive—the drive-thru and made a left, he made a hard right 

and crashed into the back of a church. So at that time, we 

followed the car in which, uh, we went down there and my 

brother went on, took his money while we held the gun and after 

that—

“[Q]: You said while we held the gun? 

“[A]: Right.

“[Q]: That sounds like more than one person is holding the 

gun and who’s holding the gun? 

“[A]: I held the gun while we went into [the victim’s] pocket.

“[Q]: What are you saying to him at this point? 

“[A]: Hurry up, let’s go. You know, if anybody sees us we 

are going to be in trouble.” 

Mitchell said he assumed the driver was dead, but he did 

not learn with certainty about the death until after his arrest. 

He claimed at the time of the shooting “we had no idea that he 

would—he had been murdered.” 

The hearing panel found Mitchell was not suitable for 

parole. Mitchell’s extensive prison disciplinary record led the 

panel to conclude Mitchell posed a danger to the public if 

released. But the panel also signaled Mitchell more recently had 

been on the right track, noting he would “probably stand a pretty 

good chance” if he would refrain from further misconduct and 

would file a petition to advance his next parole hearing. 
6

In 2019, Mitchell filed a petition for resentencing under 

former section 1170.95 (now § 1172.6). 

Effective June 30, 2022, section 1170.95 was renumbered 

section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) 

To minimize awkwardness from this renumbering, we refer to 

“the statute” or to “former section 1170.95.” 

Mitchell filled out a form saying, “I, Roderick Mitchell, 

declare as follows: [¶] . . . [¶] I was not a major participant in 

the felony or I did not act with reckless indifference to human life 

during the course of the crime or felony.” Mitchell declared 

“under penalty of perjury that the above is true” and signed and

dated his declaration. 

The prosecution opposed Mitchell’s petition and supplied a 

transcript of the 2017 parole hearing, a probation officer’s report, 

and relevant police reports. 

Mitchell filed a reply and objected to the parole hearing 

transcript. He argued, among other things, the transcript was 

hearsay and was protected by use immunity, and it was unfair to 

use this evidence against him. 

The trial court appointed counsel, issued an order to show 

cause, and held an evidentiary hearing. 

At the hearing, the court stated (with our italics), “I think, 

before we proceed, we do have to have a ruling on what can be 

considered at this hearing. [¶] . . . [¶] The court . . . has 

permitted additional evidence that would shed light on whether 

Mr. Mitchell was either a major participant in the underlying 

felony which is robbery in this case and acted with reckless 

disregard for human life. [¶] . . . [¶] [T]he objection that [the 

defense] articulated [about the] right to confront or hearsay 

objections would not apply to Mr. Mitchell’s own statements. 
7

And . . . those would be the only evidence I would consider[:] . . . 

his statements at the parole hearing and also in the police report. 

[¶] . . . [¶] So I am going to consider defendant’s statements only 

as they’re contained in the parole board hearing transcript and 

the police reports.” 

Both sides argued. Neither presented witnesses. 

The trial court denied Mitchell’s petition with a thoughtful 

and extensive analysis. 

“I find that Mr. Mitchell was a major participant in the 

robbery. 

“He agreed to rob someone with the brother, yes, for money 

to buy more drugs. That may have been the primary motive. 

And he actually helped pick out the victim with the brother. 

They agreed who the victim was going to be. They saw him. I 

think it was a drive through or the parking lot of the restaurant. 

And they—he, the defendant, with his brother—and there was 

another person present—agreed to rob that particular victim. 

“And he did help rob the victim. . . . But do you remember 

he was the one who held the gun? The brother gave him the gun, 

and the defendant held the gun while the brother went through 

the injured victim’s body and personal effects to get the 140 or 

$190 from the victim. 

“Defendant held the gun although defendant did state I 

think maybe at the parole board hearing he thought that at that 

point in time the victim may have been dead. But it could also be 

interpreted that he held the gun just in case the victim resisted. 

Either way he was a major participant in the robbery. That’s the 

finding of this court. 

“The real issue in the court’s mind is did he act with 

reckless indifference to human life? It is worth noting that the 
8

shooter and the killer in this case was Mr. Mitchell’s brother 

whom he hung out with or lived with and did drugs with and 

belonged to the same gang with during that period of time. 

“It is sad that Mr. Mitchell was just a young person at the 

time. I think he was 18. So—and that he was abusing drugs. 

But being high or choosing to get high is not a defense to 

committing a robbery in this case. 

“And because he was—it was his brother and they belonged 

to the same gang and they did drugs together, there is a strong 

indication that he knew or should have known his brother would 

be armed or use some sort of a weapon. There’s no indication 

that Mr. Mitchell was surprised at all when the gun was actually 

used. He never mentioned, I was shocked when my brother shot 

at the victim. I did not know he had a gun. There was nothing 

like that ever indicated by Mr. Mitchell in all the statements he

made about his involvement in this incident which all goes to 

support the argument or the assumption that Mr. Mitchell knew 

that his brother had a gun or intended to use a weapon in the 

robbery. 

“And [the prosecutor] makes a very good point that the 

shooting actually happened prior to the actual robbery taking 

place which meant that Mr. Mitchell had the opportunity to stop 

his involvement. When the shots were first fired at the victim, 

that’s when Mr. Mitchell—even if he did not know his brother 

had a gun or was going to use a weapon or was going to try to kill 

anyone, that was the point in time when he could say, hey, I did 

not know you were going to try to kill someone, try to rob 

them. . . . But he didn’t. He just stood there, didn’t try to stop 

his brother when his brother shot again. 
9

“The victim had five gunshot wounds. The second time his 

brother shot as the victim drove away was what shattered the 

rear window of the car. And that’s—I believe that is when the 

victim actually crashed into, I think, a church or a parking lot. 

“So the defendant’s brother, codefendant, the shooter shot 

at the victim. Defendant did not thereafter distance himself or 

walk away being surprised that a gun was used or someone was 

going to get killed in this robbery, did not try to stop his brother 

when his brother shot again. Let’s say there was a surprise and 

it happened really quickly and there was no time for Mr. Mitchell 

to actually reflect and respond. However, but then after that 

happened, instead of walking away then after the second round of 

shots, he actually ran with a codefendant to the victim to 

continue the robbery or complete the robbery. 

“And on top of that, he held a gun on the victim basically. 

If he truly believed the victim had been killed or there was no 

way that the victim can resist or anything like that, there was no 

need for him to hold the gun. They could have put away the gun. 

But he held the gun. He did not—at that point in time, he 

assisted his brother to rob the victim while holding the gun. 

“And he didn’t try to assist the victim at all. I know it 

sounds kind of [incredible] to expect somebody to participate in a 

robbery that a gun was used that they would thereafter call for 

help for the victim. But that would be an indication that 

somebody did not intend to aid a robbery where someone was 

going to die. That would indicate that he did not, in fact, act with 

reckless indifference to human life, . . . that he did not intend to 

aid in that regard, aid just in the robbery but not in killing 

someone in the commission of that robbery. That is the reckless 

indifference. 
10

“Did he act with reckless indifference? I would have to say, 

yes, he did despite the fact that he was only 18 and it was his 

brother that he was with. And he may have been high on drugs. 

He acted with reckless indifference to human life when his 

brother shot at the victim. And he still went with the brother to 

get the money from the victim, held the gun while his brother did 

that. That is, I find, an action taken with reckless indifference to 

human life. To me there’s no other way of interpreting that. 

“So I am going to find that [the] People met their burden of 

proof that defendant is ineligible for relief because he acted with 

reckless indifference to human life in addition to being a major 

participant in the robbery. 

“This is a sad situation, as [defense counsel] pointed out, 

that Mr. Mitchell was just a teenager at the time and he was—he 

may have been abusing drugs that affected him in some way. 

But our law does not provide an excuse for that kind of action 

just because you are 18 or you are abusing drugs. Somebody got 

shot five times and killed here. And he was robbed while he was 

sitting in his car bleeding to death. 

“And Mr. Mitchell being young at the time is not a reason 

for this court to grant this petition because he was a major 

participant who acted with reckless indifference to human life. 

“So the petition under 1170.95 is denied.” 

II 

Mitchell’s first contention is that the trial court erred by 

considering the parole hearing transcript. He argues the 

incentives facing people seeking parole, and concerns regarding 

self-incrimination and the burden of proof, make it improper to 

consider such evidence in proceedings under the statute. 
11

This contention is erroneous. There is no categorical 

exclusion of a defendant’s sworn parole hearing testimony in this 

process. There never has been, and it would contravene the 

statute’s language and purpose to create one now. 

The statutory language shows parole hearing transcripts 

are proper evidence in this setting. Before and after its recent 

amendment, the statute permitted the parties to rely on “new or 

additional evidence” in these hearings. (Former § 1170.95, subd. 

(d)(3) [now § 1172.6, subd. (d)(3)].) 

Through Senate Bill No. 775 (2021–2022 Reg. Sess.), 

effective January 1, 2022, the Legislature clarified the scope of 

admissible evidence at the evidentiary hearing. (Stats. 2021, ch. 

551, § 2.) The statute now specifies the Evidence Code governs 

the admissibility of evidence. This shows the Legislature focused 

on the issue of admissibility and made the statute govern these 

proceedings. The Legislature could have incorporated the 

exclusionary principles Mitchell advocates but did not. 

The parole transcript is and was properly admitted 

evidence. The trial court diligently considered Mitchell’s 

evidentiary objections to the parole transcript and to the police 

reports. To overcome hearsay objections, the court limited its 

consideration to the admissions of a party opponent. (See Evid. 

Code, § 1220 [hearsay exception for party admissions].) 

Mitchell’s briefing to us does not argue the Evidence Code 

bars this evidence. 

As a matter of statutory wording, then, this parole 

transcript was proper evidence. 

The same result follows when we examine the statute’s 

purpose. (See People v. Lewis (2021) 11 Cal.5th 952, 962 (Lewis) 

[construe the statute to achieve its purpose].) The overall goal of 
12

the petitioning process here is to make the punishment fit the 

crime in a precise and particularized way. The Legislature 

sought to ensure murder culpability is commensurate with a 

person’s individual actions. (Id. at p. 971.) 

That takes facts. 

The Legislature responded to longstanding critiques of 

murder doctrine by creating a process to ameliorate past excesses 

that created sentences judged to be too long and to resentence 

where appropriate. So the focus is on examining the truth of 

what happened to evaluate whether to reduce an individual’s 

sentence so the punishment fits the crime. (See People v. Gentile 

(2020) 10 Cal.5th 830, 838–839, 846–847.) 

The Legislature meant for trial courts to zero in on the 

“individual culpability” of each petitioning defendant. (See Stats. 

2018, ch. 1015, § 1(d).) “A person’s culpability for murder must 

be premised upon that person’s own actions and subjective mens 

rea.” (Id., § 1(g).) This is essential to serve the “bedrock principle 

of the law and of equity” that people be punished only for their 

own actions. (Id., § 1(d).) Tailoring punishment precisely would 

address fairly the culpability of the individual and would assist in 

the reduction of prison overcrowding, which has resulted in part 

from lengthy sentences that are not commensurate with the 

culpability of the individual. (Id., § 1(e).) 

Contrast what the Legislature did do with an alternative it 

did not enact. To combat overincarceration, a different approach 

would have been to pass a blanket rule: for example, “no one 

shall remain in prison for more than X years.” That categorical 

approach would not turn on factual details. But the statute takes 

the opposite approach: tailor sentences to the facts of each case. 
13

It would contravene this goal of individualizing punishment 

for courts to blind themselves to the individualized facts of the 

case. This appeal illustrates how a parole transcript can be a 

valuable source of information about a particular defendant’s 

actions, and thus potentially important in the work of aligning 

individual punishment with individual culpability. This work 

benefits from the kind of evidence a parole transcript can provide. 

Mitchell relies on a line of cases starting with People v. 

Coleman (1975) 13 Cal.3d 867 (Coleman), in which courts were 

concerned about using a defendant’s statements at a later 

criminal trial (or a later point in the original prosecution) and 

adopted “a limited species of use immunity grounded in 

California’s constitutional guarantee against self-incrimination.” 

(People v. Carter (1993) 19 Cal.App.4th 1236, 1248.) (E.g., 

Coleman, at pp. 876–877, 889, 892 [probationer’s testimony at 

revocation hearing inadmissible in later criminal trial]; Ramona 

R. v. Superior Court (1985) 37 Cal.3d 802, 809–810 (Ramona R.) 

[minor’s statements at juvenile fitness hearing and to probation 

officer inadmissible in later criminal trial]; In re Jessica B. (1989) 

207 Cal.App.3d 504, 520–521 [parent’s testimony in dependency 

proceedings and statements in court-ordered therapy 

inadmissible in prosecution for child abuse].) 

For the reasons outlined in People v. Myles (2021) 69 

Cal.App.5th 688 (Myles), we reject Mitchell’s arguments. Myles

held a parole hearing transcript is admissible as “new or 

additional evidence” under the statute. (Id. at pp. 697–703.) It 

explained why such a rule is necessary in plea cases and why 

extending judicially created use immunity to petitioner-initiated 

collateral proceedings like these is inapt. (Id. at pp. 699, 704–

706.) As other courts have done, we follow Myles’s well-reasoned 
14

analysis. (E.g., People v. Anderson (2022) 78 Cal.App.5th 81, 89–

93 (Anderson).)

Mitchell’s reliance on Coleman turns on equating the 

petitioning process here with a criminal prosecution. This 

attempted equation is mistaken. 

A petition under former section 1170.95 is not a criminal 

prosecution. (People v. Silva (2021) 72 Cal.App.5th 505, 520.) It 

is the opposite of a criminal prosecution. A criminal prosecution 

can only hurt a defendant and can never help. The process here 

is the reverse: it can only help the defendant and can never hurt. 

The statute offers petitioning prisoners the possibility of 

getting out sooner. From the defendants’ perspective, this 

process is all gain and no cost. That can never be said of a 

criminal prosecution. Criminal prosecutions heavily burden 

defendants they target.

Many constitutional protections that characterize 

burdensome criminal prosecutions thus do not apply in this 

ameliorative process. (See People v. James (2021) 63 Cal.App.5th 

604, 610 (James) [“we agree with the many courts that have held 

that a convicted person litigating a section 1170.95 petition does 

not enjoy the rights that the Sixth Amendment guarantees to 

criminal defendants who have not yet suffered a final 

conviction”]; People v. Anthony (2019) 32 Cal.App.5th 1102, 1156 

[“the Legislature’s changes constituted an act of lenity that does 

not implicate defendants’ Sixth Amendment rights”].)

For instance, there is no constitutional right to counsel at 

the outset of this process. (Lewis, supra, 11 Cal.5th at p. 973.)

There is no constitutional right to trial by jury. (James, 

supra, 63 Cal.App.5th at p. 609; cf. People v. Perez (2018) 4 

Cal.5th 1055, 1063–1064 [an evidentiary hearing on a petition for 
15

resentencing under Proposition 36 does not trigger the right to a 

jury trial because that legislative act of lenity does not implicate 

Sixth Amendment rights].) 

There is no constitutional right against double jeopardy. 

(People v. Hernandez (2021) 60 Cal.App.5th 94, 111.)

There is no constitutional right against self-incrimination

in the process. (See Myles, supra, 69 Cal.App.5th at pp. 704–706; 

see also People v. Lopez (1999) 71 Cal.App.4th 1550, 1554 [when a 

defendant has pleaded guilty and time to appeal has run without 

an appeal, the defendant’s privilege to avoid compelled selfincrimination with regard to the facts underlying the conviction 

no longer exists].) 

Mitchell’s counsel conceded at oral argument that there is 

no Fifth Amendment right against self-incrimination here. That 

is correct as a matter of law. Yet his argument for use immunity 

is built on cases that are tied to the right against selfincrimination. (See People v. Collins (1986) 42 Cal.3d 378, 386 

[“Coleman and Ramona R. were concerned with protecting a 

fundamental constitutional right—freedom from selfincrimination during a criminal trial”]; see also Anderson, supra, 

78 Cal.App.5th at p. 91 [“the existence of the defendant’s 

constitutional privilege against self-incrimination in the 

subsequent criminal trial was integral to the justification for the 

exclusionary rule announced in Coleman”]; id. at p. 93 [“Where 

the privilege against self-incrimination is not implicated, the 

rationale for immunities at issue in Coleman and Ramona R.

disappears”].) 

This statute set up a beneficial process at odds with a 

shadow right against self-incrimination. This resentencing 

process could not even begin until Mitchell gave the court his 
16

statement, under oath, about his role in the crime to which he 

pleaded guilty. (See former § 1170.95, subd. (b)(1)(A) [now 

§ 1172.6, subd. (b)(1)(A)] [to commence the process, petitioning 

defendants must submit “a declaration by the petitioner”].) 

Mitchell wrongly protests the parole board promised him 

use immunity when it told him that “[n]othing that happens here 

today is going to change the court findings as we’re not here to 

retry your case.” What the board said was true, and it did not 

create use immunity. The point of trial is to determine guilt or 

innocence, and Mitchell’s guilty plea settled that issue. The 

parole board was not there to retry Mitchell’s guilt or innocence. 

It was there to hear what he had to say about himself and his 

actions and prospects. The board did not promise use immunity. 

The parole process emphasizes the importance of voluntary, 

unvarnished truthtelling. California regulations for parole 

hearings provide, with our emphasis: “The facts of the crime 

shall be discussed with the prisoner to assist in determining the 

extent of personal culpability.” (Cal. Code Regs., tit. 15, § 2236.) 

But the board “shall not” require an admission of guilt and “shall 

not” hold a prisoner’s refusal to discuss the crime against the 

prisoner. (Ibid.) 

The trial judge is ideally situated to determine whether the 

incentives at a specific parole hearing mesh with the statute’s 

goal of aligning punishment with true culpability. When there 

are valid reasons to doubt the probity of a parole hearing 

statement, the trial judge can hear and appraise arguments in 

the case’s context and accord the statement due weight. Trial 

judges are expert at evaluating—word by word—whom and what 

to believe in individual situations. No reason exists to preempt 
17

trial judges’ particularized evaluation with our own blanket rule 

of exclusion.

Mitchell contends it is unfair to use his own words against 

him. What is the unfairness, exactly? At the parole hearing and 

in his petition for resentencing, Mitchell sought to reduce the 

punishment for a crime to which he pleaded guilty. Contrary to 

Mitchell’s claim, it is fair and indeed sensible to say a convicted 

person’s own words are pertinent when that person petitions for 

the benefit of resentencing. 

The statute strives to achieve justice. It would be unjust 

for Mitchell to gain an advantage his sworn description shows he 

does not merit. 

The trial court did not err in considering Mitchell’s parole 

hearing testimony. 

III

Mitchell initially accepts our standard of review is 

sufficiency of the evidence but then argues we should 

independently review the denial of his petition because the trial 

court heard no live testimony. He cites People v. Vivar (2021) 11 

Cal.5th 510 but ignores Vivar’s footnote 7, which expressly 

cautioned against extensions of the type Mitchell urges. The 

proper standard of review thus defers to the trial court’s 

factfinding. We review the trial court’s findings for substantial 

evidence. (People v. Clements (2022) 75 Cal.App.5th 276, 298.) 

We view the facts in the light most favorable to the People. 

In this process, we presume in support of the judgment the 

existence of every fact that can be reasonably deduced from the 

evidence, whether direct or circumstantial. (People v. Owens

(2022) 78 Cal.App.5th 1015, 1022; see also People v. Clark (2016) 

63 Cal.4th 522, 610 (Clark).) We must accept factual inferences 
18

in favor of the trial court’s ruling. (People v. Zamudio (2008) 43 

Cal.4th 327, 342, 346, fn.7, 357.) Where Mitchell urges contrary 

and conflicting inferences, then, we must reject them.

Substantial evidence supports the finding, beyond a 

reasonable doubt, that Mitchell was a major participant in a 

felony who acted with reckless indifference to human life. (See 

§ 189, subd. (e)(3); see also People v. Douglas (2020) 56 

Cal.App.5th 1, 7, 9 [explaining how former section 1170.95 

narrowed felony murder and how appellate courts assess a 

petitioner’s culpability].)

Mitchell was a major participant. Mentally, Mitchell 

helped decide to rob, helped plan the robbery technique, and 

helped select the victim. Physically, Mitchell was on the scene 

from start to finish. Tangibly, he helped with the gun and split 

the proceeds equally with the shooter: his fellow gang member 

and brother. At every stage, Mitchell was a full partner in crime.

Mitchell was recklessly indifferent to human life. We 

analyze this issue as the trial court did, with the guidance of the 

now-familiar decisions in Banks, Clark, and Scoggins. (People v. 

Banks (2015) 61 Cal.4th 788 (Banks); Clark, supra, 63 Cal.4th 

522; In re Scoggins (2020) 9 Cal.5th 667 (Scoggins).) These state 

decisions charted a “ ‘spectrum of culpability’ ” set forth in two 

opinions from the Supreme Court of the United States. 

(Scoggins, at p. 675, quoting Banks, at p. 811.) These two federal 

decisions are Enmund v. Florida (1982) 458 U.S. 782 (Enmund) 

and Tison v. Arizona (1987) 481 U.S. 137 (Tison). 

“[I]t is important to consider where the defendant’s conduct 

falls on the ‘spectrum of culpability’ that Enmund and Tison 

established. . . . On one end of the spectrum is Enmund, ‘the 

minor actor in an armed robbery, not on the scene, who neither 
19

intended to kill nor was found to have had any culpable mental 

state.’ ” (Scoggins, supra, 9 Cal.5th at p. 675, citations omitted.) 

The other end of the spectrum are the 19 and 20 year old 

defendants in the Tison case, who were major participants who 

acted with reckless indifference to human life, even though 

neither of them shot any murder victim. The Supreme Court of 

the United States, speaking through Justice O’Connor, ruled it 

was therefore constitutional to impose the death sentence on the 

youthful Tison defendants. (Tison, supra, 481 U.S. at pp. 142, 

151–152, 158.) The California Supreme Court embraced these 

federal decisions as a matter of state law. (E.g., Scoggins, at p. 

675 [Enmund and Tison are “instructive”].) 

Scoggins, the most recent of any of these decisions, 

summarized the earlier ones and established the proper 

approach. We are to analyze the totality of the circumstances to 

determine whether Mitchell acted with reckless indifference to 

human life.

“Relevant factors include: [1] Did the defendant use or 

know that a gun would be used during the felony? [2] How many 

weapons were ultimately used? [3] Was the defendant physically 

present at the crime? [4] Did he or she have the opportunity to 

restrain the crime or aid the victim? [5] What was the duration 

of the interaction between the perpetrators of the felony and the 

victims? [6] What was the defendant’s knowledge of his or her 

confederate’s propensity for violence or likelihood of using lethal 

force? [7] What efforts did the defendant make to minimize the 

risks of violence during the felony?” (Scoggins, supra, 9 Cal.5th 

at p. 677.)

We address these seven points, one by one. 
20

First, did the defendant use or know that a gun would be 

used during the felony? Mitchell and his brother formulated a 

plan to rob a man in a car. A gun was necessary for their plan, 

for otherwise a driver would simply accelerate and escape with 

the money that was the object of the design. By jointly 

composing and pursuing this plan, Mitchell subjectively and 

consciously disregarded “ ‘the significant risk of death’ ” his 

actions necessarily created. (Scoggins, supra, 9 Cal.5th at p. 677, 

quoting Banks, supra, 61 Cal.4th at p. 801.)

Second, how many weapons were ultimately used? The gun 

was used, to deadly effect, because the driver did try to accelerate 

and to escape with his money.

Third, was the defendant physically present at the crime? 

Mitchell was physically present at every stage of the crime: 

planning, execution, dividing the spoils, and flight. In the trial 

court, Mitchell’s counsel conceded his presence at the scene. 

Fourth, did the defendant have the opportunity to restrain 

the crime or aid the victim? Mitchell had the opportunity to 

restrain the crime and to aid the victim. At the outset, Mitchell 

could have rejected the planned crime or could have adjusted the 

method to take victim welfare into account. There was none of 

that. 

Once the gunfire started, Mitchell worked to complete the 

robbery, not to care for the victim. The police report showed two 

rounds of shooting. The first was when the victim refused the 

brother’s robbery demand. The second was when the victim tried 

to escape by driving away. The interval separating these rounds 

gave Mitchell options. He had the chance to tell his brother to 

stop the shooting. He could have tried to call off the plan. Or he 

could have fled the scene. During this time Mitchell had no way 
21

to know the victim’s condition. Had he cared about the victim’s 

well-being, Mitchell could have shown it. 

Mitchell never moved away from the violence. He went to 

the crashed car to help rob the driver. These actions support the 

trial court’s inference the gunshots were unsurprising to him.

Mitchell held the gun his brother gave him and told his 

brother to hurry. He argues he assumed the victim was dead, so 

his actions after the shooting do not show indifference to his 

victim’s plight. But Mitchell also swore he learned only later, 

after his arrest, that the victim had died. He claimed at the time 

of the shooting “we had no idea that he would—he had been 

murdered.” 

Mitchell never checked for a pulse or for breathing. (Cf. 

Scoggins, supra, 9 Cal.5th at p. 680 [“Scoggins walked over to the 

crime scene and checked if [the victim] was still breathing after 

the shooting”].)

In a substantial evidence review, we draw factual 

inferences in favor of the trial court’s analysis. Mitchell was not 

positive the driver was dead, and the fair inference is that 

Mitchell held the gun to guarantee the wounded driver would not 

hamper the robbery. 

When the circumstances allow different inferences, 

defendants’ actions after shootings “may not be very probative” of 

their mental state. (Scoggins, supra, 9 Cal.5th at p. 679.) This 

rule discounts the weight of the aid factor in some circumstances, 

but the factor remains an appropriate consideration. 

Mitchell’s case lacks the ambiguity present in the Scoggins

case. There, the defendant came to the crime scene, checked if 

the victim was breathing, and behaved calmly. This conduct was 

ambiguous: it could demonstrate he had anticipated lethal force 
22

and was unsurprised by the “deadly turn of events,” or, 

conversely, he believed he lacked culpability and intended to aid. 

(Scoggins, supra, 9 Cal.5th at p. 680.) 

No one suggests Mitchell attempted to aid the recently shot 

victim in any way. Nor did Mitchell flee after the shooting, which 

would support his rejection of his brother’s actions. (See Clark, 

supra, 63 Cal.4th at p. 620.) Instead, while the victim lay 

bleeding, Mitchell’s only manifested concern was to rob the man. 

That was cold. There is no ambiguity. Mitchell’s action 

and inaction showed indifference. 

Fifth, what was the duration of the interaction between the 

perpetrators of the felony and the victims? The duration was 

brief. This was because the frightened victim tried to flee. This 

does not show Mitchell had compassion or regard for the victim. 

Sixth, what was the defendant’s knowledge of his or her 

confederate’s propensity for violence or likelihood of using lethal 

force? Mitchell’s knowledge of his confederate’s propensity for 

violence was considerable. As the trial court found as a fact, the 

man was “Mitchell’s brother whom he hung out with or lived with 

and did drugs with and belonged to the same gang with during 

that period of time.” 

The record amply supports this factual finding, to which we 

defer. This older brother brought Mitchell into the gang, and 

after that Mitchell mainly hung out with fellow gang members, 

presumably including his brother. With them Mitchell engaged 

in a variety of crimes: “robbing, stealing, arson.” “In the gang 

life it was, uh, celebrated to see someone commit a violent act on 

somebody else.” “[W]e did celebrate just committing violent acts 

just for—just for the fun of it.” 
23

Beyond being siblings, Mitchell and his brother were longtime fellow Crips, and they lived together, hung out together, and 

did drugs together. From years of experience, Mitchell knew his 

fellow gang members had a history of violence and of celebrating 

that violence. For Mitchell, his older brother was a known 

quantity. 

Mitchell planned the robbery with this knowledge of his 

brother and this history. The inference must be that Mitchell 

knew his robbery partner could resort to violence “just for the fun 

of it.” 

Seventh, what efforts did the defendant make to minimize 

the risks of violence during the felony? Mitchell made no effort to 

minimize the risks of violence. He concedes this on appeal. This 

abandon shows indifference to the risk to human life. 

Under the Banks-Clark-Scoggins analysis, this case is not 

close. Mitchell was indifferent to the risk to human life, and his 

disregard involved a gross deviation from the standard of conduct 

that a law-abiding person would observe in his situation. 

(Scoggins, supra, 9 Cal.5th at p. 677.)

Mitchell says the “anticipated proceeds” from the robbery 

likely were too small to give him reason to expect lethal force. 

The better inference, the one consistent with the trial court’s 

analysis, is that the victim’s life was worth little to Mitchell. 

Mitchell argues his crime was a “ ‘garden variety’ armed 

robbery.” The Supreme Court explained this phrase applies 

when “the only factor supporting reckless indifference to human 

life is the fact of the use of a gun.” (Clark, supra, 63 Cal.4th at p. 

617, fn. 74.) In this case, by contrast, most factors counter 

Mitchell’s petition for the benefit he seeks. 
24

We ascribe meaning to Mitchell’s actions despite his age. 

Youth can distort risk calculations. Yet every 18 year old 

understands bullet wounds require attention. The fact of youth 

cannot overwhelm all other factors. (See Tison, supra, 481 U.S. 

at pp. 142, 151–152, 158 [death sentence for 19 year old was 

constitutional because he was a major participant who acted with 

reckless indifference].) Weight appropriate to Mitchell’s youth is 

overborne here by the Banks-Clark-Scoggins factors that show 

Mitchell’s indifference to his victim’s life. As the trial court 

rightly concluded, “Mr. Mitchell being young at the time is not a 

reason for this court to grant this petition because he was a major 

participant who acted with reckless indifference to human life.”

Mitchell presents sympathetic facts about his childhood 

circumstances. These facts are not pertinent to whether Mitchell 

was recklessly indifferent at the time of his crime, but they can 

be appropriate to the question of whether Mitchell should now be 

released. The parole board delved empathetically into a review of 

Mitchell’s life and prospects, including the many factors 

suggesting Mitchell remained a risk to public safety. 

Transforming petitioning under former section 1170.95 into an 

extra-statutory supplement to the parole process would be 

unjustified, however: the statute and the case law provide no 

basis for this expansion—which would be substantial if it were to 

be comprehensive—and the parole board has access to extensive 

assessment information unavailable to parties and courts in the 

former section 1170.95 context.

The trial court correctly concluded Mitchell remained liable 

for felony murder and properly found Mitchell was ineligible for 

relief. 
25

DISPOSITION 

We affirm the trial court’s order denying Mitchell’s 

resentencing petition. 

WILEY, J.

I concur: 

HARUTUNIAN, J.* 

* Judge of the San Diego Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution. 
1

STRATTON, P. J., Dissenting.

As distasteful as it may be to dissect a defendant’s 

participation in events resulting in murder, precedent commands 

us to do so to arrive at a just result. Dissect we must. We are 

tasked with separating “garden variety” armed robberies from 

more serious offenses. (People v. Clark (2016) 63 Cal.4th 522, 617 

& fn. 74 (Clark).) That a person can agree to participate in an 

armed robbery and still not satisfy the requirements of reckless 

indifference under our caselaw underscores the precision with 

which we must judge the evidence of appellant’s actions.1

1 I find the majority’s rendition of the facts unreliable. The 

unsupported inferences are legion. There is no evidence the 

brothers had a long history of violent crime together; there is no 

evidence one way or another whether appellant was startled 

when his brother opened fire. The evidence is that the brothers 

ran after the victim’s car after they heard it crash nearby. They 

did not rifle through the victim’s clothes together. There is no 

evidence whether appellant knew about his brother’s past crimes. 

There is no evidence whether appellant expressed surprise at the 

unfolding events.

The majority treats appellant’s testimony at the parole 

hearing as though it were the result of a focused police 

interrogation instead of what it was – a hearing to determine if 

appellant was ready to be paroled. The majority has taken 

appellant’s direct answers to direct questions by the parole 

commissioners and extrapolated to make inferences on issues the 

commissioners never raised and appellant was never asked 

about. In another vein, when a statement suits the analysis, the 

majority relies on general statements in police reports rather 

than appellant’s more specific parole board testimony. Another 

reason not to allow this type of testimony as it is rife for abuse.
2

Therefore, I dissent. This is a garden variety armed 

robbery. The evidence is insufficient to support a finding of 

reckless indifference to human life. I also would hold that the 

People’s use of appellant’s testimony before the parole board 

violated People v. Coleman (1975) 13 Cal.3d 867 (Coleman). 

I. Reckless Indifference

In 1988 when he was 19 years old, appellant pleaded guilty 

to first degree felony murder. He entered the plea before the 

preliminary hearing so there was no testimony or evidence on 

record against him. At the evidentiary hearing, the only evidence 

presented by the People was appellant’s testimony before the 

parole board considering his suitability for parole 30 years after 

the conviction. At the evidentiary hearing, the trial court stated it 

would not consider any statements other than statements by 

appellant. I understand that to mean the trial court did not 

consider the hearsay police reports the People submitted to the 

court along with the parole board transcript. Neither should we. 

Our Supreme Court has set out factors to consider in 

determining whether a defendant is a major participant in a 

felony murder who acted with reckless indifference to human life. 

(Clark, supra, 63 Cal.4th 522 [factors for reckless indifference]; 

People v. Banks (2015) 61 Cal.4th 788 (Banks) [factors for major 

participant].)2 Under Clark reckless indifference is “ ‘implicit in 

knowingly engaging in criminal activities known to carry a grave 

risk of death.’ ” (Clark, at p. 616.) It “encompasses a willingness 

to kill (or to assist another in killing) to achieve a distinct aim, 

2 It is unnecessary to decide whether appellant was a major 

participant in the crime if the evidence of reckless indifference is 

sufficient. (Clark, supra, 63 Cal.4th at p. 614.)
3

even if the defendant does not specifically desire that death as 

the outcome of his actions.” (Id. at p. 617.) Recklessness has 

both a subjective and an objective component. (Ibid.) 

Subjectively, the defendant must consciously disregard risks 

known to him. Objectively, recklessness is determined by “what 

‘a law-abiding person would observe in the actor’s situation,’ ” 

that is, whether defendant’s conduct “ ‘involved a gross deviation 

from the standard of conduct that a law-abiding person in the 

actor’s situation would observe.’ ” (Ibid.) Notably, the absence of 

anything in the criminal “plan that one can point to that elevated 

the risk to human life beyond those risks inherent in any armed 

robbery” was a factor the Clark court analyzed in determining 

whether reckless indifference had been shown. (Id. at p. 623.)

Clark sets forth the questions to be asked and answered in 

determining whether a defendant acted with reckless 

indifference: “Did the defendant use or know that a gun would be 

used during the felony? How many weapons were ultimately 

used? Was the defendant physically present at the crime? Did 

he or she have the opportunity to restrain the crime or aid the 

victim? What was the duration of the interaction between the 

perpetrators of the felony and the victims? What was the 

defendant’s knowledge of his or her confederate’s propensity for 

violence or likelihood of using lethal force? What efforts did the 

defendant make to minimize the risks of violence during the 

felony?” (In re Scoggins (2020) 9 Cal.5th 667, 677 [summarizing 

Clark factors].) Here the evidence does not come close to 

satisfying the Clark rubric.

A. How many weapons were ultimately used?

Appellant’s brother, the actual shooter, had a weapon. 

Appellant was unarmed that night. The evidence does not 
4

establish that appellant supplied the gun, which weighs against 

finding reckless indifference to human life. (See, e.g., In re Moore

(2021) 68 Cal.App.5th 434, 452 [although defendant knew that 

accomplice had a gun, defendant did not supply it and did not use 

one].) There is no evidence appellant knew his brother was 

armed, or knew his brother intended to use a gun during the 

robbery. But even assuming appellant knew in advance that his 

brother was armed, under Clark that knowledge alone is 

insufficient to establish reckless indifference to human life. 

(Clark, supra, 63 Cal.4th at p. 618; People v. Ramirez (2021) 

71 Cal.App.5th 970, 988 (Ramirez); People v. Bascomb (2020) 

55 Cal.App.5th 1077, 1089 [use of gun to threaten and keep 

victims at bay actively enabled the murder, exhibiting reckless 

indifference].)

B. Was the defendant physically present at the crime? 

Did he or she have the opportunity to restrain the 

crime? What was the duration of the interaction 

between the perpetrators of the felony and the victims?

The record shows appellant was playing pool with his 

brother who decided to commit a robbery and asked appellant if 

he wanted to go along with it. Appellant agreed because they 

were getting high together and needed more money for more 

drugs. They looked out the window and saw a fast food 

restaurant across the street with a car in the drive-thru line. 

They were known at the restaurant as they frequented it. They 

walked across the street. Appellant and a third recruit were to 

and did act as lookouts while appellant’s brother approached the 

victim in the drive-thru line to rob him. Appellant was some 

unknown distance from the victim as his brother approached the 

car. He did not see the shooting; he heard the gunshot and 
5

looked over to see the victim driving the car away from the 

restaurant. They heard the car crash. The three confederates 

followed the car to the crash site. That appellant did not see the 

shooting (“[W]e was just standing by, watching out. So about a 

couple of minutes went blowing by and we heard gunshots and 

[the victim] pulled out of the drive—the drive-thru and made a 

left, he made a hard right and crashed into the back of a church.”) 

is consistent with acting as a lookout, focused on others who 

might interfere with the robbery rather than participating in the 

act of robbery itself.

Assuming this scenario constitutes sufficient presence at 

the scene, presence nonetheless does not mandate a conclusion 

that the defendant acted with reckless indifference. (See, e.g.,

Ramirez, supra, 71 Cal.App.5th at p. 989 [defendant who was 

present when accomplice shot victim did not act with reckless 

indifference].) The question is: what was the effect of his 

presence at the scene. The limited facts here are three men set 

out from a bar to commit a robbery. A third man and appellant 

were lookouts while appellant’s brother approached the victim in 

a drive-thru line. Something occurred between the two men and 

appellant’s brother fired his gun. Appellant was some distance 

away. It is unclear how much time passed during these events, 

but according to the evidence considered by the trial court, it is 

clear appellant was not with his brother and the victim at the 

car. He was standing some distance away, not observing events 

unfold since he heard, but did not see the shooting. The shooting 

appeared to be a spontaneous reaction to victim resistance as 

opposed to a planned part of the robbery. Given the apparent 

spontaneity of the shooting and the fact that appellant did not 

witness it, it appears appellant was not in a position to restrain 
6

his brother, restrain the victim, or to otherwise intervene in how 

his brother carried out the robbery itself. (See, e.g., In re 

Scoggins, supra, 9 Cal.5th at p. 679 [quickness of shooting 

suggested defendant lacked control over accomplice’s actions]; In 

re Moore, supra, 68 Cal.App.5th at p. 452, [defendant was present 

during robbery but not close enough to restrain shooter]; compare 

Ramirez, at p. 989 [defendant lacked meaningful and realistic 

opportunity to intervene when he and shooter were on opposite 

sides of victim’s vehicle and attempted carjacking was quickly 

executed], with In re Loza (2017) 10 Cal.App.5th 38, 51–53 

[defendant who was in store where killing occurred had time to 

observe and react before murder because he heard killer threaten 

to shoot clerk and count to five before doing so] and In re Harper

(2022) 76 Cal.App.5th 450, 455, 457 [defendant heard pounding 

and yelling coming from victim’s and accomplice’s location and 

did nothing to intervene, after previously telling accomplice she 

could do whatever she wanted as long as he was not involved].)

C. Did appellant have the opportunity to aid the victim?

Appellant did not aid the victim. Appellant testified that 

after the victim’s car crashed, the three men ran over to the car 

and appellant’s brother began to rifle through the victim’s 

clothing looking for a wallet. He handed his gun to appellant 

who held it (not pointing it) while his brother searched the victim 

whom they believed to be dead. When the wallet was found, the 

three men left the scene and split up the money.

Not offering aid to a victim elevates money over human life. 

A defendant’s failure to aid a wounded victim shows reckless 

indifference. (Clark, supra, 63 Cal.4th at p. 619; In re Parrish

(2020) 58 Cal.App.5th 539, 544 [reckless indifference shown by 

failure to pause to aid or comfort victim]; People v. Douglas (2020) 
7

56 Cal.App.5th 1, 10 [defendant displayed no interest in 

moderating violence or in aiding his bloody and suffering victim 

and instead picked his pocket].) However, when different 

inferences may be drawn from the circumstances, a defendant’s 

actions after a shooting may not be probative of his mental state. 

(In re Scoggins, supra, 9 Cal.5th at p. 679.)

Additionally, even if appellant was callous in holding the 

gun while his brother rifled through the victim’s clothing, Clark

demands a showing that appellant knowingly created a serious 

risk of death; that is, appellant’s behavior after the victim was 

shot, standing alone, is insufficient to show he acted with 

reckless indifference to human life while participating in the 

robbery. (See, e.g., In re Taylor (2018) 34 Cal.App.5th 543, 560.) 

Even evidence that a defendant failed to aid the victim and 

laughed with his accomplices soon after the shooting may be 

insufficient to support a finding of reckless indifference to human 

life, especially where the defendant was 16 years old. (In re 

Moore, supra, 68 Cal.App.5th at p. 453.)

Here the undisputed evidence is that when asked what he 

did to aid the victim, appellant said he did nothing because he 

assumed the victim was dead. The People did not offer 

admissible contrary evidence. In fact, the prosecutor present at 

the parole board hearing stated he thought appellant was “being 

very sincere with this Board—concerning his efforts to move 

forward.” We have an 18-year-old who made an assumption and 

acted accordingly. Failure to aid on this evidence, at worst, is 

subject to different inferences. I cannot find that this after-thefact-of-the shooting conduct is enough to establish the requisite 

mental state for the crime, especially when combined with 

appellant’s youth.
8

D. What efforts did the defendant make to minimize the 

risks of violence during the felony?

There is no evidence one way or another about whether 

appellant minimized the risks inherent in the robbery. That one 

patron of the restaurant was targeted outside the building in a 

drive-thru line instead of a targeted invasion of the restaurant 

itself arguably is minimization, but whether that was in the mind 

of appellant at the time is speculation. This factor is neutral.

E. What was the defendant’s knowledge of his or her 

confederate’s propensity for violence or likelihood of 

using lethal force?

Appellant and the shooter were brothers who belonged to 

the same gang. There is no evidence about their respective roles 

in the gang. Appellant said he committed robberies and an arson 

(was present when others set a fire in the bed of a truck in an 

empty parking). His rap sheet includes juvenile adjudications for 

grand theft auto, taking a vehicle without the owner’s consent,

and one conviction for misdemeanor robbery. Although he 

started to carry a gun at age 18 for protection, he never used it as 

it was confiscated soon after he got it. He said he never pulled a 

trigger in his life. There is no evidence he and his brother had 

committed violent crimes together before this night. As gang 

membership alone does not demonstrate a propensity to commit 

lethal violence, I find this a neutral factor. (See Banks, supra, 

61 Cal.4th at pp. 810–811; In re Miller (2017) 14 Cal.App.5th 

960, 976 [although defendant and killer belonged to same gang 

and had committed follow-home robberies together, no evidence 

indicated they had ever participated in shootings, murder, or 

attempted murder].)
9

F. Age

Appellant was 18 years old when he agreed to participate 

in the robbery with his older brother. The United States 

Supreme Court has observed that the common byproducts of 

youth are immaturity, impetuosity, and the failure to appreciate 

risks and consequences, making it more likely that juveniles fail 

to appreciate the risks and consequences of their actions. They 

are more susceptible to peer pressure as well. (Miller v. Alabama

(2012) 567 U.S. 460, 471.) Although not a juvenile in the legal 

sense of the word, appellant was as young as an “adult” can be 

and age is an appropriate factor to consider along with the other 

Clark factors. (In re Harper, supra, 76 Cal.App.5th at p. 470; 

Ramirez, supra, 71 Cal.App.5th at p. 991; People v. Harris (2021) 

60 Cal.App.5th 939, 960, review granted on another ground, 

Apr. 28, 2021, S267802.)

Here the record shows appellant’s older brother suggested 

the robbery to which appellant agreed. Appellant was homeless 

on the night of the crime and was staying with his older brother. 

The record also reflects appellant was raised in foster homes 

after his PCP-addicted mother was taken to a psychiatric facility. 

His mother physically beat him and his father, who owned a 

business, left and started another family with another woman. 

Appellant recalled stealing a roasted chicken when he was 

10 years old because he was hungry. He was jumped into his 

older brother’s gang at age 15. He viewed his brother as the 

family member who cared about him, helped him deal with their 

mother’s addiction, and gave him a place to stay when he was 

homeless. Indeed, he joined the gang because of his brother. 

Appellant’s age under these circumstances weighs against a 

finding that he harbored reckless indifference to human life.
10

At the parole board hearing, appellant told the 

commissioners that as he sat in jail after his arrest, he reflected 

on the shooting and “knew something like this was going to 

happen because I was on the path of destruction.” To use that 

statement to infer that the 18-year-old appellant appreciated the 

full ramifications of his acts at the time of the robbery is a far 

and unfair stretch.

Considering the totality of the Clark factors, I cannot find 

the evidence sufficient to support the trial court’s finding of 

reckless indifference. All we know is an unarmed 18-year-old 

appellant agreed to participate in a robbery with his older 

brother as a lookout. The shooting appeared spontaneous; 

appellant only heard the shots and did not see the shooting. He 

was unable to intervene in the rapidly unfolding events. 

Assuming he stood lookout again when his brother searched the 

victim’s clothing for money, he also assumed the victim had 

already died when they came upon him in his crashed car. Under 

Clark, I cannot say appellant’s actions before and after the 

shooting and car crash are sufficient to establish the mental state 

of reckless indifference to human life. I would reverse the denial 

of the Penal Code3 former section 1170.954 petition and direct the 

trial court to vacate the murder conviction and resentence 

appellant as called for by the statute.

3 Undesignated statutory references are to the Penal Code.

4 Effective June 30, 2022, Penal Code section 1170.95 was 

renumbered section 1172.6, with no change in text (Stats. 2022, 

ch. 58, § 10).
11

II. Appellant’s Parole Board Testimony 

The only evidence the People used to prove “reckless 

indifference” were appellant’s own words when he answered the 

parole board’s necessarily circumscribed questions about the 

offense (for the commissioners told appellant “Nothing that 

happens here today is going to change the court findings as we’re 

not here to retry your case.”). Although I conclude the 

statements were insufficient to support the finding, I also 

conclude they never should have been used in the first place. 

Here, appellant was an unwitting witness against himself for, of 

course, he had no inkling he would later be entitled to a hearing 

where his conviction and sentence could be vacated under former 

section 1170.95, subd. (d). 

 I find appellant’s statements at the parole hearing 

inadmissible under the judicially devised exclusionary remedy of 

Coleman. Coleman held the People cannot use testimony given 

by a defendant at a probation revocation hearing against the 

defendant at a trial for the same underlying conduct. The 

Coleman Court found it fundamentally unfair to compel a 

defendant to choose between his right against self-incrimination 

at trial and his right to present mitigating evidence by way of 

testimony at a revocation hearing. Coleman sought to avoid the 

“ ‘cruel trilemma’ of self-accusation, perjury or injurious silence.” 

(Coleman, supra, 13 Cal.3d at p. 878.) 

 Here appellant has the right to present evidence at his 

parole board hearing or suffer possibly injurious silence. 

(§ 3041.5, subd. (a)(2).) Indeed, California encourages inmates to 

participate fully in parole hearings so that parole commissioners 

can make a fully informed decision about suitability for parole. 

(In re Shaputis (2011) 53 Cal.4th 192, 218 [an inmate’s insight 
12

into and remorse for the crime are critical factors in determining 

suitability for parole].)

On the other hand, appellant also has legislatively granted 

rights that govern former section 1170.95 evidentiary hearings to 

determine whether a conviction can be sustained after 

elimination of the former felony murder rule and natural and 

probable cause doctrine as theories of liability. The Legislature 

has decreed the rules of evidence apply, the right to counsel 

attaches, the People bear the burden of proof, and that proof 

must be beyond a reasonable doubt. Our Supreme Court has 

similarly interpreted the legislation to accord these rights. 

(People v. Gentile (2020) 10 Cal.5th 830; People v. Lewis (2021) 

11 Cal.5th 952.) The evidentiary hearing, then, is analogous in 

many respects to a bench retrial conducted on the record of the 

initial trial or plea and on additional admissible evidence each 

party may proffer. What appellant got, however, was a hearing 

based solely on self-accusation.

In passing Senate Bill No. 1437, the Legislature extended 

substantial constitutional rights by statute to eligible convicted 

felons and set up an elaborate mechanism by which eligibility is 

to be determined and convictions are to be re-proven, or, if not reproven, resentencing is to occur. It then later amended the 

statute by enacting Senate Bill No. 775 (2021–2022 Reg. Sess.) to 

clarify the unconditional nature of those rights. (Stats. 2021, ch.

551, § 2.) These statutes are not indicative of the Legislature’s 

simple intent to bestow lenity upon convicted defendants. The 

Legislature did not just change a monetary threshold separating 

misdemeanors and felonies, reduce sentencing maximums for 

particular types of crimes, make the imposition of mandatory 

enhancements discretionary, or eliminate sentencing options 
13

altogether. It effected a huge sea change in the way the taking or 

attempted taking of a life is now prosecuted in California. And in 

fashioning a remedy that retries eligible defendants with the 

protections of the right to counsel, the right to proof beyond a 

reasonable doubt, the right to be confronted only with evidence 

admissible under the Evidence Code, and the right to stand pat 

and insist that the People bear the burden of proof, the 

Legislature did not just offer reclassification of a conviction. 

Eligible convictions are not reclassified, but they are retried with 

the option of new evidence presented by either party. As was 

discussed, for example, in People v. Williams (2020) 

57 Cal.App.5th 652, in the initial version of Senate Bill No. 1437, 

the Legislature gave the courts “unfettered discretion” in 

determining what evidence to receive in ruling on a petition 

under former section 1170.95. (Id. at p. 661.) In the 

amendments set forth in Senate Bill No. 775, the Legislature 

expressly stated its intent that the Evidence Code govern the 

conduct of proceedings. (Former § 1170.95, subd. (d)(3).)

This framework is indicative of the Legislature’s intent 

that these evidentiary hearings be treated with the same 

solemnity and under the same rules as was the initial trial (albeit 

without a jury). Given the panoply of rights our Legislature has 

granted convicted defendants who file petitions under former 

section 1170.95, I would include in those rights the right against 

self-incrimination, for it goes hand-in-hand with imposing the 

burden of proof on the prosecution. (Coleman, supra, 13 Cal.3d at 

p. 876 [“The heavy burden thus placed upon the prosecution in a 

criminal trial to prove through its own investigation the guilt of 

the defendant may be substantially lightened if the prosecution is 

allowed to take advantage of the defendant’s testimony at a prior 
14

probation revocation hearing.”]) I surmise the People may have 

believed this as well because they did not call him to testify at the 

hearing, using the transcript of his statements instead.

The use of parole board statements as proof against a 

defendant at a former section 1170.95 evidentiary hearing 

unquestionably lessens the People’s burden of proof. This 

lessening is incompatible with the Legislature’s express 

imposition of that burden on the People unvarnished by any 

qualifications, exceptions, or conditions. Moreover, we have seen 

how the Legislature acted quickly to amend Senate Bill No. 1437 

to clarify its intent when courts limited or constricted provisions 

of the bill.

More to the point, use of appellant’s statements is 

fundamentally unfair, the only rationale upon which Coleman is 

premised. The point of Coleman was to ensure that rights which 

attach to different types of proceedings do not collide with each 

other when they are exercised. To those who say, “Well, no one 

forced appellant to make a statement to the parole 

commissioners,” I respond, “No one forced Coleman to make a 

statement at his probation revocation hearing.” Just as no one 

forced the defendant in Simmons v. United States (1968) 

390 U.S. 377 to file a suppression motion, yet the court held that 

his testimony at the suppression hearing could not be used 

against him at trial. Just as no one forced the defendant in 

People v. Knight (2015) 239 Cal.App.4th 1 to file a Marsden

motion, yet the court held that permitting the People access to 

defendant’s statements would impermissibly lighten their burden 

of proof at trial. (See also People v. Dennis (1986) 177 Cal.App.3d 

863 [use immunity applies to disclosures made in motion for new 

trial on grounds of ineffective assistance because disclosures 
15

could conceivably lighten the People’s burden of proof, 

implicating defendant’s right against self-incrimination].) 

Similarly, our Court in Coleman held the permitting defendants 

to fully exercise two competing rights without prejudice to either 

one is important enough to warrant a judicially devised remedy 

for what would otherwise be unfair.

Put another way, there is no right if its exercise comes with 

a price tag. Here appellant had a right to present mitigating 

albeit incriminating evidence at the parole hearing and he had a 

right against self-incrimination at an evidentiary hearing under 

former section 1170.95. The exercise of those rights should not 

collide.

I conclude Senate Bill No. 1437 and former section 1170.95 

are more than just acts of lenity. They created evidentiary and 

procedural rights and obligations that must not be abrogated. 

The only way to remain true to the Legislature’s intent to carry 

over, without prejudice, fundamental trial rights to evidentiary 

hearings under former section 1170.95, subdivision (d) is to apply 

Coleman’s judicially created remedy and exclude the parole board 

testimony.

I find the trial court erroneously admitted the appellant’s 

parole board testimony. The error is not harmless. (People v. 

Watson (1956) 46 Cal.2d 818 [error is not harmless if it is 

reasonably probable that a result more favorable to the appealing 

party would have been reached in the absence of error].) Here 

appellant’s testimony was the only evidence considered by the 

trial court in determining that appellant acted with reckless 

disregard of human life. It is reasonably probable the result 
16

would have been more favorable to him without this evidence. 

The trial court’s order should be reversed.

STRATTON, P. J.