People v. Anderson ( 2022 )

Filed 4/28/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A162633
v.
RONALD RAY ANDERSON, (Alameda County
Super. Ct. No. 69119)
Defendant and
Appellant.
In 1979, defendant Ronald Ray Anderson was tried for the
murders and robberies of Phillip and Kathryn Ranzo, as well as
for burglarizing their home. In the same trial, Anderson was also
tried for the separate robbery of Leonard Luna. With respect to
the Ranzos, the jury convicted Anderson of two counts of first
degree murder, two counts of robbery, and one count of burglary,
and his convictions were affirmed on appeal. In this appeal from
the denial of Anderson’s Penal Code1 section 1170.95 petition,
Anderson argues that the trial court prejudicially erred by
admitting in his section 1170.95 evidentiary hearing testimony
from Anderson’s parole suitability hearings, when that testimony
should have been excluded under the reasoning of People v.
All further statutory references are to the Penal Code
1
unless otherwise indicated.
1
Coleman (1975) 13 Cal.3d 867 (Coleman). We affirm the trial
court’s order denying Anderson’s section 1170.95 petition because
we conclude that Anderson has not established that the trial
court erred in considering testimony from his parole suitability
hearings.2
BACKGROUND
We set forth below the factual recitation from the 1982
unpublished appellate opinion affirming Anderson’s convictions.
Leonard Luna was taking care of the home of
Bernard Marks, his employer, who was out of town
on Sunday, June 24, 1979. The home was located at
3307 West Stuhr Road, Newman.
Between 11:30 p.m. and midnight on June 24,
two young men came to the door and asked Luna if
he could sell them some gasoline because their car
was empty. The two left after Luna provided them
with some gasoline, but returned about 15 minutes
later and asked if they could use the telephone. As
they appeared to be leaving, one of the men turned
round with a pistol in his hand and told Luna to hit
the floor and close his eyes. Luna complied and then
heard a car drive up in front of the house and some
more people enter it. He did not know exactly how
many.
2Anderson has also filed a petition for a writ of habeas
corpus, which we have considered together with this appeal. We
dispose of the writ by separate order.
2
After being hit on his head, Luna was taken
into the den where he was placed on a couch and
“hog-tied.” His hands were tied behind his back and
also tied to his feet. On two occasions a person he
later identified as Marty Jackson, also known as
Marty Spears, said he wanted to “blast” Luna
because Luna had seen Jackson’s face. Luna was
later able to identify Marty Jackson (Spears) and
Daniel Geysler as the two who had first come to the
door. A large safe on wheels, several guns, a
switchblade knife and two watches were missing
from the Marks home and it showed signs of having
been ransacked.
On June 26, 1979, the bodies of Phillip and
Kathryn Ranzo were found at their residence at 1404
Fernview Drive in Modesto. They had failed to
appear at their respective places of employment and
James Blomquist, Phillip’s boss at the pharmacy
where he worked, and Carolyn Shaffer, an employee
of the beauty salon owned by Kathryn, went to the
Ranzo residence. Carolyn Shaffer had called the
police because of her concern before going to the
Ranzo residence. Blomquist, having found the front
door locked, looked in the garage and found Phillip’s
body lying on the floor. The police arrived about five
minutes later.
3
Officer Hamilton, who had responded to the
prior call for a security check of the Ranzo residence,
was shown the body of Phillip Ranzo [by] Bloomquist
and they then sought to gain entrance to the house.
The officer finally had to force a third level door. In
the upstairs bathroom the nude body of Kathryn
Ranzo was found lying on the floor.
The bodies of both victims had been tied with
hands behind the back and also tied to the feet. The
cause of death for each was bleeding from multiple
stab wounds and the severing of arteries. Phillip had
also been hit over the head with a blunt instrument
at least six times, causing severe fragmentation of his
skull. His wife had also been struck on the head
several times with the back of an axe found in the
hall next to the bathroom.
The rope used to tie the Ranzos appeared to be
identical to that used on Luna in the Newman
robbery. The knife wounds sustained by Kathryn
Ranzo were of a different kind than those sustained
by her husband. Dr. Ernoehazy, Stanislaus County
pathologist, testified that her wounds could have
been caused by the switchblade knife taken in the
Newman robbery.
Officer Hamilton arrived at the Ranzo
residence at about 2:15 p.m. of June 26, 1979. Dr.
Ernoehazy was summoned and arrived there about 4
4
p.m. It was his opinion that the time of the death of
each of the victims was about 16 hours prior to his
first examination of the bodies. He fixed the time of
their deaths at between 11 p.m. June 25 and 1 a.m.
June 26.
The office area and the master bedroom of the
Ranzo residence had been ransacked, with drawers
pulled out and money, checks, papers and jewelry on
the floor. Some money, a Browning automatic
shotgun and two pendants, one with diamonds, were
found missing by Sam Ranzo, father of the victim
Phillip.
On the evening of June 25, 1979, Kathryn and
Phillip Ranzo had had dinner at their home with
their 10-year-old son, Mark, Phillip’s parents, Sam
and Marie Ranzo, Mark’s friend, Michele Hermann
and two of Mark’s cousins, Mike and Michele
Narzano. Later in the evening the four children and
the grandparents went to the grandparents’ home,
about one block away and around the corner from the
victims’ home. Mark spent the night with his
grandparents.
The children played outside the grandparents’
home after dinner. They recalled, in substance, that
they had seen an old blue vehicle, with a pickup body,
drive by very slowly several times. There were four
young male passengers, three in front and one in the
5
pickup portion in the back. The back also contained
some boxes and a trash can. They first saw it around
9:45 p.m. They told grandmother Marie about it and
she observed it stopping and backing up at the end of
their lot. It was last seen by them about 11:15 p.m.
and was then going quite fast.
One neighbor had seen the older model blue El
Camino Chevrolet cruising at low speed in front of
his house at 1416 Fernview Drive on the afternoon of
June 25 between 3 and 5 p.m. His attention was
attracted to it because it sounded like “an inboard
motorboat” and he thought it had a blown muffler.
There were two young men in it, one of whom had
hair of the same color as [Anderson]. The occupants
were “kind of looking around at the houses.”
Another neighbor who lived at 1413 Fernview
Drive, across the street from the Ranzo residence,
was walking his dog along that street on the evening
of June 25. He saw Phillip Ranzo working on one of
his autos in the garage at about 10:30 to 11 p.m. He
later went to bed and was awakened around
midnight by the sound of screeching tires. He got up
and looked out the window and saw what looked like
a 1959 bluish green El Camino pickup driving at a
faster speed than normal along the street in front of
his house. It had a noisy muffler. There were two
people in the vehicle. He identified a slide picture,
6
16-G in evidence, as that of the vehicle which he had
seen that night.
In addition to the facts set forth above from the appellate
opinion, the record before us in this appeal contains evidence
from trial establishing that Anderson lived with Jackson, and
Jackson, Anderson, and two others, D.L. and J.M.—all
teenagers—went to the Ranzos’ home to commit burglary and
robbery. They targeted the Ranzos’ home because they believed
large amounts of cash were kept therein, and Anderson admitted
to Jackson’s brother after the robbery that they had committed
the robbery. Anderson drove with Jackson around the Ranzos’
neighborhood in Jackson’s El Camino multiple times in the hours
before the robbery. Anderson knew at least one of his
confederates was armed with a pistol when he went into the
Ranzos’ house because Anderson told detectives that he saw a
pistol in J.M.’s waistband, and he also said that Jackson grabbed
rope from the vehicle and carried it away from the car.
According to trial transcripts, Anderson told police that,
before leaving Jackson’s house to execute the robbery of the
Ranzos, he “overheard” Jackson and the others discussing the
possibility of killing the Ranzos, although Anderson claimed he
was not involved in the discussion. A police detective testified at
trial that Anderson said once they arrived at, and were about to
enter the Ranzos’ house, Jackson for the second time talked to
the others about killing the Ranzos. Anderson told police that he
“didn’t enter into the conversation.” The jury heard evidence that
Anderson’s then-girlfriend told investigators that Anderson said
7
his role was to wait outside in the El Camino and, if necessary,
signal his confederates by driving around and honking if anyone
came. Anderson also told investigators he “considered himself as
the watchman.”
When Anderson’s three confederates went into the Ranzos’
home, Anderson remained with the truck. According to
Anderson, D.L. and J.M. returned to the truck about 20 minutes
later with a manila envelope, leaving Jackson inside the house.
D.L. and J.M. came running back and were excited. Anderson,
who had the keys to the truck, took D.L. and J.M. to a nearby
apartment building and then returned to the same parking spot.
After Anderson picked Jackson up, they went in search for J.M.
and D.L. They found J.M.’s brother, D.M., at Lisa Swenson’s
house in the early morning hours of June 26, 1979. Swenson
testified that Jackson admitted killing two people because they
had seen him. D.M. testified that Jackson said that he had just
killed two people, and Anderson asked David where his brother
(J.M.) was and threatened to kill D.M. if he did not tell Anderson.
Jackson’s father testified that, at about 3:30 a.m. on June
26, 1979, Anderson and Jackson were back at their home and had
an envelope full of cash out on the kitchen table that Jackson had
brought in from outside the home. After counting the money,
Jackson and Anderson each took their share. Jackson’s mother
testified that, while generally discussing the Ranzos, Anderson
told her that “it was a bad scene. . . . It would have made you
sick.”
8
Anderson was charged by information with two counts of
murder (§ 187), three counts of robbery (§ 211), and one count of
first degree burglary (§§ 459, 460, subd. (a)), with a gun
enhancement for each count.3 The jury found Anderson guilty as
charged, and he was sentenced to 25 years to life.
In 2019, Anderson filed a pro se petition seeking relief
under section 1170.95 after the Legislature enacted Senate Bill
No. 1437. The court appointed counsel for Anderson, ordered
preliminary briefing, and then issued an order to show cause.
Prior to the hearing on the petition, Anderson sought to exclude
from the court’s consideration his testimony from prior parole
suitability hearings, arguing that such testimony should be
excluded under Coleman and similar authorities. The court
denied the motion, reviewed the materials submitted by the
parties relating to the petition, and held a hearing. The court
denied Anderson’s petition, finding the prosecution had
established beyond a reasonable doubt that Anderson could be
convicted of felony murder as a major participant in an
enumerated felony who acted with reckless indifference to human
life and that he could also be found guilty under a direct aiding
and abetting theory.
Anderson timely appealed the trial court’s denial of his
section 1170.95 petition.
3Counts 1 through 5 (two counts of murder, two counts of
robbery, and one count of burglary) pertain to the Ranzos and
count 6 (robbery) pertains to Luna.
9
DISCUSSION
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018
Reg. Sess.) changed the law of homicide by amending the felony
murder rule and the natural and probable consequences doctrine
as it relates to murder. (People v. Gentile (2020) 10 Cal.5th 830,
842–843; Stats. 2018, ch. 1015 § 1.)4 Senate Bill No. 1437 also
enacted section 1170.95 to provide a procedure for those convicted
of felony murder or murder under the natural and probable
consequences doctrine prior to Senate Bill No. 1437’s enactment
to seek relief. (Gentile, at p. 843; Stats. 2018, ch. 1015, § 3.)
Under the version of section 1170.95 effective at Anderson’s
hearing,5 a person seeking relief had to file a petition in superior
4 Senate Bill No. 1437 added section 189, subdivision (e) to
the felony murder rule and added subdivision (a)(3) to section
188. (People v. Gentile, supra, 10 Cal.5th at pp. 842–843; Stats.
2018, ch. 1015 §§ 2–3.) The former provision provided, “A
participant in the perpetration or attempted perpetration of
[qualifying felonies] in which a death occurs is liable for murder
only if one of the following is proven: [¶] (1) The person was the
actual killer. [¶] (2) The person was not the actual killer, but,
with the intent to kill, aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person was a
major participant in the underlying felony and acted with
reckless indifference to human life . . . .” (§ 189, subd. (e)(3).)
The latter provision states, “Except [for felony murder liability]
as stated in subdivision (e) of Section 189, in order to be convicted
of murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based
solely on his or her participation in a crime.” (§ 188, subd. (a)(3).)
5 Effective January 1, 2022, the Legislature amended
section 1170.95 in several ways, none of which is relevant to our
analysis here. (Stats. 2021, ch. 551, § 2.) We reference only the
version of the statute applicable at Anderson’s hearing.
10
court declaring, among other things, that he or she “could not be
convicted of first or second degree murder because of changes to
Section 188 or 189” (former § 1170.95, subd. (a)(3)); the trial court
then had to determine if the petitioner made a prima facie
showing that he or she fell within the provisions of the statute,
and, if so, it had to issue an order to show cause and hold a
hearing to determine whether to vacate the murder conviction
and to resentence the petitioner on any remaining counts (id.,
subds. (c), (d)(1)). At the evidentiary hearing under section
1170.95, subdivision (d)(1), the prosecution had to “prove, beyond
a reasonable doubt, that the petitioner is ineligible for
resentencing.” (Id., subd. (d)(3).)
In his appeal from the trial court’s order denying his
section 1170.95 petition, Anderson contends the court
prejudicially erred in admitting his testimony from prior parole
suitability hearings because he should have been afforded use
immunity for such testimony.6 Defendant relies on Coleman and
similar decisions to argue that statements made in a parole
suitability hearing should be deemed inadmissible in a section
1170.95 evidentiary hearing. In response, the Attorney General
points out that People v. Myles (2021) 69 Cal.App.5th 688 (Myles)
recently rejected a similar argument. As explained below,
6 Anderson does not argue on appeal that the evidence
admitted at his section 1170.95 evidentiary hearing was
insufficient to support the trial court’s finding that he was a
major participant in the designated felonies who acted with
reckless disregard for human life.
11
Anderson does not establish that he is entitled to use immunity
or that Myles was incorrectly decided.7
In Myles, as Anderson does here, the defendant relied on
Coleman and related authorities to argue that, in her section
1170.95 evidentiary hearing, she was entitled to use immunity
for her statements and testimony in connection with her parole
suitability proceedings. (Myles, supra, 69 Cal.App.5th at p. 704.)
Our colleagues in Division One disagreed.
First, our colleagues reviewed Coleman. “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 court reasoned that a defendant should not be compelled to
choose between the privilege against self-incrimination at trial
and the exercise of the right to be heard at a probation revocation
hearing. [Citation.] To resolve the tension between competing
rights, the court created a ‘ “judicially declared exclusionary
rule” ’ that a probationer’s revocation hearing testimony is
inadmissible during the prosecution’s case-in-chief. 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
7Anderson testified at a number of parole suitability
hearings throughout the years. Given our denial of Anderson’s
claim that this testimony was improperly admitted, we need not
describe this testimony herein.
12
privilege against self-incrimination at his subsequent trial.’ ”
(Myles, supra, 69 Cal.App.5th at p. 705.)
Myles next found the defendant’s reliance on Coleman and
its progeny unavailing: “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. Tom (2014)
59 Cal.4th 1210, 1223, 1222 [ ].) A section 1170.95 hearing,
however, ‘ “is not a trial de novo on all the original charges.”
[Citation.] Rather, it is a postconviction proceeding “due to the
Legislature’s inclusion of section 1170.95 in Senate Bill
No. 1437 . . . , [as] an ‘act of lenity’ [citation], allowing for the
retroactive application of the new law governing accomplice
liability for felony murder [citation] for defendants already
serving valid sentences for murder.” ’ ” ([People v.] Williams
[(2020)] 57 Cal.App.5th [652,] 661, quoting People v. Wilson
[(2020)] 53 Cal.App.5th [42,] 53; see, e.g., People v. Anthony
[(2019)] 32 Cal.App.5th [1102,] 1156 [§ 1170.95 petitioners do not
have 6th Amend. trial rights].) Because a sentence modification
under section 1170.95 is an act of lenity and not a criminal trial,
the wrongful admission of evidence does not implicate
defendant’s constitutional rights under the Fifth Amendment.”
(Myles, supra, 69 Cal.App.5th at pp. 705–706.)
Finally, Myles rejected the defendant’s argument that use
immunity should have been recognized for the additional reason
that the Fifth Amendment protects individuals from government
coercion, but “defendant was not compelled to file a section
13
1170.95 petition, nor to testify at her parole hearing, nor to
participate in her risk assessment interview. Indeed, as the trial
court noted and defendant acknowledges, parole cannot be
conditioned on admission of guilt to a certain version of the
crime. (§ 5011, subd. (b); Cal. Code Regs., tit. 15, § 2236; In re
Swanigan (2015) 240 Cal.App.4th 1, 14 [parole board cannot rely
on fact that inmate insists on his innocence to deny parole]; In re
McDonald (2010) 189 Cal.App.4th 1008, 1023 [“ ‘the express
provisions of Penal Code section 5011 and section 2236 of title 15
of the California Code of Regulations prohibit requiring an
admission of guilt as a condition for release on
parole’].) . . . Having chosen to be truthful in the assessment
interview and testify truthfully at the parole hearing, it is not
fundamentally unfair to admit that information during a
resentencing proceeding voluntarily initiated by defendant
bearing on some of the same issues.” (Myles, supra,
69 Cal.App.5th at pp. 705–706.)
Anderson argues that Myles is incorrect because Coleman
was not decided on constitutional grounds, therefore “whether
the Fifth Amendment is applicable to a section 1170.95
proceeding is not determinative as to whether Coleman should
apply.” In so arguing, Anderson ignores the fact that a central
justification for the creation of Coleman’s exclusionary rule was
the need to protect a defendant’s constitutional privilege against
self-incrimination.
In Coleman, the district attorney initiated probation
revocation proceedings on grounds that were also the basis for
14
independent criminal charges, and the court revoked the
defendant’s probation after he declined to testify at the
revocation hearing. (Coleman, supra, 13 Cal.3d at p. 871.) The
defendant argued that holding the probation revocation hearing
prior to his criminal trial denied him procedural due process
because he was forced to forego the opportunity to testify at his
revocation hearing to avoid incriminating himself at trial. (Ibid.)
Observing that federal law did not clearly require a grant of
immunity for the probation revocation testimony, our Supreme
Court declined to decide the constitutional question. (Id. at
pp. 878, 888–889.) Instead, it fashioned a “judicial rule of
evidence” providing that, upon objection, the defendant’s
probation revocation hearing testimony and evidence derived
therefrom is inadmissible against the probationer during
subsequent proceedings on the related criminal charges, save for
impeachment or rebuttal. (Id. at p. 889.) The rationale for this
rule was “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” (Myles, supra, 69 Cal.App.5th at p. 705), and the court
made clear that its rule afforded protection “ ‘coextensive with
the scope of the privilege against self-incrimination.’ ” (Coleman,
at p. 892, citing Kastigar v. United States (1972) 406 U.S. 441,
453, 461.) Thus, 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.
15
Indeed, all the use immunities in the authorities upon
which Anderson relies prevented evidence elicited in various
proceedings from being introduced against a defendant as
evidence of guilt in a subsequent criminal or juvenile delinquency
proceeding. (See, e.g., Bryan v. Superior Court (1972) 7 Cal.3d
575, 586–589 [statements made by a minor to probation officer
and to court in a fitness hearing could not be introduced as
substantive evidence against minor in criminal trial]; In re
Wayne H. (1979) 24 Cal.3d 595, 602 [minor’s statements to
probation officer inadmissible for any purpose to prove criminal
guilt in juvenile or adult proceeding]; In re Jessica B. (1989)
207 Cal.App.3d 504, 521 [statements made by parent in therapy
ordered by dependency court inadmissible in parent’s criminal
trial]; Sheila O. v. Superior Court (1981) 125 Cal.App.3d 812,
816–817 [testimony given by juvenile at fitness hearing
inadmissible in later criminal proceedings]; People v. Dennis
(1986) 177 Cal.App.3d 863, 876 [defendant’s disclosures in
support of a motion for a new trial based upon ineffective
assistance of counsel inadmissible in subsequent criminal trial];
People v. Knight (2015) 239 Cal.App.4th 1, 5–8 [statements made
in support of Marsden8 motion inadmissible in criminal trial].)
Our Supreme Court has described Coleman and its progeny as a
“number of decisions by this court granting use immunity in
other contexts in which it would be unfair to require the
defendant to choose between maintaining a privilege and
asserting other important rights.” (People v. Ledesma (2006)
8 People v. Marsden (1970) 2 Cal.3d 118.
16
39 Cal.4th 641, 692, 694–695, italics added [holding disclosure of
attorney-client privileged information in a habeas proceeding
premised on ineffective assistance pursuant to Evidence Code
section 958 did not waive the privilege for purposes of defendant’s
criminal retrial].)
Ten years after Coleman, in two separate decisions, our
Supreme Court held that the California Constitution’s privilege
against self-incrimination mandated the grant of Coleman’s use
immunity and a similar use immunity for testimony that a minor
gives at a fitness hearing and statements the minor makes to her
probation officer in connection with that hearing. (Ramona R. v.
Superior Court (1985) 37 Cal.3d 802, 808, 810 (Ramona R.);
People v. Weaver (1985) 39 Cal.3d 654, 659–660 [addressing
Coleman’s use immunity].) In Ramona R., the first of the two
decisions, the issue our Supreme Court addressed was whether
use immunity for testimony that a minor gave at a fitness
hearing or statements she made to her probation officer remained
viable given the passage of Proposition 8, which added section 28,
subdivision (d), to article I to the California Constitution.9 In
9Proposition 8 enacted what has been deemed the “Right-
to-Truth-in-Evidence” provision in 1982, and it has since been
redesignated as article I, section (f)(2) of the California
Constitution. (People v. Guzman (2019) 8 Cal.5th 673, 677, fn. 3.)
This provision states, “Except as provided by statute hereafter
enacted by a two-thirds vote of the membership in each house of
the Legislature, relevant evidence shall not be excluded in any
criminal proceeding, including pretrial and post conviction
motions and hearings, or in any trial or hearing of a juvenile for a
criminal offense, whether heard in juvenile or adult court.
Nothing in this section shall affect any existing statutory rule of
17
Ramona R., our Supreme Court examined the genesis of
Coleman’s use immunity and explained that it was necessary to
protect the privilege against self-incrimination. (Ramona R., at
p. 809 [“Coleman examined in depth the need for use immunities
in probation hearings to protect the privilege against self-
incrimination.”].) The court acknowledged that it had declined to
rest Coleman’s holding on constitutional grounds, “but only
because we deemed such a determination to be unnecessary, as
‘our judicially declared exclusionary rule provides protection
“coextensive with the scope of the privilege against self-
incrimination.” ’ ” (Ramona R., at p. 809, italics added.) The
court then held that the use immunity at issue therein was
essential to our state constitutional privilege against self-
incrimination and was reflected in Evidence Code section 940.10
(Ramona R., pp. 808–809; People v. Weaver, at pp. 659–660
[Coleman’s use immunity survived enactment of Right-to-Truth-
in-Evidence provision for same reasons stated in Ramona R.]; see
People v. Carter (1993) 19 Cal.App.4th 1236, 1248 [“Though
Coleman expressed its holding in terms of a judicially devised
exclusionary rule, later cases have treated Coleman as creating a
limited species of use immunity grounded in California’s
constitutional guarantee against self-incrimination”].) Where the
evidence relating to privilege . . . .” (Cal. Const., art. I, § 28,
subd. (f)(2).)
10This statute provides, “To the extent that such privilege
exists under the Constitution of the United States or the State of
California, a person has a privilege to refuse to disclose any
matter that may tend to incriminate him.” (Evid. Code, § 940.)
18
privilege against self-incrimination is not implicated, the
rationale for immunities at issue in Coleman and Ramona R.
disappears.
Accordingly, the authorities upon which Anderson relies
demonstrate that his argument requires him to establish that a
constitutional privilege against self-incrimination applied in his
section 1170.95 evidentiary hearing. Yet Anderson makes only
the conclusory assertion that he “had a constitutional privilege
against self-incrimination”, and he fails to provide any reasoned
supporting argument. Addressing Myles, he does not argue that
the decision was incorrect because a constitutional privilege
against self-incrimination in fact applied in his section 1170.95
evidentiary hearing, nor does he argue that the California
Constitution or United States Constitution required the exclusion
of his parole suitability testimony. Indeed, the United States
Supreme Court has held that the Fifth Amendment applies
through original sentencing, but has stated that incrimination is
complete in cases in which the sentence has been fixed and the
judgment of conviction has become final. (Mitchell v. United
States (1999) 526 U.S. 314, 326 [“If no adverse consequences can
be visited upon the convicted person by reason of further
testimony, then there is no further incrimination to be feared.”];
see In re Tapia (2012) 207 Cal.App.4th 1104, 1111, fn. 3 [noting
in dicta that parolee’s privilege against self-incrimination ended
when his conviction became final].)
For the reasons set forth above, we conclude, as did the
court in Myles, that “defendant has not demonstrated that the
19
same principles and rationale underlying the judicially created
exclusionary rule formulated in Coleman and applicable in
criminal trials apply in [his] section 1170.95 resentencing
hearing.” (Myles, supra, 69 Cal.App.5th at p. 706.) The trial
court thus did not err in considering Anderson’s testimony from
his parole suitability hearings.
DISPOSITION
The order denying Anderson’s section 1170.95 petition is
affirmed.
BROWN, J.
WE CONCUR:
POLLAK, P. J.
STREETER, J.
People v. Anderson (A162633)
20
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Morris D. Jacobson
Counsel: Matthew Alger, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance Winters and Jeffrey
M. Laurence, Assistant Attorneys General, René A. Chacón
and Juliet B. Haley, Deputy Attorneys General for Plaintiff
and Respondent.