THE PEOPLE, Plaintiff and Respondent, v. ELNORA MYLES, Defendant and Appellant.
A161450
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Filed 9/29/21
CERTIFIED FOR PUBLICATION; (Alameda County Super. Ct. No. 150006)
immunity for statements made in connection with her parole suitability hearing. We conclude the trial court did not err, but even if it did, any error was harmless under the circumstances of this case. Accordingly, we affirm.
A. The Murder and Defendant‘s Guilty Plea2
Defendant reported the victim, Cedric White, missing in February 2004. At the time, defendant was living in White‘s home. In April, police executed a search warrant in the home. They found White‘s body wrapped in cellophane and entombed beneath a basement workbench, hidden behind installed particleboard. An autopsy revealed signs of blunt trauma to his head. Police also found evidence that defendant had used White‘s identification to open a number of credit accounts in his name, with defendant as an authorized user. Purchases on the accounts totaled over $13,000.
When defendant was questioned by police about White‘s whereabouts, she first indicated she had last seen him a week before, leaving in a cab with a lady friend, headed to China to celebrate the completion of his “‘Jazz history‘” book. In a letter to the probation department, the prosecutor represented that during one interview with police, defendant claimed White was killed by a fall down the stairs, which occurred during an argument with defendant. Defendant told police a female boarder was in White‘s house at the time of the argument “but [defendant] was vague about what [the boarder] saw or did.” When police interviewed the boarder, she “adamantly denied” being present.
On May 27, 2005, an information was filed charging defendant with murder (
Defendant entered a plea of no contest to second degree murder in exchange for dismissal of the other charges and the great bodily injury allegation. Her counsel stipulated to a factual basis for the plea based on the preliminary examination and discovery. After unsuccessfully seeking to withdraw her plea, defendant was sentenced to 15 years to life in prison.
Defendant appealed, and we affirmed the judgment in a nonpublished opinion, People v. Myles, supra, A114630.
B. Defendant‘s Resentencing Petition
In January 2019, defendant filed a petition for resentencing under
The prosecution sought to admit defendant‘s statements from a comprehensive risk assessment report (parole risk assessment) and parole suitability hearing (parole hearing transcript). In the statements, defendant admitted killing White and specifically stated she hit him with a metal water bottle, entombed him in his own house, took advantage of things he owned, and lied to his family. Defendant said her boyfriend and children were not in the house when she hit White and her boyfriend “didn‘t have a role” in the murder. Defense counsel objected to the court‘s consideration of the parole
risk assessment and parole hearing transcript, arguing the evidence was subject to use immunity, and even if it were admissible, it would be admissible only for impeachment purposes. The trial court ruled that use immunity did not apply and admitted the evidence.
At the conclusion of the
“And, [defense counsel], you‘ve pointed to other people who could potentially be involved, but there‘s no indication in the police reports or the preliminary hearing that those people were involved; and, in fact, [defendant], when asked that question specifically at the parole hearing, confirmed that no one else was involved.
“So one layer is that the theories that are necessary to get relief under [section] 1170.95 are not at play in this case.
“The second basis for denying relief is I find that [defendant] is the actual killer in this case. She‘s not vicariously liable here. She‘s directly liable. And so for that reason I find that she is not entitled to relief under Section 1170.95.”
Defendant timely appealed.
A. New or Additional Evidence
Defendant contends the trial court could not consider either the parole risk assessment and the parole hearing transcript at her
1. Applicable law
Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019 (Senate Bill 1437), revised the felony-murder rule and natural and probable consequences doctrine in California “to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f); People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) The bill amended the definition of malice in
doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.”
If the trial court determines, under
2. Forfeiture
The Attorney General contends defendant has forfeited her challenge to the admissibility of the parole risk assessment and parole hearing transcript on the basis they are not “new or additional evidence” within the meaning of
A defendant may not challenge the admissibility of evidence on appeal if he or she failed to raise a proper objection on those grounds in the trial court. (
basis for reversal of judgment unless “an objection to or a motion to exclude or to strike the evidence . . . was timely made and so stated as to make clear the specific ground of the objection or motion“]; People v. Anderson (2001) 25 Cal.4th 543, 586 [“a challenge to the admission of evidence is not preserved for appeal unless a specific and timely objection was made below“].) “The objection requirement is necessary in criminal cases because a ‘contrary rule would deprive the People of the opportunity to cure the defect at trial and would “permit the defendant to gamble on an acquittal at his [or her] trial secure in the knowledge that a conviction would be reversed on appeal.“‘” (People v. Partida (2005) 37 Cal.4th 428, 434.) Although defendant objected below that the evidence should be subject to use immunity and should be used only for impeachment, she did not object that the evidence was inadmissible under the language of
Defendant urges us to conclude that any specific failure to object was not required or should be excused. She relies on several exceptions to the general rule of appellate procedure that points not raised in the trial court will not be considered on appeal. She argues that whether the parole risk assessment and parole hearing transcript are “new or additional evidence” is a question of law on undisputed facts, is an unsettled question, and presents an important legal issue for our consideration. Our general authority to exercise
evidence” unless timely and specific objection is made in the trial court].) Our Supreme Court clarified this principle in People v. Williams (1998) 17 Cal.4th 148. Discussing the rule that “[a]n appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party,” the court explained the appellate court “is in fact barred when the issue involves the admission (
Even were we to review defendant‘s claim on the merits, however, we would reject it.
3. Statutory Construction
Defendant argues the parole risk assessment and parole hearing transcript do not constitute “new or additional evidence” within the meaning of
“The proper interpretation of a statute is a question of law we review de novo. [Citations.] ‘“‘As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature‘s intent so as to effectuate the law‘s purpose. [Citation.] We begin by examining the statute‘s words, giving them a plain and commonsense meaning.‘“’ [Citation.] ‘[W]e look to the entire substance of the statute . . . in order to determine the scope and purpose of the provision . . . . [Citation.]’ [Citation.] That is, we construe the words in question ‘in context, keeping in mind the nature and obvious purpose of the statute . . . .’ [Citation.]’ [Citation.] We must
harmonize ‘the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole.‘“‘” (Lewis, supra, 11 Cal.5th at p. 961.) “If no ambiguity appears in the statutory language, we presume that the Legislature meant what it said, and the plain meaning of the statute controls.” (People v. Blackburn (2015) 61 Cal.4th 1113, 1123.) “We will follow that meaning unless doing so would lead to absurd results the Legislature did not intend.” (People v. Betts (2020) 55 Cal.App.5th 294, 298.)
Here, the
A construction of the statute that takes a broad view of “new or additional evidence” also comports with the purpose of the statute. (Lewis,
supra, 11 Cal.5th at p. 961 [courts must construe statute in light of statutory purpose].) At the evidentiary hearing, the prosecution must prove, beyond a reasonable doubt, that the defendant is ineligible for resentencing. (
provision allowing both parties to present evidence available for the first time postconviction enables them to meet their respective burdens of proof. (See, e.g., People v. Rodriguez (2020) 58 Cal.App.5th 227, 239-240, review granted Mar. 10, 2021, S266652 [rejecting harmless error standard for a trial court at
Defendant argues, however, that the plain meaning of “new” creates an “ambiguity or potential ambiguity” because it “can mean an unlimited variety of evidence created at any time or something previously in existence but recently acquired.” (Italics added.) In support of her argument the statutory language means only the latter, defendant asks us to look to the legislative history of
The first version of Senate Bill 1437, as introduced on February 16, 2018, required the trial court, upon receipt of a petition, to “request” copies of the charging documents, the abstract of judgment, the reporter‘s transcript of any plea, the sentencing transcript, the verdict forms from any trial, and “[a]ny other information the court finds relevant to its decision, including information related to the charging, conviction, and sentencing of the
petitioner‘s codefendants in the trial court.” (Sen. Bill No. 1437 (2017-2018 Reg. Sess.) as introduced Feb. 16, 2018, § 6.) The original version of the bill then directed the trial court to notify the prosecution and defense, request a response, and if the evidence was sufficient that the petitioner falls within the provisions of the statute, hold a hearing to determine whether the petitioner was entitled to be resentenced. (Ibid.)
Subsequently, the Senate amended Senate Bill 1437 to permit only the petitioner at a
Defendant contends this progression shows the drafter‘s intention was to test a potentially eligible conviction based on the evidence “surrounding the original trial.” She argues that intent was stated in the original version of the statute because eligibility for relief depended on evidence adduced at the original trial against the petitioner or against a codefendant in a separate trial. But in allowing evidence from the separate trial of a codefendant, the original version of the statute reflects legislative intent to allow evidence
beyond the petitioner‘s record of conviction. If a separate trial took place after the petitioner‘s conviction, for example, evidence, including testimony, introduced at the codefendant‘s trial may not have been “in existence” at the time of the petitioner‘s trial. Moreover, the originally proposed language broadly allowed the trial court to consider “[a]ny other information the court finds relevant to its decision.” (Sen. Bill No. 1437 (2017-2018 Reg. Sess.) as introduced Feb. 16, 2018, § 6, ch. 16.) Such language does not reflect an intent to limit evidence to that available at the time of the petitioner‘s conviction.
Defendant also recognizes the second version of Senate Bill 1437, which allowed only the petitioner to offer new or additional evidence, “suggests the Legislature wanted to give the petitioner, among other things, the ability to testify at a resentencing hearing if he had chosen to exercise his Fifth Amendment right to remain silent at trial.” Clearly, a defendant testifying at a
Defendant next acknowledges the Legislature “[a]pparently realiz[ed] the inequity” in the language of the second version of Senate Bill 1437 that allowed only the defendant to present new or additional evidence, and thus amended the statute to allow both parties to introduce new evidence. But defendant contends the change allowing both parties to present such evidence “did not signal the Legislature‘s intent to open the door to any and every piece of potential evidence, including evidence that was not available at the time of the underlying guilt proceeding, and created after the final judgment.” Defendant fails to explain, however, how the amendment allowing the prosecution as well as the defense to present new or additional evidence reflects an intent to limit evidence to that available at the time of conviction.
Nor are we persuaded that the legislative amendments were formulated to address concerns expressed by the California District Attorneys Association (CDAA) as defendant argues. Defendant points to the fact that the CDAA opposed the original and second versions of Senate Bill 1437 in part because the bill would “require the litigation of facts previously not litigated in the original case, particularly in cases that resolved through a plea.” (Sen. Com. on Pub. Safety, History and Comments on Sen. Bill No. 1437 (2017-2018 Reg. Sess.) as introduced Feb. 16, 2018, for hearing on Apr. 24, 2018, p. 10; Assem. Com. on Pub. Safety, Sen. Bill No. 1437 (2017-2018 Reg. Sess.) as amended May 25, 2018, for hearing on June 26, 2018, p. 8.) Defendant argues the Legislature “obviously took these concerns seriously, as it changed the language and ultimately enacted the legislation
in its present state.” To the contrary, however, the CDAA‘s comment specifically argued that “by placing the burden on the prosecution to prove beyond a reasonable doubt that petitioners do not qualify for resentencing,” the Bill would require litigation of facts not previously decided. (Sen. Com. on Pub. Safety, History and Comments on Sen. Bill No. 1437 (2017-2018 Reg. Sess.) as introduced Feb. 16, 2018, for hearing on Apr. 24, 2018, p. 10; Assem. Com. on Pub. Safety, Sen. Bill No. 1437 (2017-2018 Reg. Sess.) as amended May 25, 2018, for hearing on June 26, 2018, p. 8.) As discussed above, the requirement that the prosecution prove ineligibility beyond a reasonable doubt was retained in the law as enacted. (
Defendant also urges us to look to other statutes that allow the introduction of “new evidence,” including the statutes governing new trial motions (
that is credible, material, presented without substantial delay, and of such decisive force and value that it would have more likely than not changed the outcome at trial.” (
In these statutes, the Legislature has defined or placed limits on the introduction of “new evidence,” demonstrating that it knows how to limit the admissibility of such evidence when it intends to do so. Defendant argues we should apply the same restrictions here, but there is no textual evidence of similar legislative intent in
In sum, the trial court did not err in admitting and considering the parole risk assessment report and parole hearing transcript at the
B. People v. Trujillo
Defendant next asserts the trial court erred in admitting the parole hearing exhibits because even if the evidence was admissible as “new or additional evidence” within the meaning of
As an initial matter, we again conclude defendant has forfeited this claim on appeal, because she failed to object on this basis in the trial court. (
In Trujillo, the defendant was convicted by jury of felony assault by means of force likely to produce great bodily injury. In bifurcated proceedings, the trial court was asked to determine whether a prior conviction for inflicting corporal injury (
Trujillo is distinguishable. In that case, the trial court considered whether a prior conviction qualified as a strike and the probation report at
issue potentially would have been used to increase the defendant‘s punishment. (Trujillo, supra, 40 Cal.4th at p. 175.) Here,
Moreover, in determining whether a prior conviction qualifies as a strike—the issue under consideration in Trujillo—the court is limited to considering the record of conviction. (Trujillo, supra, 40 Cal.4th at p. 180; People v. Guerrero (1988) 44 Cal.3d 343, 355.) As the Guerrero court explained, the rationale for this limitation is to prevent “the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of a speedy trial.” (Guerrero, at p. 355.) Here, however, double jeopardy principles are not at stake because defendant is voluntarily seeking to vacate her prior conviction, not subjecting herself to a new trial or the possibility of increased punishment. (See
Further, in a
C. Use Immunity
Next, we address defendant‘s argument that the trial court erred because she was entitled to a form of use immunity for her statements and testimony in connection with her suitability for parole. Defendant relies on People v. Coleman (1975) 13 Cal.3d 867 (Coleman) and its progeny to argue that statements made in a parole suitability hearing and during a risk assessment should be inadmissible as substantive evidence of guilt.
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 privilege against self-incrimination at his subsequent trial.” (Id. at p. 892.)
Defendant argues the rule established in Coleman has been extended to other contexts to preclude the prosecution‘s use of a defendant‘s statements as substantive evidence of guilt when one constitutional right is pitted against another. (See, e.g., People v. Ledesma (2006) 39 Cal.4th 641, 691-694 [privileged disclosures in habeas corpus proceeding based on ineffective assistance of counsel did not waive attorney-client privilege for purpose of retrial]; People v. Knight (2015) 239 Cal.App.4th 1, 5-8 [statements made in support of motion to substitute appointed counsel are subject to use immunity]; Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 498-503 [statements made during a court-compelled mental examination cannot be used in a subsequent trial]; Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 806-811 [statements made by a minor to a probation officer and during a fitness hearing inadmissible as substantive evidence against minor at trial]; Simmons v. United States (1968) 390 U.S. 377, 393-394 [defendant‘s testimony in support of motion to suppress inadmissible at subsequent criminal trial].) Defendant urges us to adopt the same approach with respect to
We find defendant‘s reliance on these authorities 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, 1222-1223, italics added.) AMoreover, the
In sum, defendant has not demonstrated that the same principles and rationale underlying the judicially created exclusionary rule formulated in Coleman and applicable in criminal trials apply in a
D. Harmless Error
In any event, assuming the trial court erred in admitting the parole assessment report and transcript of the parole hearing, reversal is not required unless it is reasonably probable defendant would have obtained a more favorable outcome had the evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Epps (2001) 25 Cal.4th 19, 29 [“the Watson test for harmless error applies” to the denial of a right that “is purely a creature of state statutory law“].)
Defendant argues a different result was reasonably probable here because at the time of her plea she did not admit she killed White. Moreover, she
We are not persuaded. First, apart from her admissions in the parole risk assessment report and parole hearing transcript, the prosecution relied on the preliminary hearing transcript, the trial court‘s findings at the preliminary hearing, the amended complaint, and defendant‘s plea, which had as its factual basis the preliminary hearing transcript and discovery. Taken together, the documents provide strong circumstantial evidence that defendant acted alone.
At the preliminary hearing, multiple witnesses testified about the circumstances surrounding White‘s disappearance and defendant‘s suspicious behavior. At the time of his death, White lived with a housemate, Jaime R.5 Jaime testified that she saw White at the house on the evening of February 11, 2004, and he appeared in normal health. Before Jaime left the house the following morning, she saw the victim asleep and alive in his bedroom. She locked the front door and left. She never saw or talked to White after that.
When Jaime returned to the house at 8:00 p.m. on February 12, she saw a tan station wagon in the driveway and White‘s dog tied to the front porch railing, which was “odd.” Jaime also noticed neither of the two locks on the front door were locked, which was very unusual. Inside the house, all the lights were off, the floors had been swept, furniture was moved, the dining table was gone, and defendant was in the house with two children and an adult male. Defendant told Jaime that White left with a lady friend and said he would call Jaime later on that night.
Jaime R. testified defendant moved some of White‘s belongings out of the house. Defendant moved into White‘s bedroom, and her children stayed on
Defendant also told Jaime not to go in the basement because defendant had a “crazed Rottweiler” down there that they were going to have to put to sleep. When Jaime checked the interior basement door that night, it was locked. Jaime testified she had never seen a key to that door, nor had she ever seen it locked before February 12. She checked it two or three times after that, always finding it locked. Defendant kept telling Jaime she would take care of the dog downstairs but “kept on giving excuses.” Defendant never asked Jaime for a key to the basement or told her she needed one. Jaime never heard any barking or scratching coming from the basement.
About four or five days later, Jaime tried to look inside the basement from the window in the exterior basement door. A moment earlier, Jaime saw defendant standing at the bay window in the front of the house. As Jaime was looking into the basement, she “felt a presence” and when she turned, saw defendant standing at the side of the house, facing Jaime, about 10 feet away.
The interior basement door remained locked for five or six days, after which defendant told Jaime she could enter the basement to do her laundry. When Jaime went in the basement, the dryer was running, and the exterior door was closed. The key to the exterior door, which normally hung on a nail or hook inside next to the door and had “always been there,” was missing. When Jaime asked defendant about the key, defendant said she had no knowledge of a key to that door.
On February 19, Officer Todd Martin went to White‘s house to take a missing person‘s report from defendant. Defendant told Martin that she and White were roommates and she had last seen him on February 12, when he left with his girlfriend and his dog after just having finished writing a book he had been working on for 50 years.
When Officer Kevin Wright came to the White residence on February 25 to follow up on the missing person‘s investigation, defendant led him through the house. He was not able, however, to access the basement. Officer Wright asked if he could look inside the basement, but defendant told him it was locked and she did not have the key. When he asked her if they could enter the basement from inside the house, she said there was no way to enter the basement from inside and that Jaime R. had the key to the locked basement door. During this visit, Officer Wright also asked defendant about a brown leather couch belonging to White that another witness said was “ratty” and covered in dog hair but had “a lot of sentimental value” to White. Defendant
On March 4, Officer Wright spoke with defendant by phone. He asked her for a copy of the lease she told him she had signed with White. When she brought him the lease, she told him she found the key to the basement in the house, but she also told him that Jaime R. had given her the key. When Wright spoke with defendant again on March 9, she said she had lied to him about White‘s brown leather couch and admitted she “got rid” of it. She also told Wright she had forged the lease she had given him. She also told him that it is possible to access the basement through the interior door, contradicting what she had told him during his visit on February 25.6
At some point, defendant told Officer Wright that she brought a Chow and a Rottweiler with her to White‘s house, but that the Rottweiler had died. She told him she was afraid the Rottweiler was going to bite her child, so she kept the dog in the basement. She also told him she put the dog in a dumpster in Alameda after it died.
On April 14, 2004, police executed a search warrant on White‘s house and discovered his body entombed in his basement. The body was found in a cardboard box that had been wrapped in plastic and placed under a utility table. Sheets of particle board were placed around the table, held in place with two-by-four inch boards and screws.
That night, Sergeants Michael Foster and Brock interviewed defendant7 at the Oakland Police Department. Sergeant Foster also spoke with defendant on a couple of occasions after April 14th, and defendant offered three different versions of how White disappeared.
Initially, defendant told officers that White had left with his girlfriend, “Luna.” She told Wright she had found some of White‘s credit cards and had been paying his bills. Defendant later changed the story and said when she arrived at White‘s house, she had a key to the house and used it to let herself in. A “woman named Michaela, a woman named Jaime,” and a neighbor, Rob, were there. Michaela told defendant that White had hurt himself and was recuperating.
Just before 4:00 a.m. on April 15, Sergeant Foster interviewed defendant again. In the meantime, he had spoken with Michaela S. and Jaime R. During
After Foster further interviewed Michaela and Jaime, both of whom denied participating in an orgy, Foster again interviewed defendant around 8:10 a.m. on April 15.8 Defendant said that after she arrived at his house on February 12, she got into an argument with White over deposit money she had given him to rent part of his house. He would not return the money and called her names. He went upstairs to his room, and she followed, demanding her money back. She pulled out a dresser drawer and threw it in the bedroom. White reached for a handgun he had in the room. They got into a struggle near the top of the stairwell. Jaime R. appeared and tried to help. Then “she”9 and White fell down the stairs to the basement.
Although defendant argues on appeal that others were “in White‘s house at or about the time of the homicide,” the only evidence she cites is testimony from Jaime R. that when she came home at about 8:00 p.m. on February 12, two children, an adult male, and defendant were in the house.10 Defendant also argues there was no evidence she would have been able to hide the body by herself, but defendant admitted to Sergeant Foster that she screwed the particle board into the table behind which White‘s body was found, and there is no evidence in the record that anyone helped her move or hide the body. Moreover, as the trial court recognized in denying the petition, there was no indication in the evidence before the court that anyone else was involved in the murder,11 nor did the prosecution suggest defendant would be tried on a theory she acted as an aider or abettor.
Taking all of the circumstantial evidence presented at the preliminary hearing, including the extensive evidence regarding defendant‘s efforts to prevent police and the victim‘s roommate from entering the basement where White‘s body was found, her inconsistent and changing stories about his disappearance, her knowledge of the body location and admission she
Second, the natural and probable consequences doctrine presupposes that defendant aided and abetted another principal in the commission of a target crime. (See People v. Prettyman (1996) 14 Cal.4th 248, 261-262, superseded in part by Sen. Bill 1437.) Defendant does not identify a target offense on which a natural and probable consequences theory could have been based. Relief is available under
In sum, because the record does not support a conclusion that the case involved a theory of felony murder or the natural and probable consequences doctrine, any error in admitting evidence that defendant was the actual killer is harmless.
III. DISPOSITION
The order denying defendant‘s petition for resentencing is affirmed.
MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A161450
People v. Myles
Trial Court: Superior Court of Alameda County
Trial Judge: Morris Jacobson, Judge
Counsel:
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Rene A. Chacon and Juliet B. Haley, Deputy Attorneys General for Plaintiff and Respondent.