People v. Brown CA2/5

Opinion

Filed 8/28/26 P. v. Brown CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B345761

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. A392650) v. RODNEY E. BROWN, Defendant and Appellant.

APPEAL from an order of the Superior Court of the County of Los Angeles, Craig Elliott Veals, Judge. Affirmed. Corey J. Robins, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri, and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent. I. INTRODUCTION Defendant Rodney Brown appeals from the trial court’s denial of his Penal Code section 1172.6 petition.1 He contends the trial court erred by admitting his parole hearing testimony at his evidentiary hearing. We affirm.

II. BACKGROUND

“A. Conviction “On October 6, 1983, the Los Angeles County District Attorney filed an information charging defendant and two codefendants with two counts of murder (§ 187). On January 3, 1986, defendant pled guilty to count one, namely, the second degree murder of Kenneth Johnson. During the change of plea hearing, the prosecutor proffered that this case involved a May 22, 1983, shooting between two rival gangs. The prosecutor further explained that he was unable to determine, based on the forensic evidence, ‘who actually performed the killing act ... .’

“B. First Section 1172.6 Petition “On February 8, 2019, defendant filed a section 1172.6 petition[2], declaring that: an information had been filed against 1 All further statutory references are to the Penal Code unless otherwise stated.

2 At the time, defendant filed a section 1170.95 petition. Effective June 30, 2022, the Legislature renumbered section 1170.95 to 1172.6 with no change in text. (Stats. 2022, ch. 58, 2 him, which allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine; he pled guilty to first or second degree murder; and he could not now be convicted of first or second degree murder because of changes to sections 188 and 189. Defendant did not request the appointment of counsel. “On April 19, 2019, the trial court issued a minute order denying the petition ... .

“C. Denial of Second Petition “On November 19, 2021, following the issuance of our Supreme Court’s opinion in People v. Lewis (2021) 11 Cal.5th 952 (Lewis), defendant filed a second section 1172.6 petition. Defendant again declared that he had pled guilty to first or second degree murder instead of proceeding to trial because he believed that he could have been convicted under the felony murder rule or the natural and probable consequences doctrine, and that he was not the actual killer. In this petition, defendant requested the appointment of counsel. “The trial court did not appoint counsel to represent defendant. Instead, on December 3, 2021, the court summarily denied the petition. “Defendant timely appealed.” (People v. Brown (June 16, 2023, No. B317284 [nonpub. opn.].)

§ 10.) To avoid confusion, we refer to the statute under its new number throughout this opinion.

3 D. 2025 Resentencing Hearing On appeal, we reversed the trial court’s summary denial of the petition and remanded the case with instructions for the court to appoint counsel for defendant and conduct prima facie proceedings under section 1172.6, subdivision (c). Upon remand, the trial court reviewed briefing from the parties regarding defendant’s entitlement to resentencing and then held an evidentiary hearing. On April 16, 2025, the court found beyond a reasonable doubt that defendant was guilty of murder under current law as an aider and abettor to second degree implied malice murder “whether or not he was the actual killer” and denied the petition. In reaching this conclusion, the court relied on defendant’s statements at various parole hearings, during which he admitted shooting at two rival gang members and killing one of them, although he was uncertain as to which victim he shot and killed.

III. DISCUSSION

On appeal, defendant contends the trial court erred by considering his parole hearing testimony at the section 1172.6 evidentiary hearing. He maintains the evidence should have been excluded because he was entitled to use immunity under the rationale set forth in People v. Coleman (1975) 13 Cal.3d 867 (Coleman). He further argues that the evidence was inadmissible under Evidence Code section 940, which incorporates the state and federal constitutional protections against self-incrimination.

4 A. Forfeiture The Attorney General argues that defendant has forfeited his challenge because he did not adequately object to the introduction of his parole hearing statements at the evidentiary hearing in the trial court. At the April 15, 2025, hearing, defense counsel stated “no objection” when the prosecutor moved to admit the parole hearing transcripts into evidence. Moments later, however, defendant’s counsel stated, “I do have an objection to the parole transcripts, but I understand the court—there’s case law that allows them to be—my objection, I’m going to argue why they should be seen in a different light, and I’ll save that for my argument.” A few minutes later, counsel began to argue the unfairness of admitting a parole hearing transcript because a defendant is encouraged to admit wrongdoing when he comes before the parole board. The court acknowledged that “there are cases on that … that don’t accept that as a dispositive.” Counsel opined that defendant had an incentive to take more responsibility for his actions than was warranted so he could secure an early release. The court disagreed that defendant had embellished his role, explaining he was persuaded by defendant’s sincerity and a level of unnecessary detail in his retelling of events. “An objection is sufficient if it fairly apprises the trial court of the issue it is being called upon to decide.” (People v. Scott (1978) 21 Cal.3d 284, 290.) Here, defendant’s counsel objected to the admission of the parole hearing transcripts but conceded the weight of authority was against his position. A discussion followed concerning whether the trial court should discount defendant’s testimony from the parole hearing as not sufficiently trustworthy. On this record, we conclude that defendant 5 adequately preserved his challenge to the admissibility of the parole hearing transcripts.

B. Standard of Review Defendant’s statements in a parole risk assessment report and testimony at a parole hearing fall within the ambit of “‘new or additional evidence’” within the meaning of section 1172.6, subdivision (d)(3). (People v. Mitchell (2022) 81 Cal.App.5th 575, 586 (Mitchell); People v. Myles (2021) 69 Cal.App.5th 688, 698, 703 (Myles).) Claims about the erroneous admission of evidence are usually reviewed for an abuse of discretion. (People v. Duran (2022) 84 Cal.App.5th 920, 927–928 (Duran).) We review de novo whether the prosecution should be barred from using evidence under a judicially created “use immunity” doctrine. (Id. at p. 928.)

C. Use Immunity The judicially fashioned doctrine of “use immunity” precludes prosecutors from using, at a subsequent proceeding, a defendant’s earlier statements that were made under circumstances where the defendant had little choice but to speak. (Coleman, supra, 13 Cal.3d at p. 889, 892.) In Coleman, the Supreme Court held that 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. (Id. at p. 889.) 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. (Id. at p. 878.)

6 Since Coleman, supra, 13 Cal.3d 867 was decided in 1975, use immunity has been extended to other contexts when one constitutional right is pitted against another to prevent the use of a defendant’s prior statements against him in a criminal trial. (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]; People v. Knight (2015) 239 Cal.App.4th 1, 5–8 [statements made in support of motion to substitute appointed counsel]; Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 498–503 [statements made during a court- compelled mental examination]; 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]; Simmons v. United States (1968) 390 U.S. 377, 393–394 [defendant’s testimony in support of motion to suppress].) Courts have declined, however, to apply the doctrine of use immunity to prevent the use of a statement made in a parole proceeding at a subsequent section 1172.6, subdivision (d)(3) evidentiary hearing. (People v. Grandberry (2025) 116 Cal.App.5th 934, 947–948 (Grandberry); People v. Hart (2025) 113 Cal.App.5th 1099, 1107 (Hart); People v. Rodriguez (2025) 110 Cal.App.5th 458, 466–468 (Rodriguez); People v. Zavala (2024) 105 Cal.App.5th 366, 375– 378 (Zavala); Duran, supra, 84 Cal.App.5th at pp. 930–932; People v. Anderson (2022) 78 Cal.App.5th 81, 89–93 (Anderson); Mitchell, supra, 81 Cal.App.5th at pp. 586–590; Myles, supra, 69 Cal.App.5th at pp. 704–706.) Defendant does not dispute that California courts have uniformly concluded that incriminating statements made by a defendant during parole proceedings may be admitted at an evidentiary hearing under section 1172.6, subdivision (d)(3)

7 without violating the privilege against self-incrimination. He urges us, however, to “elect to chart [our] own course on this issue, to not follow Myles, Anderson, Mitchell, Duran, Zavala and Rodriguez,[3] and to hold that the constitutional privilege against self-incrimination [and use immunity] applies in section 1172.6 evidentiary hearings.” As we explained above, every case to consider the privilege against self-incrimination and the Coleman use immunity doctrine in the context of a section 1172.6 proceeding has refused to apply it. (But see Mitchell, supra, 81 Cal.App.5th at p. 602 (dis. opn. of Stratton, P. J.).) We agree with the result in those cases and reach the same result here. Given that defendant had no constitutional privilege against self-incrimination in this context, the admission of the parole hearing testimony did not violate Evidence Code section 940, which declares that “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.” (Italics added.)

3 Since defendant filed his brief, at least two more appellate courts have published opinions adopting the prevailing view. (See Grandberry, supra, 116 Cal.App.5th at pp. 947–948; Hart, supra, 113 Cal.App.5th at p. 1107.)

8 IV. DISPOSITION The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM (D.), J.

We concur:

BAKER, Acting P. J.

MOOR, J.