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A Parole Risk Assessment Admissible in Resentencing?
In February 2004, Defendant Elnora Myles reported to the Alameda Sheriffs that Cedric White was missing. At the time, Ms. Myles was living in White’s home.
Police were suspicious of Ms. Myles, so they got a search warrant to search the home. Police found White’s body wrapped in cellophane and entombed under a basement work bench, hidden behind particleboard that was recently installed. An autopsy revealed signs of blunt force trauma to his head.
Police also found evidence that Ms. Myles had used White’s identification to open a number of credit accounts in his name with herself as an authorized user. Purchases in the accounts totaled over $13,000.
When Ms. Myles was questioned by police about his whereabouts, she first indicated that she had seen him last leaving in a cab with a lady friend and that they were headed to China to celebrate the completion of his “Jazz history” book. In another interview, she claimed that White died in a fall down the stairs at his house.
The Gist of this Article: The prosecution may oppose a Petition for Resentencing under Penal Code § 1172.6 (SB 1437, formerly Penal Code § 1170.95) by introducing a comprehensive risk assessment report introduced at a parole hearing, wherein defendant admitted to being the actual killer because its use did not increase defendant’s punishment so the Sixth Amendment confrontation right was not implicated.
In May 2005, the Alameda County District Attorney’s Office filed an information alleging Ms. Myles with committing murder (Penal Code § 187(a)), that she personally inflicted great bodily injury (Penal Code § 1203.075), that she committed identity theft (Penal Code § 530.5(a)), forgery (Penal Code § 470(d)) and four counts of making false financial statements (Penal Code § 532a(1)).
Alameda County Courthouse Oakland BranchMs. Myles entered a no contest plea to second degree murder in exchange for dismissal of the other charges. Her attorney stipulated to a factual basis for the plea based on the preliminary hearing transcript and discovery. She was sentenced to fifteen years to life in prison.
In January 2019, Ms. Myles files a petition for resentencing under Penal Code § 1170.95 (Senate Bill 1437), seeking to vacate her 2006 second degree murder conviction. The trial court found the petition established a prima facie case, so it appointed counsel and set a briefing schedule.
Court of Appeal First Appellate District San FranciscoThe prosecution opposed resentencing based on an argument that Ms. Myles was the actual killer. The prosecution sought to admit Ms. Myles’ statements from a comprehensive risk assessment report and parole suitability hearing, in which Ms. Myles admitting killing Mr. White and specifically stated she hit him with a metal water bottle, entombed him in his own home, took advantage of things he owned and lied to his family.
Defense counsel objected to the court’s consideration of the statements, 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. The judge then denied the petition for resentencing on two grounds. First the case was not a felony murder case, nor an aider and abettor case in which the death occurred under the natural and probable consequences doctrine. Second, she was the actual killer.
Ms. Myles appealed the ruling to the First Appellate District Court on multiple grounds that seemed confusing at best. This article’s scope will focus on the narrow issue and argument made by Ms. Myles that the trial court erred in admitted her statements from the parole hearing because it was inadmissible under People v. Trujillo (2006) 40 Cal. 4th 165, 179 to prove the elements of the crime.
In Trujillo, defendant was convicted by a jury of felony assault by means of force likely to produce great bodily injury. The judge was asked to determine whether a prior conviction counted as a strike. The prosecution asked to admit a probation officer’s report from the prior case prepared after defendant’s plea in which defendant admitted that he “stuck [the victim] with a knife.” The California Supreme Court held that defendant’s admission to a probation officer did not necessarily reflect the nature of the crime of which he was convicted, and thus could not be used by the prosecution to establish the prior conviction was for a violent felony. Trujillo, supra, at 179.
The First Appellate Court rejected this argument from Ms. Myles, noting that the prosecution in her case was not using her parole suitability transcript to increase her punishment, so it did not implicate the Sixth Amendment and was not any type of due process violation.
We present this summary because in resentencing, the prosecution may attempt to bring in many types of documents that are not only hearsay, but admission of which may be a clear Sixth Amendment violation. However, as in this case, when their use does not increase punishment, courts unfortunately are likely to admit such documents.
The citation for the First Appellate District Court ruling discussed above is People v. Elnora Miles (1st App. Dist., 2021) 69 Cal. App. 5th 688, 284 Cal. Rptr. 3d 650.
For more information about factors to consider in resentencing, please click on the following articles:
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