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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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,
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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.
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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.
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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
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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.)
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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)
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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.)
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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.
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