Parole Hearing Transcripts Are Not Part of Record of Conviction in SB 1437 Hearings

Felony Murder Rule Changed by SB 1437

Senate Bill No. 1437 revised the felony murder rule in California. Under the felony murder rule, someone who aided and abetted an underlying felony was strictly liable for murder if a co-participant killed someone during the commission of the felony (People v. Cavitt (2004) 33Cal 4^th, 187, 197.) SB 1437 amended Penal Code section 189, subdivision (e) effective January 1, 2019. Now a participant in an enumerated felony in which a death occurs is liable for murder only if one of the following is proven:

The person is the actual killer.
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.
The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2

Retroactive Relief Under SB 1437

SB 1437 provides retroactive relief for individuals who were convicted of first or second degree if they could not be convicted of felony murder under the current law.

SB 1437 hearings are held in the trial court when a person convicted under the old felony murder law petitions for resentencing. The record of conviction is admissible to determine whether the petitioner has made a prima facie showing of eligibility for relief that will entitle them to an evidentiary hearing. If a prima facie showing is made, the court will issue an order to show cause and hold an evidentiary hearing where the burden is upon the prosecution to show beyond a reasonable doubt that the petitioner is the actual killer or acted as a major participant with reckless indifference to human life.

Admissibility of Statements at Parole Hearings

On September 27, 2019. San Francisco Judge Brendan P. Conroy ruled that parole hearing transcripts are not part of the record of conviction in SB 1437 Hearings. Judge Conroy excluded a parole hearing transcript for petitioner Thomas Keel, which the Assistant District Attorney sought to introduce.

At a hearing to determine whether Mr. Keel had made a prima facie showing entitling his petition to proceed to an evidentiary hearing, the District Attorney sought to introduce a statement by Mr. Keel made at his February 27, 2018 parole hearing in which he took responsibility for the death of the victim.

Judge Conroy ruled that exclusion of statements at parole hearings is required under People v. Coleman, (1975) 13 Cal. 3d 867, 533 P.2d 1024, which excludes statements made at a probation revocation hearing at a subsequent trial. The Supreme Court stated in Coleman that the public interest in “informed, intelligent and just revocation decisions” would be furthered if the probationer was not discouraged from speaking openly at the hearings. Allowing the prosecution to take advantage of the probationer’s testimony would unfairly lighten its burden of proving guilt beyond a reasonable doubt. Moreover, forcing an individual to choose among the “unpalatable alternatives” of self accusation, perjury, or silence at the probation hearing in order to protect the constitutional right against self-incrimination“runs counter to our historic aversion to cruelty reflected in the privilege against self-incrimination.” (Id. At pp. 874-878.) At parole hearings, an inmate has to take responsibility and show insight, Judge Conroy stated. “I won’t allow those statements for the case in chief but they can be used for impeachment.”

Prima Facie Case Established by Petitioner

The San Francisco Public Defender represented Mr. Keel and was successful in establishing that Mr. Keel had made a prima facie case. The Public Defender argued that parole board hearings are not evidence and therefore are not part of the record of conviction.

Keel’s lawyer argued that the burden of proof is low for a prima facie showing and the court should not consider police reports and parole hearings. The court should rely on the petition itself. “Mr. Keel checked the necessary boxes, he provided information that he was not the actual killer. His co-defendant Wingfield admitted to the actual killing,” his lawyer stated.

The District Attorney asked the Court to take judicial notice of parole transcripts, and for further briefing on the use of parole hearing transcripts.

Judge Conroy said he would allow us of the taped statements of Mr. Keel because they were part of the Plea Hearing, the Abstract of Judgment and maybe the Medical Examiner Report if a foundation is laid. He would not allow us of the pre-sentence report and parole transcripts

Judge Conroy found that a prima facie case was shown and the prosecution must provide evidence beyond a reasonable doubt that Mr. Keel was the actual killer in the case.

Judge Conroy set November 1, 2019 for briefing and argument on issue of admissibility of parole hearing transcripts; and to set a date for the evidentiary hearing.