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No Resentencing of Robber Who Held Gun After Shooting
By a MetNews Staff Writer
The Court of Appeal for this district held Friday, in a 2-1 decision, that a judge properly declared ineligible for resentencing a man who, with his brother, planned to rob someone to get money for drugs, participated in picking the victim, and, after the brother fired five times at that victim who was in his car, took the gun and held it in case the driver was still alive while his sibling picked the pockets, and then shared in the proceeds.
“As a matter of law,” Justice John Shepard Wiley Jr. of Div. Eight wrote for the majority, “these facts establish” that Roderick Wayne Mitchell, who in 1988 pled guilty to first degree murder, “was a major participant in the robbery who showed reckless indifference to human life,” under a vestige of the felony-murder rule which has survived legislative abrogation of the rule in most instances.
“Mitchell’s role was major,” Wiley said. “His indifference was evident.”
He expressed agreement with Los Angeles Superior Court Judge Tammy Chung Ryu who said, in denying Mitchell’s resentencing motion under Penal Code §1170.95 (now §1172.6) that “there’s no other way of interpreting that.”
Under the statute, a person who was convicted of murder based on imputed malice may petition to have the “conviction vacated and to be resentenced on any remaining counts” under specified circumstances, but not where that person could be convicted today under the felony murder rule to the extent it is extant.
Did Not Withdraw
Wiley set forth:
“Mitchell planned a violent crime with a violent man, and when that man started shooting, Mitchell stuck with the plan and continued with the violent crime. Mitchell did not minimize risk or show concern for his victim. Rather he held the gun, shared the take, and left the body.”
Addressing another ground for the appeal, he said:
“We also hold, following a line of unbroken authority, that the trial court could rely on sworn statements Mitchell made to the parole board when Mitchell petitioned to be resentenced. The point of this petitioning process is to find truth and to do justice. In this quest, the facts must matter.”
‘Garden Variety’ Felony
Wiley was joined by San Diego Superior Court Judge Albert T. Harutunian III, sitting by assignment. Presiding Justice Maria E. Stratton dissented, terming the felony which gave rise to the felony murder “a garden variety armed robbery” which, she maintained does not “support a finding of reckless indifference to human life.”
She pointed out that Mitchell was 18 years old, was not armed, there was no testimony that he knew his brother was carrying a gun, did not witness the shooting but merely heard the shots and heard the car which the victim was driving crash, and when he was handed the gun he did not point it. Stratton noted that according to Mitchell’s account, he did not render aid because he assumed the victim was dead.
The presiding justice maintained that use at the resentencing hearing of Mitchell’s statements at his parole hearing contravened the California Supreme Court’s 1975 decision in People v. Coleman. It was held there that testimony at a probation revocation hearing may not be used at a trial on charges stemming from the same conduct that was at issue at the hearing.
“Here appellant had a right to present mitigating albeit incriminating evidence at the parole hearing and he had a right against self-incrimination at an evidentiary hearing under former section 1170.95,” Stratton wrote. “The exercise of those rights should not collide.”
The case is People v. Mitchell, B308780.
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