In an 1172.6 evidentiary hearing, the trial court did not err by admitting defendant’s 2021 statements to a state forensic psychiatrist admitting that he was the shooter. Defendant’s statements were made for a comprehensive risk assessment for the parole board. Because defendant was not the psychiatrist’s patient and defendant was informed their conversation was not confidential, the statements did not fall under the psychotherapist-patient privilege (EC 1014). Additionally, incriminating statements made by a prisoner during parole proceedings do not violate the privilege against self-incrimination.

The doctrine of issue preclusion did not preclude the trial court from relying on a theory that defendant was the actual killer even though the 1996 jury found not true a personal firearm use allegation. Issue preclusion does not apply because defendant’s personal use of the gun is not an “ultimate fact” that has to be proven beyond a reasonable doubt to find him guilty of murder. Although new evidence ordinarily would not defeat the doctrine of issue preclusion if it otherwise applied, it is doubtful this rule would apply in a section 1172.6 proceeding.

The full opinion is available on the court’s website here: https://www4.courts.ca.gov/opinions/documents/D083280.PDF