People v. Humdy CA2/2 ( 2021 )

Filed 12/23/21 P. v. Humdy CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B308820
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA020811)
v.
ORDER MODIFYING
JAMES FLEETWOOD OPINION AND DENYING
HUMDY, REHEARING
Defendant and Appellant. NO CHANGE IN THE
JUDGMENT
THE COURT:
It is ordered that the opinion filed on December 9, 2021, be
modified as follows:
1. On page 12, in the single-sentenced paragraph, replace
“four” with “five,” so that the sentence reads:
Defendant resists this conclusion with what collapses
into five different arguments.
2. On page 16, in the first sentence of the first full
paragraph, replace “Lastly” with “Fourth,” so that the
sentence reads:
Fourth, defendant implies that the trial court’s
finding is suspect because the court did not read the
1995 trial transcript from cover to cover.
3. After the last sentence on page 16, add the following two
paragraphs (including footnote 3):
Lastly, and for the first time in a petition for
rehearing, defendant argues that the newly enacted
Senate Bill No. 775 (2021-2022 Reg. Sess.), effective
January 1, 2022 (Senate Bill 775), applies to his
pending section 1170.95 proceeding and requires us
to remand for a new evidentiary hearing. Even if we
assume for argument’s sake that Senate Bill 775
applies to pending section 1170.95 petitions, Senate
Bill 775 does not entitle defendant to a new hearing.
To be sure, Senate Bill 775 amended section 1170.95,
among other ways, to clarify what evidence a trial
court may consider during an evidentiary hearing
when determining whether a defendant is entitled to
2
relief under section 1170.95. (Stats. 2021, ch. 551, §
2.) As clarified by Senate Bill 775 and as pertinent
here, section 1170.95 permits a trial court to consider
all of the “evidence previously admitted at any prior
hearing or trial that is admissible under current
law”; any “new or additional evidence” the parties
seek to introduce at the section 1170.95 hearing if
that evidence is admissible under the Evidence Code;
and “the procedural history of the case recited in any
prior appellate opinion.” (Ibid.) However, as the
analysis we set forth above indicates, the trial court’s
finding that defendant was the “actual killer” is
supported by evidence that fits comfortably within
the parameters of section 1170.95 as amended by
Senate Bill 775. As noted above, the trial court’s
“actual killer” finding is supported chiefly by
DeJohn’s trial testimony; that is clearly admissible
under Senate Bill 775. The “actual killer” finding is
corroborated by DeJohn’s 1994 police interview.
Although the content of that interview was not
admitted during defendant’s trial, it was properly
admitted under the Evidence Code as a prior
consistent statement because DeJohn’s 2020
testimony at the section 1170.95 hearing is
inconsistent with DeJohn’s 1995 trial testimony and
DeJohn’s 1994 police interview “was made before the
alleged inconsistent statement.” (Evid. Code, §§
1236, 791, subd. (a).)1 The remaining evidence we
1 There is also no Confrontation Clause issue because
DeJohn was available for cross-examination at both the 1995
3
cite in support of our conclusion that the trial court’s
“actual killer” finding is supported by substantial
evidence—namely, the testimony of the security
guard, defendant’s own testimony, and the evidence
of the defendant’s threats to kill Mitchell’s aunt—was
all admitted into evidence at the 1995 trial.
Defendant resists this conclusion with two
further arguments. To begin, he argues that the trial
court’s assertion that it did not read the entire trial
transcript means that the court necessarily relied on
the recitation of facts in the appellate opinion, which
is not allowed under section 1170.95 as amended by
Senate Bill 775. This is little more than a
regurgitation of defendant’s fourth argument. It is
also incorrect. Contrary to what defendant’s
argument seems to suggest, Senate Bill 775 did not
modify section 1170.95 to obligate a trial court to
read the entire trial transcript once the court
mentions having looked at the factual recitation in
the prior appellate decision. As noted above, the
court read pertinent portions of the trial proceedings
and asked the parties to present any further portions
they wished the court to consider; the fact that some
of those portions were recited in the appellate
decision does not render the trial court’s finding
suspect. Further, defendant argues that several
other items of ostensibly inadmissible evidence were
presented to the trial court during the section
1170.95 hearing, including (1) the Los Angeles Police
trial and at the 2020 evidentiary hearing.
4
Department’s homicide report, (2) a probation report,
and (3) the prior appellate decision from Mitchell’s
case. We need not plumb whether each of these was
admissible under the Evidence Code because, even
without them, there is substantial evidence to
support the trial court’s finding that defendant was
the actual killer.
* * *
There is no change in the judgment.
Appellant’s petition for rehearing is denied.
——————————————————————————————
LUI, P.J. CHAVEZ, J. HOFFSTADT, J.
5
Filed 12/9/21 P. v. Humdy CA2/2 (unmodified opinion)
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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B308820
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA020811)
v.
JAMES FLEETWOOD
HUMDY,
Defendant and Appellant.
APPEAL from an order of the Los Angeles Superior Court,
John A. Torribio, Judge. Affirmed.
Danalynn Pritz, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
******
After an evidentiary hearing, the trial court denied the
petition for resentencing under Penal Code section 1170.95 filed
by James Fleetwood Humdy (defendant).1 Defendant argues this
was error. It was not. We accordingly affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The underlying crime
In July 1993, defendant went to Palm Springs with his
girlfriend Joyce Mitchell (Mitchell), Mitchell’s four-year-old son
DeJohn, and his friend Lauren Edward (Edwards). Defendant
was a more established member of the Crips street gang, and
Edwards—who was then 16 or 17 years old—was a newer gang
member. Defendant’s moniker was “Joker.”
The three were strapped for cash and were sleeping on the
living room floor of the one-bedroom apartment where Mitchell’s
aunt lived. Because Mitchell’s car had been impounded while
they were in Palm Springs, they had no way back to Los Angeles,
where they all lived.
Ready to have them vacate her small apartment, Mitchell’s
aunt arranged for defendant and the others to hitch a ride back
to Los Angeles with one of the aunt’s “close friends” and
coworkers, a woman named Malea Davidson (Davidson).
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
Davidson and her boyfriend, Peter Chase (Chase), were already
planning to drive to Los Angeles, and offered to let them ride in
the bed of their truck.
In the mid-afternoon of Friday, July 2, 1993, the group
headed back to Los Angeles in Chase’s truck. When Chase
arrived in the South Los Angeles neighborhood where defendant,
Mitchell, and Edwards lived, Chase stopped the truck in the
street. Defendant hopped out of the back, pulled out a gun, and
ordered Chase and Davidson out of the truck’s cab. Defendant
directed them to the sidewalk, where he proceeded to shoot Chase
twice in the head and to shoot Davidson once in the head and in
the back. Chase died instantly; Davidson lived for only another
few hours. Defendant and the others drove off in the truck,
leaving Davidson to die. The group took Chase’s wallet,
Davidson’s jewelry, and the money Davidson had from the
paycheck she had gone to cash with Mitchell’s aunt earlier that
day.
The truck was recovered a few days later, doused in oil in
an attempt to obliterate fingerprints.
A few days later, defendant spoke with Mitchell and
Edwards about needing to kill Mitchell’s aunt, who had spoken
with the police after Davidson’s body was found.
B. Prosecution, sentencing, and appeal
In 1994, the People charged defendant, Mitchell, and
Edwards with the murders and robberies of Chase and Davidson
(§§ 187, 211). The People further alleged two special
circumstances—namely, that (1) defendant committed the
murders in the course of the robberies (§ 190.2, subd. (a)(17)), and
(2) defendant committed multiple murders (§ 190.2, subd. (a)(3)).
3
The People charged defendant and Mitchell together; the People
charged Edwards separately.
Following his arrest, Edwards told police that he had shot
Chase and Davidson because Chase became “aggressive to Joker”
and because Davidson was also “aggressing” Joker “with some
shiny object that [Edwards] took to be a weapon.” Beyond
indicating that he was eight feet from Chase and 14 to 16 feet
from Davidson when he shot them, Edwards was “pretty vague”
about the details of the shootings. The prosecutor introduced
Edwards’s statement at Edwards’s preliminary hearing, but did
so to establish that Edwards was at the scene and had
participated in the robbery, and not to establish that Edwards
was the shooter. As to Edwards’s claim of being the shooter in
his postarrest statement, the prosecutor “stipulated” that the
claim was “inherently suspect.”
Mitchell proceeded to trial separately, and a jury convicted
her of both murders and robberies.
Defendant went to trial in mid-June 1995.
During defendant’s trial, Mitchell’s son DeJohn testified.
By that time, he was six years old. He was first called as a
witness on the second day of trial. In front of the jury, the
prosecutor attempted to get DeJohn to take the oath or to
promise to tell the truth, but DeJohn refused. During this
colloquy, defendant gave DeJohn a “fixed glaring stare,” and
DeJohn admitted to being afraid of defendant. The trial court
instructed the jury to disregard anything DeJohn said while on
the stand. The next day, DeJohn was questioned outside the
presence of the jury. This time, DeJohn told the prosecutor that
he would “tell us what [he] really thought as to what happened”
and would “tell us the truth,” and DeJohn then told the judge
4
that he will “tell the truth.” The trial court concluded that
DeJohn’s assurances constituted a promise to tell the truth, and
qualified him as a witness. Back before the jury for the second
time, DeJohn testified that (1) he had traveled in a truck with his
“mama” (Mitchell), Joker, and “some other guy”; (2) the truck
parked in the street; (3) Joker had a gun; (4) Joker ordered the
white man and white woman out of the truck (Chase and
Davidson were both Caucasian), told them to “get on the side
walk” and to “lay down” or “get on the floor”; and (5) Joker then
shot them. DeJohn identified defendant in the courtroom as
Joker.
Defendant was aware of Edwards’s statement to police
purporting to take the blame for the shootings but elected not to
introduce it after the trial court ruled that the prosecutor would
be permitted to introduce any portions of the statement necessary
to put in context any portions of Edwards’s statement defendant
introduced.
Defendant then took the stand. He testified that Chase
and Davidson had stopped to let them off, and that Edwards
unexpectedly pulled out a gun and shot them. This testimony
was inconsistent with defendant’s postarrest statement, where he
said that Chase and Davidson had dropped him off and drove
away alive and well.
The trial court instructed the jury that defendant could be
found guilty of the murders as (1) the actual killer, (2) a person
who, with the intent to kill, directly aided and abetted the actual
killer, or (3) a person who participated in the felony robberies,
and the killings occurred in the course of those robberies (felony-
murder theory).
5
The jury found defendant guilty on all charges and found
true both special circumstance allegations.
The trial court sentenced defendant to two consecutive
sentences of life without the possibility of parole, and imposed
but stayed (under section 654) a five-year prison sentence for
each robbery.
Defendant appealed his convictions. As pertinent here,
defendant challenged the sufficiency of DeJohn’s oath. In an
unpublished decision, we affirmed defendant’s convictions, and
specifically ruled that “DeJohn’s oath conformed to the statutory
requirements.” (People v. Humdy (Dec. 19, 1996, B097322).)
II. Procedural Background
On November 15, 2018, defendant filed a petition for a writ
of habeas corpus that, among other things, invoked section
1170.95. The trial court denied the petition on every ground
except section 1170.95, construed that ground as a section
1170.95 petition, appointed counsel for defendant, and
entertained further briefing. After multiple rounds of briefing,
the trial court in June 2020 concluded that defendant had
established a prima facie showing of entitlement to relief under
section 1170.95 and issued an order to show cause. At that time,
the court stated that, at the upcoming evidentiary hearing, it
would “use the relevant standard of beyond a reasonable doubt.”
The court held an evidentiary hearing over two days in
August and September 2020. In addition to the record of
conviction from the 1995 trial, defendant submitted two
additional items of evidence—namely, (1) a declaration from now-
adult DeJohn, who declared that he heard gunshots but did not
see who actually fired the gun, and (2) in-court testimony from
the now-adult DeJohn, who testified that he “did not see who
6
pulled the trigger” and did not remember seeing defendant
holding a gun that night. The People introduced the transcript
from a 1994 police interview of DeJohn, where he stated that he
rode in the truck with his mother (Mitchell), Joker, and
“somebody else,” the truck stopped in the street, Joker ordered
the “man” and the “girl” out of the truck and told them to kneel
on the ground, and then Joker shot the man and then the “girl.”
At the September 2020 hearing, the parties offered
extensive argument on the question whether defendant was
entitled to relief under section 1170.95. The prosecutor argued
that the jury’s prior special circumstance finding that the killings
occurred during the robberies rendered defendant ineligible for
relief as a matter of law. Defendant argued that the prior special
circumstance was not binding. Instead, defendant argued that
his entitlement to relief turned on whether there is “proof beyond
a reasonable doubt that [defendant is] the actual shooter.” The
court ruled that it would, “as the trier of fact,” make an
“independent” and “de novo” determination whether the record of
conviction (as “augment[ed]” at the evidentiary hearing) proved
defendant was the actual shooter “beyond a reasonable doubt.”
The court then responded to the arguments of both parties: It
found defendant was “ineligible as a matter of law,” and “also
[found] that he was, in fact, the actual shooter.”
After the trial court denied his motion for reconsideration,
defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in denying his
petition for relief under section 1170.95. Specifically, he argues
that the court erred (1) in finding that he was the actual killer
because (a) the court used the wrong legal standard, and (b) the
7
finding is in any event unsupported by substantial evidence, and
(2) in declaring him ineligible for relief as a matter of law due to
the jury’s special circumstance finding. Because our resolution of
defendant’s first argument is dispositive, we have no occasion to
reach his second. As to his first argument, we independently
review whether the trial court used the proper legal standard and
review the court’s factual finding for substantial evidence.
(People v. Rodriguez (2020) 58 Cal.App.5th 227, 237-238.)
Section 1170.95 was enacted as part of Senate Bill No.
1437. With one exception, section 1170.95 retroactively
overturns any murder conviction premised on any vicarious
liability theory—that is, on the theory that the defendant is
guilty of murder for a killing committed by someone else—unless
the People prove that the nonkiller defendant personally acted
with the intent to kill or was a major participant who acted with
reckless disregard to human life. (§§ 1170.95, 188, 189, subds.
(e), (f); People v. Gentile (2020) 10 Cal.5th 830, 852-853.) Section
1170.95 uses a two-step procedure. In the first step, the nonkiller
defendant seeking to vacate his murder conviction must make a
“prima facie showing” of entitlement to relief by alleging that he
was convicted of murder on a theory of vicarious liability and
alleging that he did not act with the requisite personal intent
(that is, that he did not act with the intent to kill and was not a
major participant who acted with reckless disregard to human
life). (§ 1170.95, subds. (c), (a).) If the defendant so alleges, and
if the record of conviction does not definitively establish the
falsity of his allegations (People v. Lewis (2021) 11 Cal.5th 952,
971 [relief may be denied without an evidentiary hearing “‘if the
record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition”’”]), the trial court
8
must issue an order to show cause and convene an evidentiary
hearing “to determine whether the petitioner is entitled to relief”
under section 1170.95. (§ 1170.95, subd. (d)(3).) At that hearing,
the prosecutor bears the “burden” of “prov[ing], beyond a
reasonable doubt, that the petitioner is ineligible” for relief.
(Ibid.) As we held in People v. Fortman (2021) 64 Cal.App.5th
217, 224-225, review granted July 21, 2021 S269228, this means
that the defendant is entitled to relief unless “the trial court itself
finds, beyond a reasonable doubt, that [the] defendant is guilty of
murder on a still-valid theory of liability” because (1) he is the
actual killer, (2) he acted with the intent to kill, or (3) he was a
major participant and acted with reckless indifference to human
life.
I. Did the Trial Court Apply the Proper Legal
Standard?
Defendant asserts that the record is “ambiguous” and that
the trial court did not “make [it] clear” that it was making an
independent finding as to whether he was the actual killer. This
assertion has the law backwards. The record need not
affirmatively demonstrate the trial court’s application of the
correct legal standard; instead, we presume the court applied the
correct standard unless there is evidence to the contrary. (Peake
v. Underwood (2014) 227 Cal.App.4th 428, 447; People v. Mack
(1986) 178 Cal.App.3d 1026, 1032; Evid. Code, § 664.) We decline
defendant’s implicit invitation to invert the applicable standard
of review in his favor.
Here, there is no evidence in the record indicating that the
trial court applied the wrong standard; to the contrary, the record
is abundantly clear that the court applied the correct standard.
Throughout the course of the proceedings, the court repeatedly
9
acknowledged that it was reviewing the record “independent[ly]”
and “de novo,” that it was acting “as the trier of fact,” and that it
was looking for proof “beyond a reasonable doubt.” What is more,
the court’s ultimate ruling was a “find[ing] that [defendant] was,
in fact, the actual shooter.” These words leave no doubt that the
trial court was independently making a factual finding beyond a
reasonable doubt, and nothing else the trial court said supports a
contrary conclusion.
Defendant makes what boil down to two arguments in
response. First, he argues that the prosecutor urged the court to
look to the jury’s findings, that the trial court expressed some
uncertainty regarding how much deference to give those findings,
and that the trial court was willing to consider the prior appellate
opinion in this case. This is an indication, defendant reasons,
that the trial court was not making an independent finding of
fact. We reject this argument because it conflates the two
distinct questions before the trial court—namely, (1) did the
jury’s prior special circumstance finding obviate defendant’s
entitlement to relief as a matter of law, and (2) did the record of
conviction plus the additional evidence presented at the section
1170.95 hearing warrant an independent finding beyond a
reasonable doubt that defendant was the actual killer? The court
ultimately determined that the answer to each question was “yes”
when it ruled that “[t]he court finds that [defendant] is ineligible
as a matter of law . . . and also finds that . . . he was, in fact, the
actual shooter.” The excerpts from the record defendant cites all
pertain to the first question; because they deal with a separate
question, they do not undermine the validity of the court’s finding
as to the second question. Second, defendant argues that the
trial court did not lay out any of its reasoning or subsidiary
10
factual findings supporting its ultimate factual finding that
defendant was the “actual shooter.” Defendant cites no authority
to support the assertion that the trier of fact is obligated to
provide such explication. A jury is certainly not required to share
its thought processes and intermediary factual findings; we see
no reason why the rule should be different for the trial court
making a factual finding when ruling on a section 1170.95
petition.
Accordingly, we conclude that the trial court applied the
correct legal standard.
II. Does Substantial Evidence Support the Trial Court’s
Finding That Defendant Was the Actual Killer?
Defendant argues that the record of conviction along with
the additional evidence presented by him and by the prosecutor
in the section 1170.95 proceedings does not support the trial
court’s finding that he was the actual killer of Chase and
Davidson. As noted above, we review this finding for substantial
evidence. This obligates us to “view the evidence in the light
most favorable to the . . . verdict, including ‘resolv[ing] conflicting
inferences’ and credibility findings in favor of th[e findings].”
(People v. Collins (2021) 65 Cal.App.5th 333, 344, citation
omitted.)
Through this prism, substantial evidence supports the trial
court’s finding that defendant was the person who actually killed
Chase and Davidson. During the June 1995 trial, DeJohn
testified that defendant had a gun, that he ordered Chase and
Davidson out of the truck and directed them to “lay down” or “get
on the floor,” and that he then shot them. This trial testimony
was corroborated by what DeJohn said in his pretrial interview—
namely, that defendant ordered the “man” and the “girl” out of
11
the truck at gunpoint, told them to kneel on the ground, shot the
man first, and then shot the “girl.” DeJohn’s account is
circumstantially corroborated by (1) the testimony of a nearby
security guard and defendant’s own testimony that the woman
screamed, which would indicate Davidson had time to scream
after she saw Chase being shot first, and (2) defendant’s threats
to kill Mitchell’s aunt a few days later for talking to the police.
Defendant resists this conclusion with what collapses into
four different arguments.
First, defendant suggests that DeJohn’s testimony from the
1995 trial should be disregarded or, at a minimum, accorded little
weight due to the uncertainty as to whether DeJohn ever
promised to tell the truth. We reject this suggestion. Defendant
fully and thoroughly litigated the validity of DeJohn’s oath on
direct appeal, and we upheld its validity. Our rejection of
defendant’s argument is now law of the case. (Franco v.
Arakelian Enterprises, Inc. (2015) 234 Cal.App.4th 947, 957 [“The
doctrine of law of the case gives finality to appellate decisions,
precluding courts from revisiting issues that ha[ve] been
determined in earlier appellate proceedings between the same
parties”].)
Second, defendant argues that DeJohn’s testimony from the
1995 trial, even if it may be considered, is not entitled to any
weight because it is “dramatically” and “wildly” “inconsistent” (1)
with itself, (2) with DeJohn’s 2020 testimony that he “did not see”
who killed Chase and Davidson, (3) with other evidence,
including (a) Edwards’s confession to being the shooter, (b) the
testimony of DeJohn’s great grandmother who told the cops that
DeJohn had told her that “the other boy” did the shootings, (c)
the fact that Mitchell (and not defendant) owned a .22-caliber
12
handgun, and (d) defendant’s trial testimony denying being the
shooter. Borrowing language from People v. Bassett (1968) 69
Cal.2d 122, 139 (Bassett), defendant says that all of this evidence
contradicting DeJohn’s testimony at the 1995 trial does not
“inspire[] confidence” in the trial court’s recent finding that
defendant was the actual killer.
We reject this second argument for several reasons. To
begin, this argument effectively asks us to conclude that DeJohn
was not credible in 1995. That is beyond our purview. Bassett’s
“inspiring confidence” language was doing no more than
explaining the substantial evidence standard of review (ibid.),
and it is well settled that, under that standard of review, we
cannot question a jury’s implicit finding that a witness is credible
“‘unless the [witness’s] testimony is physically impossible or
inherently improbable.’” (People v. Brown (2014) 59 Cal.4th 86,
106.) Here, nothing DeJohn testified to was physically
impossible or inherently improbable. All defendant points to is
inconstancies within DeJohn’s testimony or inconsistencies
between DeJohn’s testimony and some of the other evidence at
trial. Neither is enough to empower an appellate court to reject a
jury’s finding that a witness was credible. (Clemmer v. Hartford
Ins. Co. (1978) 22 Cal.3d 865, 878 [“[T]he fact that inconsistencies
may occur in the testimony of a given witness does not . . . mean
that such testimony is necessarily insufficient to support the
verdict” because “[i]t is for the trier of fact to consider internal
inconsistencies in testimony, to resolve them if this is possible,
and to determine what weight should be given to such
testimony”]; People v. Wetle (2019) 43 Cal.App.5th 375, 388 [“The
testimony of a single witness is sufficient to uphold a judgment
even if it is contradicted by other evidence”].) Even if we were to
13
ignore the prohibition against second guessing DeJohn’s 1995
trial testimony, we tend to agree with the trial court that the
inconsistencies defendant highlights do not call into question the
veracity of that testimony. Although DeJohn’s trial testimony
was inconsistent regarding where he was coming from, where he
sat, and whether he was asleep, DeJohn was consistent in his
testimony that defendant held the gun, that defendant ordered
the victims out of the truck and onto the sidewalk, and that he
shot them. The fact that DeJohn was so young and that many
parts of his testimony were not corroborated by others does not
render the entirety of his testimony suspect. (People v. Harlan
(1990) 222 Cal.App.3d 439, 453 [“testimony may not be rejected
simply because of [the witness’s] youth”]; People v. Scott (1978) 21
Cal.3d 284, 296 [“The uncorroborated testimony of a single
witness is sufficient to sustain a conviction”]; accord, People v.
Giron-Chamul (2016) 245 Cal.App.4th 932, 960 [‘“[t]he fact that a
very young witness makes inconsistent . . . statements does not
indicate an inability to perceive, recollect, and communicate or an
inability to understand the duty to tell the truth,’ even if some
parts of the child’s testimony may be ‘inherently incredible’”].)
The trial court also had a basis for viewing DeJohn’s 2020
recantation with a jaundiced eye given that DeJohn’s 1995 trial
testimony came closer in time to the killings (and was strikingly
consistent with DeJohn’s even more contemporaneous statements
to police), and given that an adult whose mother has been in
prison for the past 25 years is more likely to be guileful than a six
year old. Further, the trial court had a sufficient basis not to
treat Edwards’s confession as dispositive given that (1) the
prosecutor at Edwards’s preliminary hearing put no credence in
it, and (2) Edwards’s account that he was 8 to 16 feet away from
14
Chase and Davidson when he allegedly shot them was, contrary
to what defendant argues, not consistent with the forensic
evidence that at least one of the shots at Chase, which may or
may not have been one of the same shots that penetrated his
skull, was from made from less than two feet away.2 What we
are left with is defendant’s request to weigh all of this evidence
differently than how the trial court did and to come to a different
conclusion. We cannot and will not do so. (People v. Covarrubias
(2016) 1 Cal.5th 838, 890.)
Third, defendant argues that the prosecutor’s decision not
to charge defendant with any enhancements based on defendant’s
personal use of firearms undermines the trial court’s finding that
defendant was not the actual killer. We reject this argument.
Charging decisions are a function of numerous considerations in
addition to the strength of the evidence (Sundance v. Municipal
Court (1986) 42 Cal.3d 1101, 1132 [“[p]rosecutors have broad
decisionmaking power in charging crimes” to which the judiciary
shows “an extraordinary deference”]; People v. Birks (1998) 19
Cal.4th 108, 134 [“prosecutorial discretion to choose, for each
particular case, the actual charges from among those potentially
2 Defendant argued to the trial court that the prosecutor was
judicially estopped to deny the truth of Edwards’s confession to
being the shooter and had also violated defendant’s due process
rights by insisting, in 2020, that defendant was the actual killer
after using the confession at Edwards’s preliminary hearing. The
trial court “completely and totally reject[ed]” those arguments as
being unsupported by the record, which showed that the
prosecutors of defendant, Mitchell, and Edwards had consistently
maintained that defendant was the shooter. Defendant has not
appealed this issue, so we have no basis to dispute the trial
court’s ruling.
15
available arises from ‘“the complex considerations necessary for
the effective and efficient administration of law enforcement”’”];
People v. Andrews (1998) 65 Cal.App.4th 1098, 1102 [prosecutor
“is vested with substantial discretion in selecting which cases to
charge and at what level” and “can exercise broad discretion in
charging decisions”]); where, as here, the trial court’s finding that
defendant was the actual shooter of Chase and Davidson is
supported by substantial evidence, the fact that the prosecutor
did not allege a personal use enhancement does not undermine
that finding.
Lastly, defendant implies that the trial court’s finding is
suspect because the court did not read the 1995 trial transcript
from cover to cover. We reject this argument as disingenuous.
The trial court told the parties what portions of the transcript it
had reviewed and repeatedly invited the parties to bring any
additional portions of the transcript they wished the court to
consider. Defendant never did, and also never asked the trial
court to read the whole transcript. For defendant to now
complain about a process to which he acquiesced below is unfair.
What is more, it is of no consequence because we have read the
transcript from cover to cover and find that the trial court’s
finding is supported by substantial evidence.
16
DISPOSITION
The order denying defendant’s resentencing petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
17