People v. Harris ( 2024 )

Filed 10/1/24
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B325948
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA284216)
v.
KWANA HARRIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Richard S. Kemalyan, Judge. Affirmed.
Judith Kahn, 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
* Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of part III of the Discussion.
Attorney General, Noah P. Hill and Eric J. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
In 2009, a jury convicted defendant and appellant Kwana
Harris of first degree murder, which a trial court later reduced to
second degree murder pursuant to People v. Chiu (2014) 59
Cal.4th 155 (Chiu). Harris now appeals from the trial court’s
order denying her petition for resentencing under Penal Code
section 1170.95.1 On appeal, Harris argues the trial court had no
authority to reconsider its initial order granting her petition; the
order denying her petition was not supported by substantial
evidence; the trial court applied the wrong legal standard to
assess a witness’s recantations of trial testimony; and the matter
should be remanded because the trial court failed to take her age
into account. In the published portion of this opinion, we
conclude the trial court had the authority to vacate and
reconsider its initial order granting Harris’s resentencing
petition. We affirm the trial court order.
1 All further undesignated statutory references are to the
Penal Code.
Effective June 30, 2022, section 1170.95 was renumbered to
section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.)
We refer to the law as section 1172.6 for the remainder of this
opinion.
2
FACTUAL AND PROCEDURAL BACKGROUND2
Underlying Shooting
On September 17, 2004, at around 2:30 a.m., Eric “Stoney”
Alexander was shot and killed in Los Angeles. A witness who
lived nearby heard gunshots and, within less than a minute,
walked in the direction of the sound. At the corner of the street,
he saw a black SUV about 30 yards from the corner. He saw the
SUV’s door close as it sped away from the scene.
Testimony About Harris’s Involvement
Around one week later, Kwana Harris, her brother
Christopher, and others visited James Hardgraves in San Diego.3
Hardgraves had been married to Harris’s late sister.
On the day she arrived, Harris told Hardgraves there were
“rumors going around that [Harris] and [Christopher] had killed
[Alexander].” Harris indicated she had spoken with Alexander to
arrange to meet him, she had “chirped”4 Alexander to get to the
location where he was killed, and she was present when
Christopher killed Alexander. After Christopher shot Alexander,
Harris kicked Alexander and took his cell phone.
2 Although the trial court admitted the original trial
transcripts as exhibits during the resentencing proceedings, they
were not transmitted to this court as part of the record on appeal.
We augment the record with the trial transcripts from People v.
Harris (May 9, 2013, B222583) (nonpub. opn.) on our own motion.
3 We refer to some individuals by first name only to avoid
confusion. No disrespect is intended.
4 “Chirp” or “direct connect” refers to a feature on Sprint
Nextel phones that allowed the phone to be used as a walkie-
talkie.
3
Hardgraves admitted at trial that Harris told him she
knew that Alexander would be harmed. He confirmed that at the
preliminary hearing, defense counsel twice asked Hardgraves if
Harris told him she knew Alexander was going to be killed, and
Hardgraves responded affirmatively to both questions.
Hardgraves further testified that Harris had told him “not to
come to court” to testify.
Hardgraves’s twin sister, Jamie, was also at his home when
Harris visited. She testified she had told police it was possible
Harris was driving a black “truck” that weekend. She also
overheard a “chirp” phone call between Harris and an
unidentified female caller about money that “supposedly had
been taken” from someone. Jamie testified that she did not hear
any names mentioned on the call, but confirmed that she had told
the detective and had testified during the preliminary hearing
that Harris and the caller were discussing Alexander. Jamie also
heard Harris confirm, in response to the caller’s inquiry, that
Harris had Alexander’s cell phone.
Mericca Garner, the mother of Christopher’s son, had also
gone to San Diego with Harris and her brother to visit
Hardgraves. She carpooled with them in a black “truck,” which
she later confirmed was an SUV that Harris, Harris’s mother,
and Harris’s sister sometimes drove. At trial, Garner denied she
spoke to Harris about Alexander’s murder. However, she
admitted that in a written statement she signed during a police
interview, she wrote that Harris told her “that she didn’t find any
money and that she drove the truck over there to [Alexander]. . . .
Her main concern to me was that she wanted no part of the
murder. The cell phone would have made it look like a setup
4
because her name was the last name on the phone. Far as the
money situation, she never found any.”
Cell Phone Records
The prosecutor produced the “chirp” call records associated
with Harris’s phone and Alexander’s phone from the day of his
murder. The custodian of records for Sprint Nextel testified that
in the hour before Alexander’s death, his phone sent two or three
alerts and made three brief direct connect calls to Harris’s phone.
The custodian further testified that records associated with
Harris’s phone reflected Harris made 12 direct connect calls to
Alexander’s phone in the hour before his death, several of which
were made minutes before the shooting.
The defense submitted cell tower records from Alexander’s
and Harris’s phones to show that the two phones were not in the
same location after the murder, challenging the prosecution’s
theory that Harris was present during the shooting and had
taken Alexander’s cell phone after the shooting. These records
were maintained separately from “chirp” calls and reflected cell
site information for regular inbound and outbound phone calls.
The prosecution called a Los Angeles Police Department detective
who was trained in the analysis of phone records. He testified
that in the 20 minutes after the shooting, call records showed
Alexander’s phone moved to the same cell site location as Harris’s
phone.
Trial and Postconviction Proceedings
In 2006, the People charged Harris and Christopher with
the murder of Alexander. In October 2009, they were jointly
tried. The jury found Harris guilty of the first degree murder of
Alexander. The court sentenced her to 25 years to life.
5
In 2014, the California Supreme Court decided Chiu, supra,
59 Cal.4th 155. The court held that an aider and abettor may not
be convicted of first degree premeditated murder under the
natural and probable consequences doctrine. (Id. at pp. 158–159.)
However, the court also held that “punishment for second degree
murder is commensurate with a defendant’s culpability for aiding
and abetting a target crime that would naturally, probably, and
foreseeably result in a murder under the natural and probable
consequences doctrine.” (Id. at p. 166.) In February 2019, the
trial court granted Harris’s habeas petition to vacate her
sentence pursuant to Chiu. The People opted not to retry Harris
and agreed to resentencing. The court vacated Harris’s 25 years
to life sentence for first degree murder and resentenced Harris to
15 years to life for second degree murder.
Resentencing Proceedings
In May 2019, Harris filed a petition for resentencing, which
the trial court found made a prima facie showing of eligibility. As
explained in further detail below, after an evidentiary hearing,
the trial court initially ruled Harris was entitled to resentencing
relief, but later vacated its decision. After additional briefing and
hearings, the trial court found the People met their burden to
establish beyond a reasonable doubt Harris’s guilt of second
degree murder as a direct aider and abettor. The court therefore
denied the petition. Harris timely appealed.
DISCUSSION
On appeal, Harris contends the trial court had no authority
to vacate its original order granting her petition, allow further
argument and briefing, and enter a subsequent order denying the
petition. Harris also argues the trial court denied her petition
based on insufficient evidence, applied the wrong legal standard
6
to assess Hardgraves’s recantations of his trial testimony, and
failed to consider her youth when determining her mental state.
For the reasons explained below, we find no error and affirm the
trial court’s order.5
I. Senate Bill No. 1437 and Section 1172.6
Senate Bill No. 1437 (2017–2018 Reg. Sess.) eliminated the
natural and probable consequences doctrine as a basis for finding
a defendant guilty of murder and limited the scope of the felony
murder rule. (People v. Strong (2022) 13 Cal.5th 698, 707–708
(Strong); People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis);
People v. Gentile (2020) 10 Cal.5th 830, 842–843 (Gentile).) The
bill amended section 188 by adding the requirement that, except
as stated in section 189, “in order to be convicted of murder, a
principal in a crime shall act with malice aforethought. Malice
shall not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3).)
However, a principal in a murder, including an aider or
abettor, may still be criminally liable if that individual personally
possesses malice aforethought, whether express or implied.
(People v. Silva (2023) 87 Cal.App.5th 632, 639–640; People v.
Offley (2020) 48 Cal.App.5th 588, 595–596 [Sen. Bill No. 1437 did
not “alter the law regarding the criminal liability of direct aiders
and abettors of murder because such persons necessarily ‘know
and share the murderous intent of the actual perpetrator’ ”].)
Senate Bill No. 1437 created a procedure, now codified at
section 1172.6, in which a person convicted of a qualifying offense
5 Because we address the merits of Harris’s arguments, we
need not resolve whether she forfeited some of the issues on
appeal by failing to raise them at the hearing on her petition, or
whether this failure constituted ineffective assistance of counsel.
7
under the former law may seek resentencing if the person could
no longer be convicted of that offense under amended section 188.
(Lewis, supra, 11 Cal.5th at p. 959; Gentile, supra, 10 Cal.5th at
p. 847; see also Sen. Bill No. 775 (2021–2022 Reg. Sess.) § 2
[further amending statutory procedures in § 1172.6].) A person
commences the procedure by filing a petition containing a
declaration that, among other things, the person could not
presently be convicted of murder under the current law. (Strong,
supra, 13 Cal.5th at p. 708.) If, after briefing and a hearing, the
court determines the petitioner has made a prima facie case for
relief, the court shall issue an order to show cause. (§ 1172.6,
subd. (c).)
Within 60 days, “ ‘the court must hold an evidentiary
hearing at which the prosecution bears the burden of proving,
“beyond a reasonable doubt, that the petitioner is guilty of
murder or attempted murder” under state law as amended by
Senate Bill No. 1437 . . . .’ ” (People v. Njoku (2023) 95
Cal.App.5th 27, 41; § 1172.6, subd. (d)(1), (3).) “The admission of
evidence in the hearing shall be governed by the Evidence Code,
except that the court may consider evidence previously admitted
at any prior hearing or trial that is admissible under current law,
including witness testimony, stipulated evidence, and matters
judicially noticed.” (§ 1172.6, subd. (d)(3).) The parties “may also
offer new or additional evidence to meet their respective
burdens.” (Ibid.)
At this stage, “[t]he question is whether the petitioner
committed [the underlying crime] under a still-valid theory, and
that is a factual question.” (People v. Clements (2022) 75
Cal.App.5th 276, 294.) The trial court is therefore “a fact finder
tasked with holding the People to the beyond a reasonable doubt
8
standard” and “ ‘must impartially compare and consider all the
evidence that was received throughout the entire trial’ and
determine whether that ‘proof . . . leaves you with an abiding
conviction that the charge is true.’ [Citations.]” (Id. at pp. 294–
295.) “A finding that there is substantial evidence to support a
conviction for murder . . . is insufficient to prove, beyond a
reasonable doubt, that the petitioner is ineligible for
resentencing.” (§ 1172.6, subd. (d)(3); Clements, at pp. 294–297.)
II. The Trial Court Had the Authority to Reconsider Its
Initial Order Granting Harris’s Petition
A. Background
1. Initial evidentiary hearing and trial court
ruling
On March 4, 2022, the trial court held an evidentiary
hearing on Harris’s petition. The court and counsel addressed
Harris’s objection to the admission of the preliminary hearing
and trial transcripts, both of which the court conditionally
admitted. They also discussed the effect of the trial court’s
decision to grant Harris’s habeas petition under Chiu on its
assessment of the People’s satisfaction of their burden under
section 1172.6. The court and both parties’ counsel agreed that if
the court granted the petition, the appropriate target offense for
resentencing would be assault with a firearm (§ 245, subd. (a)(2)).
At the end of the hearing, the court took the matter under
submission. It set April 5, 2022, as the date for resentencing, if
needed, and told the parties it intended to provide a written
ruling before that date.
On March 23, 2022, the court issued a written ruling
concluding the evidence fell short of proving beyond a reasonable
doubt that Harris acted with malice and finding her entitled to
9
resentencing. The court found that Hardgraves’s trial testimony
about his conversation with Harris during the family gathering
at his home, his testimony that Harris told him not to come to
court and someone associated with Harris had threatened him
not to testify, and Harris’s and Alexander’s cell phone records,
were “substantial and abundant evidence that Petitioner, Kwana
Harris, had the actual intent to kill Eric ‘Stoney’ Alexander.” The
court continued:
“However, . . . Section [1172.6,
subdivision (d)(3)] requires more than substantial
evidence for the people to carry their burden of proof
at the OSC/Evidentiary hearing under
[section 1172.6]. The prosecution has the burden of
proof to establish beyond a reasonable doubt that
Petitioner is guilty of second degree murder. With
this burden in mind and the evidence being evaluated
in that regard, the court does not find that the
[P]eople have carried their burden of proof to
establish that the Petitioner is guilty of second
degree murder beyond a reasonable doubt. The
difficulty is with the finding of the necessary intent.
“The testimony of James Hardgraves, in
addition to noting that Petitioner told him that she
knew ‘Stoney’ was going to be killed before she went
to the meeting location, also indicates that she told
Hardgraves that she knew Stoney was going to be
‘harmed’ when she got there. [Record citation
omitted.] Although ‘killing’ is ‘harm’, ‘harm’ is not
necessarily ‘killing.’
“The testimony of James Hardgraves presents
an inconsistency and/or conflict that would
conceivably ameliorate the required actual intent
10
necessary to find Petitioner a direct aider and abettor
to the murder. However, the testimony does not
negate the finding of aiding and abetting an assault
or assault with a firearm or deadly weapon, even
under a natural and probable consequences theory.”
The court stated its intention to resentence Harris on April 5,
2022.
2. The People’s response and the court’s
decision to vacate its order
The day before the resentencing hearing, the prosecutor
submitted a “Response to the Court’s indicated ruling,” asserting
the ruling mischaracterized Hardgraves’s testimony. As the trial
court had noted in its ruling, during the trial, the prosecutor
asked Hardgraves if Harris had said she knew Alexander would
be harmed, to which Hardgraves responded, “Yes.” The
prosecutor’s response to the ruling argued: “There was no
reference to the witness previously saying ‘harmed’ himself, and
therefore, this inartful question does not impeach the witness’[s]
testimony that the petitioner knew the victim would be killed. . . .
The witness endorsed the use of the word ‘killed.’ The witness
did not disagree with the use of the word ‘harmed,’ but the
witness never said that ‘killed’ was incorrect. Thus the witness
endorsed ‘harmed’ and ‘killed,’ which are consistent, at different
levels of precision, but the witness did not endorse, and was not
asked to endorse, the idea that the petitioner expected the victim
to be ‘harmed but not killed.’ Therefore, the proposition that the
petitioner knew the victim would be harmed but not killed is
without support in the evidence.”
At the April 5, 2022, hearing, the court told the parties it
was not proceeding with sentencing. The court remarked, “Every
time this case is called, I’m brought back to the fact that I’m
11
being asked to rule upon something in which it’s necessary for
the court to assess the credibility of witnesses, which is extremely
difficult to do when you didn’t hear the witnesses, and to make a
determination as to who was to be believed, who is to be believed,
the tenor and nature of what was stated by the witnesses.”
The court then indicated it was vacating the prior written
order to allow it to hear further argument. The court explained it
did not believe that at the evidentiary hearing the parties
“actually presented an argument for the court one way or another
as to whether the People had carried their burden of proof beyond
a reasonable doubt.” The court had no position on the
prosecutor’s response to the prior ruling, but it caused the court
to believe it “may have overlooked a very important facet of this
ruling, which is to hear from counsel as to whether they believe
or do not believe the People have carried their burden of proof
and why.”
Harris’s counsel disagreed, recalling that “both sides talked
a lot about it,” and argued that the People’s filing was an
untimely motion to reconsider. The court stated it “[did not]
know how to take [the People’s] filing” but “wouldn’t consider it a
motion to reconsider.” However, the court then continued: “If you
want to address it as a motion to reconsider, you may.”
The court explained that in a future hearing, it wanted “to
know from the People why they are of the opinion that they have
carried their burden of proof beyond a reasonable doubt,” with
supporting direct and circumstantial evidence, and “why the
defense believes that the evidence presented at the trial does not
reach the level of the People carrying their burden beyond a
reasonable doubt.” The court granted defense counsel’s request
for supplemental briefing. In setting the briefing schedule, the
12
court stated that it did not “need responses and replies. Just give
me your best shot, if I may use the legal term.”6
3. The parties’ supplemental briefing
In May 2022, the parties submitted supplemental briefs. In
Harris’s brief, she asked the court to consider additional
statements Hardgraves made, pursuant to section 1172.6,
subdivision (d)(3). Specifically, Harris introduced two statements
in which Hardgraves purportedly recanted his trial testimony:
1) a 2016 affidavit from Hardgraves and 2) an audio recording
and transcript of an undated conversation between Harris’s
mother or another family member and Hardgraves. In these
posttrial statements, Hardgraves claimed his trial testimony was
false concerning what Harris told him about Alexander’s murder.
He asserted he initially lied to detectives about Harris describing
her and Christopher’s involvement in Alexander’s murder. He
claimed he then repeatedly provided false testimony because the
detectives coerced him, he was at times angry with Harris and
6 During the hearing, the People notified the court that
victims were present in the courtroom who wanted to address the
court pursuant to Marsy’s Law. (Cal. Const., art. I, § 28,
subd. (b)(7)–(8).) On appeal, Harris argues the trial court erred
by “implicitly finding that, under Marsy’s Law, it could vacate the
grant of resentencing so the prosecution could present additional
evidence or argument.”
Harris misconstrues the court’s ruling. The trial court
stated that it was vacating its prior order because it did not
believe it had heard from counsel about whether the People had
met their burden of proof. Because the court was vacating its
initial ruling granting the petition, the court found that it had
not “issued a ruling at this time that would authorize any
resentencing,” and therefore the prosecutor’s request for victim
impact statements under Marsy’s Law was premature.
13
her family, Harris’s attorney provoked him, and he feared being
jailed for perjury. Harris argued that the inconsistencies
between Hardgraves’s trial testimony and these statements
showed Hardgraves was not credible, and therefore his trial
testimony could not sustain the People’s burden to prove beyond
a reasonable doubt that Harris intended to kill Alexander.
In the People’s supplemental brief, the prosecutor
summarized evidence other than Hardgraves’s testimony, such as
Garner’s testimony and the cell phone records, as evidence of
Harris’s intent. The brief also challenged Harris’s
characterization of Hardgraves’s trial testimony and argued that
retractions of sworn testimony after trial should be viewed with
suspicion and given little credence. Harris’s responsive brief
argued the People could not meet their burden without
Hardgraves’s testimony. It did not address the weight the court
should give Hardgraves’s posttrial recantations.
4. Further hearings and the order denying
the petition
The court conducted further proceedings in August and
September 2022. The prosecutor contended Hardgraves’s
retractions lacked credibility and attempted to “recant”
statements he never made at trial. Harris’s counsel argued the
foundation for Hardgraves’s trial testimony about Harris’s intent
was unclear. Harris’s counsel further asserted Hardgraves had
the motive to lie at trial because he blamed Harris and her
brother for his wife’s death. The court again took the matter
under submission.
In October 2022, the trial court issued a second written
ruling in which it denied Harris’s petition. In addition to its
description of Hardgraves’s testimony from the initial order, the
14
trial court assessed the credibility of Hardgraves’s recantations,
taking into account how much time had passed before he signed
the statements purporting to recant his trial testimony, and
Hardgraves’s familial relationship with Harris and her family.
The court found that Hardgraves’s statements implying the
police told him what to say were contradicted by the recording of
his police interview. The court further found that Hardgraves’s
2016 affidavit and audio-recorded statement purported to recant
testimony he had never given and did not disavow important
portions of his actual testimony. The court noted Hardgraves did
not deny that he had a conversation with Harris at his home in
September 2004, and that neither of Hardgraves’s subsequent
statements “totally recant what he says Petitioner told him in
San Diego shortly after the murder,” including his testimony that
Harris said she knew Alexander was going to be killed. The court
also observed that Hardgraves referred to statements in his
posttrial recantations that he did not testify to at trial, such as
Harris and her brother telling him that they “murdered
someone.” The court also cited the general principle that
recantations of sworn testimony are viewed with suspicion and
afforded little credence.
The court concluded the People had proven beyond a
reasonable doubt that Harris was guilty of second degree murder
as “a direct aider and abettor to the murder of Eric ‘Stoney’
Alexander and thus had the shared actual intent to kill
Alexander.” It therefore denied the petition.
B. Analysis
Harris contends the trial court had no authority under
section 1172.6 to vacate its initial order granting her
resentencing petition. She argues the court’s act of reconsidering
15
the initial order violated her due process rights and was barred
by res judicata. We conclude the court had the inherent
authority to reconsider the initial order and did not err or violate
Harris’s rights by doing so.
As described above, section 1172.6, subdivision (d)(3) sets
forth procedures for the evidentiary hearing to determine
whether the petitioner is entitled to relief. The subdivision
concerns the admission of evidence, indicates the prosecutor and
petitioner may offer new or additional evidence to meet their
respective burdens, and states that “[i]f the prosecution fails to
sustain its burden of proof, the prior conviction, and any
allegations and enhancements attached to the conviction, shall be
vacated and the petitioner shall be resentenced on the remaining
charges.” (Ibid.) While the statute thus contemplates a single
evidentiary hearing, it does not address whether the trial court
may reconsider a ruling granting a petition prior to resentencing
or the entry of an amended judgment.
Harris asserts the trial court could not reconsider its ruling
because nothing in the language of section 1172.6 expressly
allowed it. But “the inherent powers of the courts are derived
from the Constitution and are not confined by or dependent on
statute.” (People v. Castello (1998) 65 Cal.App.4th 1242, 1247–
1248 (Castello).) That section 1172.6 does not explicitly authorize
the trial court to reconsider its ruling is not dispositive on the
question of whether it nonetheless has the power to do so.
“ ‘[T]here is little debate that in a criminal cause the court
generally has the [inherent] authority to correct its own
prejudgment errors.’ [Citation.] ‘ “In criminal cases, there are
few limits on a court’s [inherent] power to reconsider interim
rulings . . . .” . . . [¶] This rule is founded on our preference for
16
justice over the rigid adherence to procedure. “A court could not
operate successfully under the requirement of infallibility in its
interim rulings. Miscarriage of justice results where a court is
unable to correct its own perceived legal errors, particularly in
criminal cases where life, liberty, and public protection are at
stake. Such a rule would be ‘ “. . . a serious impediment to a fair
and speedy disposition of causes . . . .” ’ ” ’ [Citation.]” (People v.
Konow (2004) 32 Cal.4th 995, 1020.)
Consistent with this general principle, courts have
concluded a trial court may reconsider a variety of orders in
criminal proceedings, including: an order dismissing two counts
based on an incorrect assumption regarding the statute of
limitations (People v. Nesbitt (2010) 191 Cal.App.4th 227, 243
(Nesbitt)); factual findings made in an order denying a motion to
suppress, as requested by the prosecution (People v. Jackson
(1996) 13 Cal.4th 1164, 1205); an order granting a defense motion
for new trial when considering issues of law (People v. Rose (1996)
46 Cal.App.4th 257, 263); and a pretrial ruling to correct the
court’s legal error in granting a motion to suppress (People v.
Ramirez (1992) 6 Cal.App.4th 1583, 1593).
Courts have also concluded that under some circumstances,
a trial court may not reconsider a prior order. In People v. McGee
(1991) 232 Cal.App.3d 620, the court concluded that after
granting the defendant’s motion to withdraw his plea, the trial
court erred in subsequently granting the People’s motion for
reconsideration and reinstating the guilty plea. (Id. at pp. 625–
626.) The McGee court characterized the order granting the
motion to withdraw as a “final adjudication of the rights or status
of a defendant” (id. at p. 625), and the court had no jurisdiction to
entertain the prosecution’s motion to reconsider (id. at p. 626). In
17
Smith v. Superior Court (1981) 115 Cal.App.3d 285, 287, the
court concluded the trial court erred in vacating its order
dismissing a prosecution, even though the dismissal was based on
erroneous facts. The order in Smith was a “final judgment[ ] on
the merits that effectively terminated the prosecution[ ] against
the defendant[ ] . . . .” (Nesbitt, supra, 191 Cal.App.4th at p. 238.)
In People v. DeLouize (2004) 32 Cal.4th 1223 (DeLouize),
our high court addressed the distinction between interim and
final orders when evaluating whether a trial court may
reconsider a prior ruling. The court noted that “[g]enerally
speaking, courts may correct judicial error in the making of
interim orders or in limine rulings until pronouncement or entry
of a judgment. [Citations.] On the other hand, judicial error in
the making of a final order or judgment ‘may not be corrected
except pursuant to statutory procedures’ or on the limited
grounds available for a collateral attack.” (Id. at p. 1231.) The
question before the court was whether an order granting a new
trial is an interim order since it requires further proceedings
before judgment may be pronounced. The appellate courts were
split on the question. (Id. at p. 1228.)
The DeLouize court reasoned that rather than relying on
appealability as the test to determine whether an order is final or
interim, courts should “analyze the issue in terms of the policies
underlying the general concept of finality.” (DeLouize, supra, 32
Cal.4th at p. 1232.) “Because new trials substantially prolong
criminal proceedings, allowing trial courts some authority to
reconsider and to vacate orders granting new trials may lead to
earlier resolution of the matter and thereby promote the interests
underlying judicial finality rules.” (Ibid.) These include avoiding
“the delays and inefficiencies associated with repeated
18
examination and relitigation of the same facts and issues.”
(Ibid.) In DeLouize, although the time for an appeal had passed,
legal developments that occurred after the trial court initially
granted the motion for new trial undercut the legal basis for the
motion, and the purpose for having a new trial. As a result, the
court concluded in that “unusual situation,” the trial court
properly entertained the prosecution’s motion to reconsider the
order granting a new trial. (Id. at p. 1233.)
Here, neither party has identified any legal authority
directly addressing whether a trial court may reconsider a prior
order in a post-judgment resentencing proceeding. However, in
addition to DeLouize, we find guidance in cases addressing
reconsideration in the context of sentencing and other post-
judgment litigation.
For example, in Castello, supra, 65 Cal.App.4th 1242, the
defendant pled guilty to multiple counts of grand theft. (Id. at
p. 1245.) Prior to the defendant’s plea, the trial court denied the
defendant’s motion to invalidate an out-of-state prior conviction
alleged as a strike. (Ibid.) When the defendant entered his plea,
the trial court found the prior allegation true. (Ibid.) A little
over one month later, the defendant filed a motion for
reconsideration of the validity of the strike prior. (Ibid.) The
trial court granted the motion and reversed its earlier ruling
deeming the prior a strike, then sentenced the defendant. (Id. at
pp. 1245–1246.) The People appealed, arguing in part that the
trial court lacked the power to reconsider its initial ruling. (Id. at
p. 1246.)
The Castello court rejected the People’s argument, which
was largely based on Code of Civil Procedure section 1008.
(Castello, supra, 65 Cal.App.4th at p. 1245.) The court explained
19
that “[t]he California Supreme Court has often recognized the
‘inherent powers of the court . . . to insure the orderly
administration of justice.’ [Citations.] In criminal cases, the
court has acknowledged ‘the inherent power of every court to
develop rules of procedure aimed at facilitating the
administration of criminal justice and promoting the orderly
ascertainment of the truth.’ [Citations.]” (Id. at p. 1247.) The
court referred to People v. Jackson, supra, 13 Cal.4th at
page 1205, in which the California Supreme Court concluded the
trial court’s ability to consider the People’s motion for
reconsideration was “ ‘controlled by Code of Civil Procedure
section 128, subdivision (a)(8), which states that every court will
have the power to “amend and control its process and orders so as
to make them conform to law and justice.” ’ ” (Castello, at
p. 1247.)
The Castello court further explained that the court’s
inherent powers are “wide” and are not “confined by or dependent
on statute.” (Castello, supra, 65 Cal.App.4th at pp. 1247–1248.)
Those inherent powers “include authority to rehear or reconsider
rulings: ‘[T]he power to grant rehearings is inherent,—is an
essential ingredient of jurisdiction, and ends only with the loss of
jurisdiction.’ [Citations.] ‘ “One of the powers which has always
been recognized as inherent in courts, which are protected in
their existence, their powers and jurisdiction by constitutional
provisions, has been the right to control its order of business and
to so conduct the same that the rights of all suitors before them
may be safeguarded. This power has been recognized as judicial
in its nature, and as being a necessary appendage to a court
organized to enforce rights and redress wrongs.” ’ [Citations.]”
(Id. at p. 1248, italics omitted.) Applying these principles, the
20
Castello court concluded the trial court had the inherent power to
reconsider its prior ruling deeming the out-of-state conviction to
be a strike. (Id. at p. 1250.)
In Jackson v. Superior Court (2010) 189 Cal.App.4th 1051(Jackson), the appellate court considered whether the trial court
had the authority to reconsider an order granting a petition for
writ of habeas corpus. The petitioner filed a petition for writ of
habeas corpus on the ground that the prosecution had committed
prejudicial Brady error by failing to disclose a videotape during
pretrial discovery. (Id. at p. 1059.) The trial court issued an
order granting the petition, without specifying the relief the
petitioner would receive. (Ibid.) The People subsequently filed a
motion for reconsideration, arguing additional facts had come to
light after they filed a return. The additional facts suggested the
defense knew of the existence of the videotape during pretrial
discovery. The People asserted that had they been aware of this
information prior to filing a return, they would have argued no
evidence was suppressed. (Id. at p. 1060.) The trial court
granted the motion for reconsideration, vacated its prior order,
and invited the petitioner to supplement his petition for writ of
habeas corpus with additional arguments. (Id. at p. 1061.) The
petitioner filed a petition for writ of mandate in the Court of
Appeal, which, at the direction of the California Supreme Court,
issued an order to show cause. (Ibid.)
The Jackson court noted an order granting a petition for
writ of habeas corpus is an appealable order, “analogous to a final
judgment,” that becomes final once the time for appeal has
passed. (Jackson, supra, 189 Cal.App.4th at p. 1064.) The court
considered the Castello court’s reasoning regarding the trial
court’s wide powers, and also noted a trial court’s ability to
21
consider nonstatutory motions to vacate a judgment. The
Jackson court thus concluded: “[T]he court had the inherent
power to reconsider its order granting the petition for writ of
habeas corpus, and that power would only end with its loss of
jurisdiction. [Citation.] The loss of jurisdiction for purposes of
reconsideration of the ruling would occur when the order became
final and binding, or when the People filed a notice of appeal from
the order. . . . As the People had not yet filed a notice of appeal
when the superior court granted reconsideration, the superior
court had retained its inherent power to reconsider and vacate
the order granting the petition for writ of habeas corpus.” (Id. at
pp. 1067–1068.)
Applying the reasoning of Castello, Jackson, and DeLouize
here, we determine that the trial court’s ruling was an interim
order the trial court had the inherent power to reconsider.
Although the trial court initially ruled Harris was entitled to
relief, the court had not yet provided that relief. Harris had not
yet been resentenced; there was no new sentence pronounced or
amended judgment entered. The trial court had not lost
jurisdiction over the matter. (Castello, supra, 65 Cal.App.4th at
pp. 1245–1246, 1248 [trial court granted motion for
reconsideration prior to sentencing; court has inherent power to
grant rehearing that ends only with the loss of jurisdiction].) As
in Jackson, the court’s order was not yet final and binding. The
time to appeal had not yet passed.7 (Cal. Rules of Court,
7 For these reasons, we also reject Harris’s argument that
the doctrine of res judicata prevented the trial court from
reconsidering the ruling granting her resentencing petition.
Setting aside that res judicata relates to the conclusive effect a
22
rule 8.308(a); see People v. Saibu (2022) 81 Cal.App.5th 709, 734
[trial court order finding defendant entitled to § 1172.6 relief is
appealable under § 1238, subd. (a)(6)].) Further, while any
motion for reconsideration necessitates additional proceedings,
the trial court’s reconsideration of an order granting a
section 1172.6 petition, prior to resentencing, does not suggest a
risk of the parties falling into a cycle of endless litigation.
(DeLouize, supra, 32 Cal.4th at p. 1232; Nesbitt, supra, 191
Cal.App.4th at p. 243 [reconsideration of trial court order
dismissing two counts based on incorrect assumption about
statute of limitations did not offend policies underlying concept of
finality of judgments; did not involve delay or inefficiencies
associated with repeated examination and relitigation of same
facts and issues].)
The authorities Harris cites do not call for a different
result. Harris relies on People v. Flint (2022) 75 Cal.App.5th 607(Flint), for the proposition that the People may not have a
“ ‘second bite at the apple,’ ” and due process principles preclude
the People from having a “re-do.” However, the court in Flint did
not consider the trial court’s authority to reconsider a ruling
granting a section 1172.6 petition following an evidentiary
former judgment has in successive litigation (Murray v. Alaska
Airlines, Inc. (2010) 50 Cal.4th 860, 866–867), the preclusion
doctrines require a final judgment or order. When a judgment is
“still open to direct attack by appeal or otherwise, it is not final
and the doctrines of res judicata and collateral estoppel do not
apply.” (National Union Fire Ins. Co. v. Stites Prof. Law Corp.
(1991) 235 Cal.App.3d 1718, 1726.) Indeed, “a court’s rulings on
motions are not irrevocably cast in concrete and a decision on a
motion is not ordinarily res judicata.” (People v. Lopez (1981) 116
Cal.App.3d 600, 604.)
23
hearing. Instead, the Flint court addressed the preclusive effect
of the jury’s findings from the original trial.
In Flint, the defendant argued he was entitled to
“immediate” resentencing, without an evidentiary hearing, under
section 1172.6, subdivision (d)(2). (Flint, supra, 75 Cal.App.5th
at p. 613.) Under subdivision (d)(2), “[i]f there was a prior finding
by a court or jury that the petitioner did not act with reckless
indifference to human life or was not a major participant in the
felony, the court shall vacate the petitioner’s conviction and
resentence the petitioner.” The jury at Flint’s original trial found
not true a felony murder special circumstance, “which required
proof that Flint at a minimum was a major participant in the
robbery and acted with reckless indifference to human life.”
(Ibid.) The People, however, contended the jury’s “not true”
finding showed only reasonable doubt as to the requirements for
the special circumstance, and was not necessarily a finding that
Flint did not act with reckless indifference to human life or was
not a major participant in the felony, as required under
subdivision (d)(2). (Id. at p. 614.)
The Flint court rejected the People’s argument, noting the
purpose of the resentencing proceedings is to decide issues not
previously determined, not to retry “ ‘disputes that have already
been resolved.’ [Citation.]” (Flint, supra, 75 Cal.App.5th at
p. 615.) In that context, the court reasoned: “The prosecution had
an opportunity at the original trial to prove that Flint was a
major participant in the robbery who acted with reckless
indifference to human life. In enacting section [1172.6],
subdivision (d)(2), the Legislature has determined that it should
not have a second bite at the apple.” (Ibid.)
24
The Flint court’s “second bite at the apple” reference thus
concerned the preclusive effect of the original jury’s findings and
has nothing to do with the trial court’s authority to entertain a
reconsideration motion after a section 1172.6 evidentiary hearing
has been conducted. Harris also cites Flint for the proposition
that recent cases have established that the double jeopardy
clause precludes prosecutors who lose at an evidentiary hearing
from taking a “second bite at the apple.” Yet, Flint considered no
such proposition. In Flint, the trial court denied the defendant’s
petition at the prima facie stage. (Flint, supra, 75 Cal.App.5th at
p. 611.) The Flint court had no opportunity to consider the
parties’ rights, or limitations on the trial court’s authority, after
the court has conducted an evidentiary hearing.
Indeed, to the extent the Flint court considered double
jeopardy principles in connection with section 1172.6
resentencing proceedings, it rejected the petitioner’s arguments.
The court rejected the defendant’s contention that double
jeopardy principles precluded the prosecution from introducing
new theories not raised at the original trial. It also adopted the
reasoning of the court in People v. Hernandez (2021) 60
Cal.App.5th 94, 111 (Hernandez): “ ‘An evidentiary hearing under
section [1172.6] . . . does not implicate double jeopardy because
section [1172.6] “involves a resentencing procedure, not a new
prosecution.” [Citation.] The retroactive relief provided by
section [1172.6] is a legislative “act of lenity” intended to give
defendants serving otherwise final sentences the benefit of
ameliorative changes to applicable criminal laws and does not
result in a new trial or increased punishment that could
implicate the double jeopardy clause.’ ” (Flint, supra, 75
Cal.App.5th at p. 618.)
25
Harris’s reliance on other authorities is similarly
misplaced.8 Harris cites People v. Del Rio (2023) 94 Cal.App.5th
47, and People v. Silva (2021) 72 Cal.App.5th 505, for the
proposition that a petitioner has the right to due process in a
section 1172.6 proceeding. Yet, Del Rio and Silva both concerned
procedural due process and a defendant’s right to notice and the
opportunity to be heard in the redesignation and resentencing
process. (Del Rio, at p. 55 [due process violation to redesignate
uncharged offense as basis for conviction without notice and
opportunity to be heard, then resentence on the redesignated
offense]; Silva, at pp. 523–524 [defendants entitled to notice of
offenses for which they may be resentenced and opportunity to
respond].)
Neither case considered the issue before us, namely
whether the trial court has the authority to reconsider a ruling
granting a resentencing petition prior to a new sentence being
imposed. Further, Harris does not contend she lacked notice or
opportunity to be heard. Indeed, the trial court provided
significant notice prior to the further substantive resentencing
proceedings, and the parties engaged in several rounds of
supplemental briefing and hearings prior to the court’s ultimate
ruling changing its order and denying the petition.
Harris essentially contends the section 1172.6 proceedings
are the equivalent of a criminal trial, with the attendant
constitutional protections against double jeopardy. She suggests
a trial court’s interim finding that the People have not met their
8 Harris repeatedly cites People v. Vance (2023) 94
Cal.App.5th 154, however, the case is reported at 94 Cal.App.5th
706. It appears that Harris relies on a version of the opinion that
was withdrawn and cannot be cited for any purpose.
26
burden of proof under section 1172.6, subdivision (d)(3) is the
same as an acquittal at trial. However, as many other courts
have concluded, resentencing under section 1172.6 does not
implicate double jeopardy concerns. It is an ameliorative process
and an act of lenity that does not result in a new trial or
increased punishment, and therefore does not implicate many of
the constitutional rights that apply to protect a defendant who
has not yet suffered a final conviction.9 (People v. Hill (2024) 100
Cal.App.5th 1055, 1067–1068; People v. Mitchell (2022) 81
Cal.App.5th 575, 588 (Mitchell); Hernandez, supra, 60
Cal.App.5th at p. 111; People v. Myles (2021) 69 Cal.App.5th 688,
704.) Harris has identified no statutory or constitutional
impediment to the trial court exercising its inherent authority to
reconsider its interim ruling concluding Harris was entitled to
resentencing relief.
[[Begin nonpublished portion.]]
III. The Trial Court Did Not Err by Denying the Petition
A. Standard of review
We review the trial court’s order after an evidentiary
hearing for substantial evidence. “In reviewing the trial court’s
9 In a supplemental letter to this court, Harris’s counsel cited
Smith v. Massachusetts (2005) 543 U.S. 462, as additional
authority supporting the binding effect of a judicial acquittal
under the Fifth Amendment’s double jeopardy clause. In Smith,
the United States Supreme Court held double jeopardy principles
prohibited a trial court from reconsidering and reversing its
midtrial acquittal of a firearm count for insufficient evidence.
(Id. at pp. 465–475.) Because resentencing proceedings do not
implicate double jeopardy concerns, Smith is inapposite to the
trial court’s reconsideration of its ruling in this case.
27
findings for substantial evidence, we apply well-settled
principles. ‘We “ ‘examine the entire record in the light most
favorable to the judgment to determine whether it contains
substantial evidence—that is, evidence that is reasonable,
credible, and of solid value that would support a rational trier of
fact in finding [the necessary fact] beyond a reasonable doubt.’ ”
[Citation.] Our job on review is different from the trial judge’s job
in deciding the petition. While the trial judge must review all the
relevant evidence, evaluate and resolve contradictions, and make
determinations as to credibility, all under the reasonable doubt
standard, our job is to determine whether there is any
substantial evidence, contradicted or uncontradicted, to support a
rational fact finder’s findings beyond a reasonable
doubt.’ [Citations.]” (People v. Oliver (2023) 90 Cal.App.5th 466,
480.)
B. Substantial evidence supports the trial court’s
finding that Harris is guilty of murder beyond a
reasonable doubt
Harris contends the evidence was insufficient to support
the trial court’s finding that the People proved beyond a
reasonable doubt that she directly aided and abetted the murder
with express or implied malice.10 We disagree.
10 The trial court found that the People proved that Harris
shared Christopher’s intent to kill Alexander—in other words,
that she possessed express malice. However, we may affirm the
trial court’s judgment on any basis presented by the record
whether or not relied upon by the trial court. (People v. Zapien
(1993) 4 Cal.4th 929, 976 [“ ‘ “If right upon any theory of the law
applicable to the case, [a ruling or decision] must be sustained
regardless of the considerations which may have moved the trial
court to its conclusion” ’ ”].)
28
A person commits murder with implied malice when “the
killing is proximately caused by ‘ “an act, the natural
consequences of which are dangerous to life, which act was
deliberately performed by a person who knows that his conduct
endangers the life of another and who acts with conscious
disregard for life.” ’ [Citation.]” (People v. Knoller (2007) 41
Cal.4th 139, 143.) “ ‘To be considered the proximate cause of the
victim’s death, the defendant’s act must have been a substantial
factor contributing to the result, rather than insignificant or
merely theoretical.’ [Citation.]” (People v. Jennings (2010) 50
Cal.4th 616, 643.)
“[D]irect aiding and abetting is based on the combined
actus reus of the participants and the aider and abettor’s own
mens rea. ([People v. McCoy (2001) 25 Cal.4th 1111, 1122
(McCoy).]) In the context of implied malice, the actus reus
required of the perpetrator is the commission of a life-
endangering act. [Fn. omitted.] For the direct aider and abettor,
the actus reus includes whatever acts constitute aiding the
commission of the life-endangering act. Thus, to be liable for an
implied malice murder, the direct aider and abettor must, by
words or conduct, aid the commission of the life-endangering act,
not the result of that act. The mens rea, which must be
personally harbored by the direct aider and abettor, is knowledge
that the perpetrator intended to commit the act, intent to aid the
perpetrator in the commission of the act, knowledge that the act
is dangerous to human life, and acting in conscious disregard for
human life. [Fn. omitted.]” (People v. Powell (2021) 63
Cal.App.5th 689, 712–713 (Powell); People v. Reyes (2023) 14
Cal.5th 981, 990–991 (Reyes).)
29
Substantial evidence supports the conclusion that Harris
directly aided and abetted the shooting with, at a minimum,
implied malice. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 107
[“The very nature of implied malice . . . invites consideration of
the circumstances preceding the fatal act”].) The evidence
established that Harris set up the meeting with Alexander, and
that she did so with the knowledge that Christopher intended to
kill Alexander at the meeting. Witness testimony, corroborated
by phone records, reflected that Harris “chirped” Alexander
numerous times, including minutes before his death, to bring him
to the location of the shooting. Harris told a witness that she
drove to the location, and a vehicle was seen leaving the scene
matching the description of a vehicle that Harris sometimes
drove. In Hardgraves’s presence, Harris said she knew
Alexander was going to be killed. (Powell, supra, 63 Cal.App.5th
at pp. 712–713; see also McCoy, supra, 25 Cal.4th at p. 1120 [“In
another shooting case, one person might lure the victim into a
trap while another fires the gun . . . . [B]oth participants would
be direct perpetrators as well as aiders and abettors of the
other”].)
In addition to demonstrating consciousness of guilt,
evidence of Harris’s conduct after the shooting also bolstered a
finding of implied malice. Harris told others that she kicked
Alexander after Christopher shot him. She did not show concern
for Alexander or seek help. (People v. Palomar (2020) 44
Cal.App.5th 969, 978 [defendant’s failure to ascertain the victim’s
condition or call emergency services after an assault “manifested
a callous indifference to human life” sufficient for implied malice];
People v. Cravens (2012) 53 Cal.4th 500, 511 [defendant’s conduct
after fight bolstered finding of implied malice; defendant took no
30
steps to determine victim’s condition or obtain emergency
assistance, laughed about victim’s injuries].) Instead, the
evidence indicated Harris took Alexander’s phone after the
shooting to avoid being linked to the murder. Viewing the record
in the light most favorable to the court’s order, there is
substantial evidence Harris acted with implied malice.
Reyes, supra, 14 Cal.5th 981, provides a helpful contrast.
In Reyes, the defendant and other members of affiliated gangs
began chasing a passing car on bicycles, near rival gang territory.
(Id. at p. 985.) During the chase, a gun was fired, striking the
driver in the head and killing him. A jury convicted Reyes of
second degree murder. (Id. at p. 986.)
Reyes petitioned the trial court for resentencing under
section 1172.6. The trial court denied the petition after an
evidentiary hearing, finding beyond a reasonable doubt that
Reyes committed second degree implied malice murder. (Reyes,
supra, 14 Cal.5th at p. 987.) The court found the “act” Reyes
committed that caused the death of the victim was his traveling
to rival gang territory with several other gang members, one of
whom was armed. The court further found that Reyes committed
that act with the mental state necessary for implied malice.
(Ibid.) The Court of Appeal affirmed. (Ibid.)
The California Supreme Court reversed. (Reyes, supra, 14
Cal.5th at pp. 989–990.) It first found that no evidence
established Reyes’s conduct—traveling to a rival gang territory
with other gang members—was a “ ‘substantial factor’ ” that
proximately caused the victim’s death. (Id. at pp. 988, 989.) It
held that “acts that merely create a dangerous situation in which
death is possible depending on how circumstances unfold do not,
without more, satisfy this causation requirement. There was no
31
evidence that Reyes’s acts precipitated or provoked the shooting.
And there is no reason to believe that the killing of [the victim]
would not have occurred if Reyes had not accompanied his fellow
gang members on the ride or participated in the chase.” (Id. at
p. 989.) Our high court further found that Reyes’s act of
traveling into rival gang territory with other gang members was
not dangerous to human life, because it did not give rise to a
“ ‘ “high degree of probability that it will result in death” ’ ”
required for implied malice murder. (Ibid.)
The high court in Reyes reviewed the trial court’s order
independently because it found the trial court misunderstood the
elements of direct aiding and abetting implied malice murder,
thus presenting a question of law. (Reyes, supra, 14 Cal.5th at
p. 988.) The trial court, by relying on the jury instruction for
implied malice murder without reference to the elements of direct
aiding and abetting, failed to evaluate Reyes’s mental state
concerning the life-endangering act committed by the direct
perpetrator. (Id. at p. 992.)
Harris contends the trial court made the same legal error
here. However, nothing in the trial court’s order indicates it
misunderstood or misapplied the elements for direct aiding and
abetting implied malice murder. To the extent Harris is arguing
the trial court failed to make certain factual findings in its order,
the argument is foreclosed by the doctrine of implied findings.
(People v. Ashford University, LLC (2024) 100 Cal.App.5th 485,
525; Fladeboe v. American Isuzu Motors Inc. (2007) 150
Cal.App.4th 42, 58.)
Further, and in contrast to Reyes, substantial evidence
established that Harris’s conduct was a “substantial factor” that
proximately caused Alexander’s death. As described above, there
32
was evidence that Harris facilitated the shooting by contacting
Alexander to set up the meeting and by driving her brother to the
location. She engaged in both acts with the knowledge that
Christopher intended to kill Alexander once they met. Here,
there is reason to believe that the killing would not have occurred
without Harris’s participation. Taken together, the evidence
supported a finding that Harris intended to aid her brother in the
shooting, knowing Christopher planned to kill Alexander; her
acts had a high probability of resulting in Alexander’s death; and
she acted in conscious disregard for his life through her conduct.
(Reyes, supra, 14 Cal.5th at p. 989; Powell, supra, 63 Cal.App.5th
at pp. 712–713.)
C. The trial court did not apply the wrong legal
standard in its evaluation of Hardgraves’s
recantations
Harris contends the trial court applied the “wrong legal
standard” when evaluating Hardgraves’s recantations of his trial
testimony. Specifically, Harris contends the trial court
improperly relied on three cases—In re Roberts (2003) 29 Cal.4th
726 (Roberts), People v. Redmond (1966) 246 Cal.App.2d 852(Redmond), and People v. McGaughran (1961) 197 Cal.App.2d 6(McGaughran)—to conclude that the unreliability of
Hardgraves’s recantations “elevate[d]” his otherwise inconsistent
trial testimony to the status of proof beyond a reasonable doubt
that Harris was guilty of murder.
Harris’s contention lacks merit. The trial court did not rely
on a “standard” from Roberts, Redmond, or McGaughran to
conclude, as Harris suggests, that the unreliability of
Hardgraves’s recantations necessarily meant his trial testimony
was sufficient proof beyond a reasonable doubt that Harris was
33
guilty of murder. Rather, the trial court cited these cases for the
narrow, well-established principle that recantations of sworn
testimony are to be viewed with suspicion.
In Roberts, a witness recanted his testimony implicating
the defendant in a murder, only to later retract his recantation.
(Roberts, supra, 29 Cal.4th at pp. 739–740.) Because the
witness’s recantation and subsequent retraction made it unclear
whether his trial testimony or his recantation was false, our high
court disagreed with an appointed referee’s conclusion that the
witness’s trial testimony lacked credibility. (Id. at pp. 742–743.)
It reasoned that it would “not disturb the jury’s verdict based
upon a recantation that must be viewed with suspicion and was
subsequently disavowed by [the witness].” (Id. at p. 743.)
In both Redmond, supra, 246 Cal.App.2d at page 864, and
McGaughran, supra, 197 Cal.App.2d at page 17, the reviewing
courts found no abuse of discretion in trial court orders denying a
motion for a new trial based on a witness’s affidavit recanting
prior trial testimony. The decisions stated the general principle
that ordinarily little credence can be placed on a witness’s
posttrial affidavit indicating the witness’s prior trial testimony
was false.
Here, once it was clear that Hardgraves’s testimony was
pivotal to the resentencing proceedings, the defense presented
the court with Hardgraves’s posttrial statements in which he
purported to recant his trial testimony and exculpate Harris.
The trial court was therefore tasked with evaluating whether
these posttrial statements undermined Hardgraves’s trial
testimony. In this context, the trial court appropriately applied
the principle stated in Roberts, Redmond, and McGaughran, that
subsequent recantations may be viewed with suspicion.
34
Ultimately, the trial court concluded that Hardgraves’s posttrial
statements did not undermine his sworn trial testimony. There
is no basis for Harris’s claim that the court misunderstood or
misapplied the law and determined Hardgraves’s recantations
alone constituted evidence of Harris’s guilt. Instead, the record
reflects that the trial court appropriately assessed the credibility
of Hardgraves’s testimony, found the posttrial statements
unpersuasive, and, on the strength of Hardgraves’s trial
testimony and other evidence, concluded the People met their
burden to establish Harris’s guilt beyond a reasonable doubt.
D. There is no basis to conclude that the court
failed to consider Harris’s youth in evaluating
her petition
Finally, Harris argues that reversal is necessary because
the trial court failed to consider her youth when it concluded the
evidence showed she possessed the requisite mental state for
second degree murder. The record does not support her
argument.
At the March 2022 hearing, Harris’s counsel and the court
discussed Harris’s young age as a factor the trial court should
consider when determining whether the People could prove
beyond a reasonable doubt that she was guilty of murder under
current law. Counsel informed the trial court that age “is a big
factor in the cases that have been coming out in the court of
appeals.” The trial court acknowledged the relevance of youth
and brain development in the formation of intent. Harris’s
counsel did not raise her age in further briefings, and neither
counsel nor the court mentioned Harris’s youth in any of the
subsequent proceedings. Harris now contends the absence of
further express discussion of her youth indicates the trial court
35
failed to consider her age as a factor when evaluating her
petition. We disagree.
A “ ‘cardinal principle of appellate review’ ” is that a
“ ‘ “ ‘judgment or order of the lower court is presumed correct[,
and a]ll intendments and presumptions are indulged to support it
on matters as to which the record is silent, and error must be
affirmatively shown.’ ” [Citation.]’ ” (In re Julian R. (2009) 47
Cal.4th 487, 498–499.) A corollary to this rule is that “ ‘ “a trial
court is presumed to have been aware of and followed the
applicable law. [Citations.]” ’ [Citation.]” (Id. at p. 499.)
We presume the trial court followed the applicable law
when it denied Harris’s petition in October 2022. At that time,
the applicable law included multiple published appellate cases
finding that youth is a relevant factor bearing on mental state in
section 1172.6 petitions. (Cf. People v. Pittman (2023) 96
Cal.App.5th 400, 416, 417 [it could not be presumed that the trial
court implicitly considered youth where age was not raised below,
and the court denied the petition before appellate courts decided
the question].) The earliest cases involved juvenile offenders.
(See People v. Harris (2021) 60 Cal.App.5th 939, 960; In re Moore
(2021) 68 Cal.App.5th 434, 439, 453; People v. Ramirez (2021) 71
Cal.App.5th 970, 987, 991.) But by the time the trial court
denied Harris’s petition in October 2022, the decision in Mitchell,
supra, 81 Cal.App.5th 575, had also issued, which considered
youth as a factor when evaluating the petition of a defendant who
was 18 years old at the time of the underlying offense. (Id. at
pp. 584, 595.)
In March 2022, the trial court expressly indicated it was
aware of ongoing developments in the law regarding youth and
brain development as a consideration in resentencing cases. In
36
the absence of any indication to the contrary, we must presume
the court followed the law it had indicated it was aware of, and
considered youth as a factor when evaluating Harris’s petition.
The lack of further express discussion of the factor does not
change our analysis.
[[End nonpublished portion.]]
37
DISPOSITION
The order denying Harris’s petition for resentencing is
affirmed.
ADAMS, J.
We concur:
EGERTON, Acting P. J.
BERSHON, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
38