Filed 4/21/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A163165
v.
KIMIKO KIMIO WILSON, (Contra Costa County
Super. Ct. No. 50407916)
Defendant and Appellant.
A jury’s inability to reach a verdict on the sentencing enhancement
allegations for personally using and discharging a firearm in the commission
of a crime does not preclude the trial court, in a subsequent Penal Code
section 1170.95 petition hearing, from finding beyond a reasonable doubt that
the defendant was the actual shooter.1
Kimiko Kimio Wilson appeals from an order denying his petition for
resentencing pursuant to section 1170.95, after he was convicted and
sentenced for multiple murders. He contends the order is not supported by
substantial evidence and the court failed to take his youth into account.
1 All statutory references hereafter are to the Penal Code. After the trial
court denied resentencing in this case, section 1170.95 was amended by
Senate Bill No. 775 (2021–2022 Reg. Sess.) effective January 1, 2022. The
parties do not contend the amendment affects the analysis here. Effective
July 1, 2022, section 1170.95 was renumbered as section 1172.6. We refer to
the statute as section 1170.95 for consistency with the record.
1
We will affirm the order. The evidence was sufficient for a trier of fact
to conclude, beyond a reasonable doubt, that Wilson was guilty of murder as
the actual shooter.2
I. FACTS AND PROCEDURAL HISTORY
In 2004, Wilson was charged with two counts of first degree murder
(§ 187, subd. (a)) and one count of willful, deliberate and premeditated
attempted murder (§§ 187, subd. (a), 664, subd. (a)). As to each count, it was
alleged he personally used and intentionally discharged a firearm in the
commission of the offense, causing great bodily injury and death (§ 12022.53,
subd. (b)–(d)). A special circumstance of multiple murders was also alleged
(§ 190.2, subd. (a)(3)). The matter proceeded to a jury trial.
A. Trial
1. Trial Evidence3
On June 16, 2003, at about 8:39 p.m., DeForrest Thompson placed a
911 call reporting that two people had been shot at Triangle Court in
2 Wilson also argues the evidence cited by the court was not substantial
evidence of murder by an aiding and abetting theory or as a major
participant who acted with reckless disregard for human life. We need not
decide if there was substantial evidence to support these alternative theories
as this court finds there was substantial evidence to determine beyond a
reasonable doubt that Wilson was the direct perpetrator of the murders.
3 For brevity, we derive this summary from the factual summary set
forth in our opinion in Wilson’s direct appeal. (People v. Wilson (Jul. 31,
2009, A118798) 2009 Cal.App.Unpub. Lexis 6210 [nonpub. opn.] (Wilson).)
The parties rely on our prior summary as well. The trial court’s order
denying resentencing did the same, finding the summary “to accurately
reflect the evidence in the trial record.” We note, however, that the trial
court’s analysis included copious citations to the trial transcripts, confirming
that the court relied on the actual trial evidence in deciding the resentencing
motion. (See § 1172.6, subd. (d)(3).)
2
Richmond, California. He described the lone perpetrator as young, Black,
and six feet tall.4
Richmond police arrived at the scene and located three victims. One of
the victims was Uchenna Okeigwe, who was in the driver’s seat of a black
Chevrolet Caprice Classic with a gunshot wound to his head. The driver’s
door was closed and its window was partially open. An autopsy disclosed
that Okeigwe had two gunshot entry wounds to the left forehead and a
gunshot entry wound behind the left ear. Gunpowder stippling near the head
wounds indicated the bullets were fired from 6–18 inches away. Okeigwe had
$134.94 on his person; no drugs were found, but Ziploc bags of the type used
to package drugs were hidden in the vehicle.
A second victim, Erica Young, was slumped over in the back seat of the
vehicle with gunshot wounds to her back and head. Autopsy reports
disclosed that the trajectory of the bullets was consistent with being shot by
someone standing outside the left passenger window while she was stretched
across the rear seat of the car. That window was shattered.
The third victim, Sheianna Babcock, was lying on the asphalt about 30
feet to the passenger’s side of the vehicle, alive but bleeding profusely from
her head. The front passenger-side door was open. Babcock was airlifted to
John Muir Hospital in critical condition.
Eight bullet casings were found at the crime scene, all of which were
fired from the same .45-caliber semiautomatic pistol.
a. Thompson’s Eyewitness Account
Thompson testified that he saw the Caprice drive up slowly at
approximately 8:30 p.m. About 15 minutes later, he heard gunshots coming
4 Wilson is Black and, at the time of the crimes, was 18 years old and
stood six feet three or four inches tall.
3
from the direction of the Caprice and saw a young woman on the right side of
the car, being chased by a man who had come from the front of the car. The
woman slipped and fell. The man stood over her as she lay on her back,
looking up at him with her hands extended outward, yelling something like,
“I didn’t do anything.” The man shot her, then ran northeast toward North
Richmond.
That night, Thompson described the suspect to the investigating
officers as a Black male about 25 years old, six feet tall, 180 pounds. At trial,
he testified that the man was 20 to 25 years old, about six feet tall, and
skinny (about 180 pounds). Because Thompson’s truck was elevated, his
estimate of the man’s height might have been distorted. Thompson testified
that Wilson could have been the man he saw that night.
b. Babcock’s Identification of Wilson as the Shooter
On June 18, 2003, Richmond Homicide Detective Mitchell Peixoto
interviewed Babcock at John Muir Medical Center. She had two tubes down
her throat and could not speak. Peixoto asked her “yes or no” questions and
had Babcock respond by blinking once for no and twice for yes. Using this
method, Babcock indicated that she knew who had shot her, that the shooter
had been in the car with her before he started shooting, he was a Black male
named “Kimiko,” and he lived in North Richmond.5
Detective Peixoto ran the name “Kimiko,” and the computer returned
the name of Kimiko Wilson. The police obtained Wilson’s picture and
determined “the description and location of where he lived . . . seemed to
match.” Using a computer program, police put together a photographic
5 Okeigwe’s brother had provided Detective Peixoto the name “Kimiko,”
identifying him as Okeigwe’s friend and fellow student and indicating that, if
Okeigwe went to Richmond, it was to see Kimiko.
4
lineup with persons who had similar characteristics. Peixoto returned to
John Muir Medical Center and showed Babcock the lineup later on June 18,
2003. Babcock identified Wilson as the shooter, confirming her identification
twice. Peixoto then showed her a single photograph of Wilson, and she twice
confirmed he was the shooter.
Later that day, Babcock told Detective Peixoto she did not know who
shot her. When shown the single photograph of Wilson, she shifted to a fetal
position and her heart rate climbed from 70 to 106. Peixoto believed she was
“in fear of her life and fear for some kind of retaliation.”
At trial, Babcock testified that she could not remember the interviews
at the hospital. On the day of the incident, she and her cousin Young went to
Richmond with Okeigwe in his black Chevrolet Caprice. Okeigwe drove,
Babcock sat in the front passenger seat, and Young sat in the rear driver-side
seat. Okeigwe was on the phone several times with a person he planned to
meet. At some point, Okeigwe’s car was stopped in the area of other parked
cars. Okeigwe, Babcock and Young were in the car. She heard shots as she
was getting out of the car. She recalled being on the ground, looking up at
the person who shot her. She “cried out to God and asked him to have mercy
on me because I wasn’t ready yet.” She got a clear look at the shooter’s face
and had no doubt it was Wilson. Babcock believed the gun was a .45 caliber,
because it looked like a police gun.
c. Wilson’s Access to a .45 Caliber Firearm
Daryl Jackson, a prosecution investigator, testified that he spoke to
Ashley Jordan on June 25, 2004. Jordan said that shortly before June 16, she
saw Wilson remove a semiautomatic pistol from a car parked in the friend’s
driveway, place it in his waistband, and walk away. The pistol was about the
same size as Jackson’s duty weapon, which was approximately the size of a
5
.45-caliber pistol. At trial, Jordan did not recall saying these things to
Jackson.
d. Wilson’s Calls to Okeigwe on the Day of the Murder
On June 16, 2003 at 5:52 p.m. and 7:17 p.m., calls were made from
Wilson’s cell phone to Okeigwe’s cell phone. At 8:02 p.m., a call was made
from Okeigwe’s cell phone to Wilson’s cell phone; at the start of the call,
Okeigwe’s signal bounced off a cell tower in San Pablo, and at the end it
bounced off a cell tower in North Richmond.
Thompson’s 911 call was made at 8:39 p.m. At 8:57 p.m., a call was
placed on Wilson’s cell phone to an Alameda number that Wilson had called
five times between 8:02 and 8:09 p.m.
e. Evidence of Okeigwe’s and Wilson’s Drug Trafficking
Based on voice mail messages left on Okeigwe’s cell phone, contact with
a telephone number Okeigwe called on June 16, 2003, and other information,
Detective Peixoto, who was qualified as an expert on drug dealing in
Richmond, opined that Okeigwe was a street-level marijuana dealer and was
planning to purchase marijuana on June 16, 2003. Based on documents
seized pursuant to a search warrant from Wilson’s room in his grandmother’s
residence in North Richmond, including a pay/owe sheet relating to drug
transactions and a list of monetary amounts, Peixoto opined that Wilson sold
narcotics.
f. Wilson’s Incriminating Response to Darlene Weaver
On June 19, 2003 at 2:56 a.m., a police SWAT team executed a warrant
to arrest Wilson at his last known residence in Antioch, but did not locate
him. The owner, Darlene Weaver, who was Wilson’s second cousin, told
police that Wilson had moved to North Richmond. Weaver testified that
Okeigwe was one of Wilson’s closer friends.
6
After the police visit, Weaver called Wilson at his grandmother’s house
and said the police were looking for him for murder. According to Detective
Peixoto’s account of what Weaver told Peixoto, Wilson did not respond
immediately to Weaver’s questions. Then Wilson said, “ ‘They don’t have me
as an accessory?’ ” Weaver replied, “No, they said you killed two people.”
Wilson then hung up the phone. Weaver immediately called back, and
Wilson’s grandmother said he was no longer there.
g. Wilson’s Arrest After a Car Chase
On July 9, 2003, Wilson was observed driving in Humboldt County.
Two police SUV’s followed and activated their flashing lights to get him to
pull over. Wilson drove evasively, accelerated to 45 to 50 miles per hour, at
times reached 85 to 95 miles per hour, and ran stop signs. After about five
minutes of pursuit, the transmission seal blew out on his car and it came to a
rolling stop. Wilson was arrested.
h. Wilson’s Defense at Trial
Wilson’s defense was based on third-party culpability. He claimed that
Marcus Rauls—who was deceased by the time of the trial—was the actual
perpetrator and the shootings were motivated by a drug-related dispute.
Wilson testified that both he and Okeigwe sold marijuana. One of
Wilson’s suppliers was Rauls, whom he met just after Rauls was released
from juvenile custody for murder. Rauls also supplied marijuana to Okeigwe
after Wilson introduced them. Sometimes Okeigwe would ask Wilson to find
Rauls to make a transaction. Typically, Okeigwe would purchase marijuana
from Rauls for about $750 in cash, and they often met in Triangle Court
where the killings occurred.
On June 16, 2003, Wilson and Okeigwe called each other in the
afternoon. Okeigwe asked Wilson to find Rauls for him. Wilson told Rauls
7
that Okeigwe wanted to see him, and Rauls said to meet at 8:30 p.m. in
Triangle Court. Wilson relayed the information to Okeigwe.
According to Wilson, Okeigwe picked Wilson up in his black Caprice,
with two women whom Wilson did not know. Wilson sat in the rear
passenger-side seat. Okeigwe drove to Triangle Court, where they waited for
Rauls. Rauls approached and fired, as Wilson opened the right passenger
door. Wilson ran to his grandmother’s house, unaware whether anyone had
been wounded. He claimed he did not call his friend Okeigwe after the
incident because, “I mean, what do I call and ask? There was a shooting. I
don’t want to know. . . . [I]t’s none of my business.”
Wilson testified that Rauls later told him why he killed Okeigwe:
Okeigwe was snitching to other drug dealers that Rauls was selling drugs in
their territory.
After learning Rauls had been shot to death in April 2004, Wilson was
willing to disclose that Rauls was the killer. Regarding the car chase that led
to his arrest, Wilson said he fled because he did not have a driver’s license
and knew the police would find out he was wanted for murder. He
acknowledged that he did not attend his friend Okeigwe’s funeral or express
condolences to Okeigwe’s or Young’s relatives. He further acknowledged that
he attempted to contact potential witnesses, either directly or indirectly, in
the weeks before the trial.
i. Rebuttal
After Wilson was arrested, Detective Peixoto asked him to confirm that
he told Weaver, “ ‘Are they looking for me as an accomplice?’ ” Wilson
admitted making the statement.
8
Christine Rauls, Marcus Rauls’s mother, testified that she saw Rauls
almost daily between June 2003 and his death on August 4, 2004; Rauls
never told her that he had anything to do with the killings.
Ms. Rauls further testified that Wilson had called her from jail and said
he was going to send someone to talk to her. Wilson’s brother Marvin
appeared at her house and asked her to take a drive with him. “[Marvin]
said, ‘You know, um, your son and my little brother was tight, and I don’t
even know how to come at you with this, but could you just help his little
brother out and say that Marcus did it?’ ” The next day, Wilson spoke to Ms.
Rauls on the phone and said she should think about it and he understood it
would be hard for her to say that about her son.
2. Prosecution Argument and Jury Instructions
In closing argument, the prosecutor relied almost entirely on the theory
that Wilson was the direct perpetrator of the crimes. However, he also briefly
argued felony murder culpability based on aiding and abetting a robbery.
The jury was instructed on aiding and abetting liability, robbery felony
murder, and accomplice liability for felony murder.
3. Conviction and Sentence
The jury found Wilson guilty of both counts of first degree murder and
of the willful, deliberate and premeditated attempted murder of Babcock.
The jury also found true the special circumstance allegation of multiple
murders. The jury was unable to reach a verdict, however, on the personal
use and discharge allegations.
In July 2007, the court sentenced Wilson to life without the possibility
of parole on the murder convictions (staying the sentence on the second
murder count pursuant to section 654) and a concurrent term of life with the
possibility of parole on the attempted murder conviction.
9
B. Direct Appeal
In July 2009, this Court affirmed the judgment. (Wilson, supra, 2009
Cal.App.Unpub. Lexis 6210 at *67.) We concluded, among other things, that
there was sufficient evidence for the trial court to instruct on accomplice
liability. (Id. at *36–46.) Indeed, we concluded “there was sufficient evidence
to support the murder and attempted murder convictions on a theory of
accomplice liability” and there was even “sufficient evidence to support a
conviction on the direct perpetrator theory.” (Id. at *31, 45–46. Italics
added.) In October 2009, our Supreme Court denied review. (People v.
Wilson (Oct. 14, 2009, S175814) [nonpub. ord.].)
C. Petition for Resentencing
In 2018, Senate Bill No. 1437 (SB 1437) was enacted to “amend the
felony murder rule and the natural and probable consequences doctrine, as it
relates to murder, to ensure that murder liability is not imposed on a person
who is not the actual killer, did not act with the intent to kill, or was not a
major participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f); see People v.
Gentile (2020) 10 Cal.5th 830, 842.) It accomplished this by, among other
things, amending section 189 such that murder liability is not imposed on
persons convicted of felony murder unless they were the actual killer, an
aider and abettor who acted with intent to kill, or a major participant in the
underlying felony who acted with reckless indifference to human life.
SB 1437 also created section 1170.95, which established a procedure for
defendants convicted of murder under the old law to seek resentencing in the
trial court if they believe they could not be convicted of that crime given the
above amendment to section 189. (Stats. 2018, ch. 1015, § 4.)
10
In November 2019, Wilson filed a petition for resentencing under
section 1170.95. The trial court issued an order to show cause under section
1170.95, subdivision (c), and, after briefing by the parties, held an
evidentiary hearing that began on March 16, 2021.
1. Evidentiary Hearing Testimony
On behalf of Wilson, Anica Bowling testified that she dated Marcus
Rauls from 2002 through 2004. At one point, Rauls possessed a firearm.
When Rauls heard that his friend Wilson had been arrested for murder,
Rauls appeared nervous. While watching the news report, Rauls mumbled,
“would you tell if you did something and the other person . . . didn’t do it.”
Although Rauls died in 2004, Bowling never contacted Wilson’s trial
attorney to report that Rauls was the actual shooter. She claimed she was
afraid to testify at Wilson’s jury trial. On cross-examination, Bowling
acknowledged that Rauls never admitted complicity in the murders.
2. Trial Court’s Order
On June 10, 2021, the court denied the resentencing petition by written
order. In so doing, the court considered the information, abstract of
judgment, jury instructions, minute orders, trial transcript, unpublished
appellate court opinion from the direct appeal, Bowling’s evidentiary hearing
testimony, and, because the court was the original trial judge, “its own
observations of the witnesses’ demeanor and credibility.”
The court found that the evidence established Wilson’s guilt beyond a
reasonable doubt under alternative theories: (1) Wilson was the actual killer
and (2) if Rauls was the killer, Wilson aided and abetted Rauls in the murder,
with the intent to kill, and he acted as a major participant in the robbery
with reckless indifference to human life.
11
a. Wilson as the Killer
The court determined that Wilson was the actual killer based in part on
the eyewitness testimony of victim Babcock, whom the court found credible.
“Ms. Babcock clearly and consistently identified defendant as the shooter.
Thompson’s testimony in some ways corroborates her account, and does not
materially refute Babcock’s identification of defendant as the actual shooter.
Based on the content of the testimony alone, Babcock’s identification is
credible and compelling and shows that defendant was the shooter. . . .
Although the trial was some 14 years ago, the court has a vivid memory of
this witness. She knew what she saw, she was unwavering, and her quiet
confidence was compelling.” (Italics added.)
Further, citing to the trial transcript, the court found that
circumstantial evidence supported the conclusion that Wilson was the
shooter. Wilson persuaded Okeigwe to go to Triangle Court, where Okeigwe
was killed: Okeigwe’s brother testified that if Okeigwe went to Richmond, it
was Wilson he was going to meet; cell phone records confirmed that Wilson
made several calls to Okeigwe’s cell phone that night; Okeigwe called Wilson
with cell tower signals from North Richmond at 8:02 p.m., the shooting
occurred at approximately 8:25 p.m., and Okeigwe did not receive further
calls from Wilson’s cell phone after 8:35 p.m. Shortly before the shooting,
Wilson was seen with a gun resembling a.45 caliber pistol, and forensics
confirmed that a .45 caliber semiautomatic pistol was used to shoot Okeigwe
and Young. When Weaver confronted Wilson about the murder, Wilson
asked whether the police thought he was an accessory (or accomplice) –
indicating he knew of the murder and he was involved. Wilson displayed
consciousness of guilt by fleeing to Humboldt County after his call with
Weaver, failing to show concern about his friend Okeigwe after the shooting,
12
failing to attend Okeigwe’s funeral or contact his family, and evading police
in a high-speed car chase when they tried to stop him in Humboldt County.
Further, Wilson attempted to manufacture evidence, getting his brother to
contact Rauls’s mother to say Rauls was the shooter, which was “tantamount
to pressuring a potential witness to give favorable evidence with the
incentive that there would be no legal ramifications for Ms. Rauls’ son who
was already dead.”
The court also rejected Wilson’s third-party culpability theory: “The
court does not find defendant’s testimony and his third-party culpability
defense to be credible. The defendant’s story did not add up, especially in the
face of the evidence that he was the shooter. Neither eyewitness saw anyone
run from the car other than the shooter and Ms. Babcock. No one said Rauls
even was there. Defendant’s description of Rauls’ hairstyle at the time was
undermined by the testimony of Ra[u]ls’ mother. . . . All these facts alone
would lead the court to find his testimony not credible. In addition, however,
the court observed defendant as he testified. Like Ms. Babcock, he was a
memorable witness and the court has a clear recollection of his demeanor and
tone when he testified. He was among the least credible witnesses this court
has ever observed. He had an implausible excuse or story for every
inculpatory fact.” (Italics added.)
As to Bowling’s testimony at the evidentiary hearing, the court stated:
“The court finds that Bowling was not a credible witness. Her testimony
lacked any specificity, was vague and changed several times in terms of how
and what Rauls said to her when watching the news of defendant’s arrest for
murder. Moreover, her testimony as to why and how she decided to come
forward at this time was evasive and utterly lacking even the most basic facts
to be believed. She could not remember any details about the very event that
13
would cause her to make such a serious, life altering decision.” The court
continued: “Without more, the court cannot reasonably infer that Rauls’
obtuse mumblings to Bowling amounted to an admission that he was
responsible for shooting Okeigwe and Young. [¶] When asked questions by
defendant’s counsel, she was warm and cooperative. When asked questions
by the Deputy District Attorney, her demeanor darkened. She became
defensive, evasive and argumentative. She deflected and distracted, to avoid
answering a simple and direct question. [¶] In the end, the court accords no
weight to Ms. Bowling’s testimony, because it is not credible and is not worth
any weight.” The court found it was not bound by the jury’s inability to reach
a verdict on the personal discharge enhancement.
The court concluded: “In sum, this court has carefully reviewed all the
evidence in this case. On the face of the record, the evidence proves the
defendant’s guilt of murder as the shooter, beyond a reasonable doubt. The
court’s own observations of the witnesses—particularly Ms. Babcock, Ms.
Bowling and the defendant himself—reinforces that conclusion.”
b. Major Participant and Aider and Abettor
The court further concluded that, even if Rauls was the actual shooter,
Wilson would not be entitled to relief under section 1170.95 because he would
still be guilty of murder both as a major participant who acted with reckless
indifference to human life and as an aider and abettor with intent to kill.
The court found, beyond a reasonable doubt, that Wilson was a major
participant in the planning and commission of the robbery: he arranged for
Okeigwe to meet Rauls and directed him to the scene of the killing; he was
admittedly at the scene and heard the shots; and his claim that he ran away
when he heard the shots was not credible. Furthermore, the court found
beyond a reasonable doubt that Wilson acted with reckless indifference to
14
human life, citing factors referenced in People v. Clark (2016) 63 Cal.4th 522,
622 (Clark)): (1) a firearm was used to shoot the victims; (2) Wilson was
present during the robbery-murder but never sought to restrain Rauls or
render aid to the victims; (3) Wilson knew of Rauls’s propensity to kill,
including that he had been adjudicated for murder and wore a gun in his
waistband; and (4) Wilson made no effort to minimize the possibility of
violence during the robbery-murder, but instead set up Okeigwe’s meeting
with Rauls, failed to call it off when he saw Babcock and Young there too, and
failed to stop Rauls from shooting any of the victims, render aid, or call for
medical assistance.
The court also found, beyond a reasonable doubt, that Wilson was
guilty of murder under a theory of direct aiding and abetting: he had an
intent to kill Okeigwe and actively assisted the killer in the commission of
the murder. (§ 189, subd. (e)(2); § 1170.95, subd. (a)(3).) Wilson was the
intermediary for drug deals between Rauls and Okeigwe, and he arranged for
Okeigwe and Rauls to meet at the usual location at 8:30 p.m. Wilson and
Rauls both intended to rob Okeigwe—and did rob him—as evidenced by the
fact that Okeigwe arrived at the scene to buy drugs but was found dead
without any drugs or enough money to buy them. Furthermore, Rauls had a
motive to kill Okeigwe for telling rival drug dealers that Rauls had been
selling drugs in their territory, and because of Wilson’s close relationship
with Rauls as Wilson’s drug supplier, Wilson shared this motive due to his
interest in ensuring Rauls was unharmed by Okeigwe’s actions.
Furthermore, Wilson had a separate motive to kill or rob Okeigwe because he
believed Okeigwe planned to rob Wilson’s relative.
The court concluded: “In the end, this is not a close case. The felony
murder rule was repealed because it was harsh, and consigned people to
15
decades or life in prison for minor involvement in crimes with no intent for
anyone to be hurt. That is not this case. Defendant was not a minor
participant in a simple robbery gone awry. Defendant shot three people,
killing two. The third lived to identify him as the shooter, again and again
and again. Even if one were to credit defendant’s improbable (and
convenient) story that a dead man really did the actual shooting, the evidence
is overwhelming that defendant was a major participant in a dangerous
armed robbery, acted at the least with reckless indifference, and in truth,
shared Rauls’ intent to eliminate the traitorous Okeigwe and any witnesses
to that elimination. Simply put, if Rauls was the shooter, he was not on a
frolic of his own; defendant was all in with Rauls. Accordingly, the
prosecution has proven beyond a reasonable doubt that the defendant is
guilty of first degree murder under the new law.” This appeal followed.
II. DISCUSSION
Wilson contends the court’s denial of his resentencing petition was not
supported by substantial evidence.6 In a supplemental opening brief, he
argues that the matter should be remanded for consideration of his youth.
A. Substantial Evidence
In ruling on a resentencing petition, the trial court determines whether
the prosecution proved beyond a reasonable doubt that the defendant is liable
for murder as defined after amendments to the relevant statutes. (Former
6 Wilson points out that resentencing relief is now available for persons
convicted of attempted murder, and he argues there was no evidence that
Wilson intended to kill Babcock. The issue was not raised in the trial court,
and it is not properly before us in this appeal. Nevertheless, eyewitness
testimony that Babcock was chased by the man who shot her as she lay on
the ground, pleading for her life and Babcock’s positive identification of
Wilson as her shooter is sufficient evidence of Wilson’s intent to kill.
16
§ 1170.95, subd. (d)(3) [prosecution must prove beyond a reasonable doubt
that the petitioner is ineligible for sentencing]; § 1172.6, subd. (d)(3) [same].)
We review the trial court’s factual findings for substantial evidence and the
court’s application of those facts de novo. (People v. Cooper (2022) 77
Cal.App.5th 393, 412 (Cooper).)
Wilson argues that Babcock’s identification testimony does not
constitute substantial evidence that he was the actual killer, because
eyewitness identifications are inherently untrustworthy, Babcock’s certainty
in her identification does not mean she was right, and Thompson was unable
to positively identify Wilson as the shooter at the trial (and had thought
Wilson’s photo in a newspaper was not a photo of the shooter).
Wilson’s argument is unavailing. Thompson’s inability to identify
Wilson as the shooter does not mean that Babcock—who was lying on the
ground as the shooter stood over her—was unable to reliably identify Wilson
as the shooter. In any event, Babcock’s identification testimony was
buttressed by the considerable circumstantial evidence cited by the trial
court. Although Wilson debates its persuasiveness, it is not our role to
reweigh the evidence; substantial evidence supported the court’s finding.
(See also Wilson, supra, 2009 Cal.App.Unpub. Lexis 6210 at *31 [“We agree
there was sufficient evidence to support a conviction on the direct perpetrator
theory, and Wilson does not challenge the sufficiency of the evidence on this
basis.”].)
Nonetheless, Wilson contends the court’s finding that he was the actual
killer is inconsistent with the jury’s inability to reach a verdict on the
sentencing enhancement allegations for personally using and discharging a
17
firearm in the commission of the crimes (§ 12022.53, subd. (b)–(d)).7 As we
observed in Wilson’s direct appeal, there is a reasonable probability that one
or more jurors had a reasonable doubt whether he was the shooter. (Wilson,
supra, 2009 Cal.App.Unpub. Lexis 6210 at *31–34.)
Appellant argues that Cooper applies in this case. We disagree. In
Cooper, supra, 77 Cal.App.5th 393, the defendant had been convicted of first
degree murder and kidnapping based on his participation with others, but
was acquitted on a charge of being a felon in possession of a firearm. In a
later section 1170.95 proceeding, the trial court denied resentencing on the
ground the defendant was a major participant in the kidnapping and acted
with reckless indifference to human life, based in part on the court’s belief
that the defendant possessed and fired a gun. The court of appeal reversed,
holding that “a trial court cannot deny relief in a section 1170.95 proceeding
based on findings that are inconsistent with a previous acquittal when no
evidence other than that introduced at trial is presented.” (Id. at p. 398.
Italics added.) The court remanded for a new hearing to consider whether
the prosecution proved beyond a reasonable doubt that the defendant was
ineligible for resentencing relief for reasons other than having used or
possessed a firearm. (Ibid.; see id. at pp. 416–418; see People v. Henley
(2022) 85 Cal.App.5th 1003, 1017–1020 [jury’s not true finding on the
allegation that the defendant personally used a firearm barred the court from
concluding in a section 1172.6 resentencing proceeding that she did use a
firearm].)
7 See section 12022.53, subdivision (b) [personally uses a firearm in the
commission of the crime], subdivision (c) [personally and intentionally
discharges a firearm in the commission of the crime], subdivision (d)
[personally and intentionally discharges a firearm and proximately causes
great bodily injury or death to a person other than an accomplice].)
18
Cooper is distinguishable. There, a jury’s not-guilty verdict established
that the prosecution failed to prove beyond a reasonable doubt that the
defendant possessed a firearm. Here, the jury was unable to reach a verdict
on allegations that Wilson personally used and discharged a firearm in the
commission of the crimes. A not guilty verdict precludes subsequent
prosecution on a charge; an inability to reach a decision on an enhancement
allegation does not. While at least one juror apparently had a reasonable
doubt that Wilson personally used and discharged a firearm, Wilson provides
no authority that this alone would preclude the court from deciding, for
purposes of section 1170.95, that the prosecution proved beyond a reasonable
doubt that Wilson was the actual killer. The question for the trial court was
whether the evidence, as of the time of the resentencing hearing, established
murder as now defined and beyond a reasonable doubt; it does not require the
trial court to speculate how the 2009 jury might have ultimately decided the
case. (See People v. Duchine (2021) 60 Cal.App.5th 798, 813 [“By allowing
new evidence and providing for an evidentiary hearing, the Legislature
plainly intended that the issues concerning whether the defendant was guilty
under theories of murder not previously or necessarily decided would be
resolved anew, through a factfinding process affording a degree of due process
to the petitioner.”], italics added; Former § 1170.95, subd. (d)(3) [“At the
hearing to determine whether the petitioner is entitled to relief, the burden of
proof shall be on the prosecution to prove, beyond a reasonable doubt, that
the petitioner is guilty of murder or attempted murder under California law
as amended by the changes to Section 188 or 189 made effective January 1,
2019”]; § 1172.6, subd. (d)(3) [same].)8
8 Respondent argues that Cooper is also distinguishable because, in this
case, unlike Cooper, additional evidence was presented at the evidentiary
19
B. Ineffective Assistance of Counsel
We need not decide whether counsel was ineffective for not arguing
Wilson’s youth or whether the court sufficiently considered it. Wilson’s youth
was germane to whether he acted with reckless indifference to human life,
but the court’s denial of the resentencing petition did not rely exclusively on
the theory that Wilson was a major participant who acted with such
indifference. Because we uphold the court’s order based on the trial court’s
theory that Wilson was the actual killer, any ineffectiveness of counsel for
failing to raise the issue of Wilson’s youthfulness for the major participant
theory was not prejudicial, and any shortcoming in the court’s consideration
of the issue was harmless. In short, remand for this purpose would be futile,
as it would not change the ultimate result.9
III. DISPOSITION
The order is affirmed.
hearing. As Wilson points out, however, the only evidence presented at the
hearing was Bowling’s testimony to the effect that Rauls was the shooter.
Because this further testimony did not support a conclusion that Wilson was
the shooter, it did not add to the prosecution’s evidence that the jury
considered, so it provides no basis for distinguishing Cooper. Respondent also
contends “Cooper was wrongly decided because it drew conclusive analogy to
the determination of whether to issue an order to show cause in the closed
record situation of review of a Penal Code section 1170.126 petition to
determine whether a prior offense continues to qualify as a strike.” We need
not and do not decide this issue.
9 On July 11, 2022, Wilson filed a request that we take judicial notice of
the record of his direct appeal in appeal number A118798. We deferred our
ruling pending our consideration of the merits. The unopposed request is
hereby granted.
20
_________________________
Langhorne, J. *
We concur:
_________________________
Jackson, P.J.
_________________________
Burns, J.
People v. Wilson / A163165
* Judge of the Superior Court of Napa County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
21
A163165 / People v. Wilson
Trial Court: Superior Court of Contra Costa County
Trial Judge: Hon. Mary Ann O’Malley
Counsel: John Steinberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General of California; Lance E. Winters, Chief Assistant
Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General;
Catherine A. Rivlin and Rene A. Chacon, Supervising Deputy Attorneys
General for Plaintiff and Respondent.
22