Filed 6/25/26 P. v. Fitts CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B339879
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA082591)
v.
DAVID JAMES FITTS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Charlaine F. Olmedo, Judge. Affirmed.
William G. Holzer, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Rama R. Maline,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________
David James Fitts appeals from an order denying his
petition for resentencing under Penal Code section 1172.6.1 A
jury convicted Fitts of the 1992 murder of Charles Dimmitt and
found that Fitts committed the murder during the commission of
an attempted robbery. The jury also convicted Fitts of the
attempted voluntary manslaughter of a second victim who was
present during the murder, and of the attempted robberies of
both victims. After an evidentiary hearing, the trial court found
beyond a reasonable doubt that Fitts was guilty of murder under
current law, rendering him ineligible for resentencing under
section 1172.6, because he acted with express malice or, in the
alternative, he was a major participant in the attempted
robberies and acted with reckless indifference to human life.
We conclude that substantial evidence supports the trial
court’s finding that Fitts remains guilty of murder under current
law because he was a major participant in the attempted
robberies and acted with reckless indifference to human life.
Accordingly, we affirm the order denying his petition for
resentencing. We need not address the trial court’s finding that
Fitts acted with express malice.
BACKGROUND
A. The jury convicted Fitts of murder, among other
crimes. We affirmed the judgment on direct appeal.
The Los Angeles County District Attorney charged Fitts
with the murder of Dimmitt (count 1, § 187, subd. (a)); attempted
robbery of Dimmitt (count 2, §§ 211, 664); attempted robbery of
1 Undesignated statutory references are to the Penal Code.
2
Steven Watkins (count 3); and attempted murder of Watkins
(count 4, §§ 187, subd. (a), 664).
Below, we summarize the trial evidence to the extent it is
relevant to this appeal.
1. Trial evidence
Watkins (the surviving victim) testified to the following
events on March 7, 1992: Around 2:30 a.m., he and Dimmitt, who
was his friend and neighbor, attended a party. Dimmitt left the
party around 2:45 a.m., and Watkins left around five minutes
later. On the way to his house, Watkins passed Dimmitt’s house,
where he saw Dimmitt exiting his parked car. He also saw Fitts
(then 23 years old) and another man (Casey Carroll) exit a car,
walk to a gate on the side of Dimmitt’s house, and begin “lurking”
there.2
Watkins pulled alongside Dimmitt’s car, pointed to Fitts
and Carroll, and exited his car. Watkins and Dimmitt walked to
the curb. They were unarmed.
Fitts and Carroll appeared to be urinating by Dimmitt’s
fence. When they finished, they quickly walked toward Watkins
and Dimmitt. Fitts and Carroll drew guns.
Fitts stopped and faced Watkins from a distance of six or
seven feet, while Carroll faced Dimmitt. Fitts stood closer to the
two men than Carroll did. Dimmitt asked what Fitts and Carroll
were doing by his fence, and Carroll responded, “What do you
mean what are we doing?”
2 At a separate trial, Carroll was convicted of murder and
two counts of attempted robbery. This court affirmed his
convictions. (People v. Carroll (Jan. 16, 1997, B096444) [nonpub.
opn.].) Although Carroll was not identified by name to Fitts’s
jury, we use Carroll’s name for clarity.
3
Carroll asked Watkins and Dimmitt what gang they were
affiliated with. Watkins and Dimmitt each said, “We don’t gang
bang.” Carroll said he was from the Schoolyard Crip gang.
Carroll pointed his gun at Dimmitt’s chest. Fitts pointed
his gun at Watkins, below his abdomen.3 Dimmitt said, “It
shouldn’t have to be like this.”
Carroll said, “This is a jack for your gold.” Watkins was
wearing a gold necklace and Dimmitt was wearing a gold
bracelet. Watkins began to take off his necklace, as Dimmitt
again protested that it did not “have to be like this.”
Carroll demanded the men’s gold three times. Although
Fitts was silent throughout the encounter, he and Carroll
appeared to be acting together. Fitts kept his gun drawn
throughout the encounter, which lasted about three minutes.
Eventually, Carroll raised his gun to Dimmitt’s head.
Dimmitt used his right hand to attempt to strike the gun from
Carroll’s hand.
Fitts fired the first gunshot, which struck Watkins in his
right leg. Carroll then shot Dimmitt, who fell to the ground.4
Watkins turned and ran. He heard but did not see a third
gunshot, which struck his buttocks. He did not know who fired
the shot. He then heard a fourth and final gunshot.
3 Neither Watkins nor any other witness testified, as Fitts
asserts on appeal, that Fitts held his gun in a “low ready
position.”
4 Watkins initially testified that Carroll, not Fitts, was the
first shooter. Thereafter, he repeatedly testified that Fitts shot
first. He also testified that he had identified Fitts as the first
shooter in a pretrial statement given to police within three days
after the shooting.
4
Watkins ran away, jumped fences, and ran through an
alley. As he exited the alley, the car that Fitts and Carroll had
exited passed by him, and he heard laughing and the car’s horn.5
After the car drove off, Watkins ran to a neighbor’s house, from
which an ambulance called by the neighbor transported him to a
hospital. He underwent surgery and was hospitalized for three
days.
Dimmitt died from two gunshot wounds to the back of his
chest.
During a police interview, Fitts initially denied
involvement in the attempted robberies but eventually admitted
that he was involved and that he fired one shot at a fleeing
victim.
In Fitts’s defense, his mother testified that he received
Social Security Income because he was legally blind. From
second grade to his high school graduation,6 Fitts was enrolled in
special education classes because of his poor vision and his
academic level (he was “slow” and “couldn’t read”).
2. Judgment
The jury was instructed on aiding and abetting and first
degree felony murder based on attempted robbery. The People
argued that Fitts was guilty of first degree felony murder because
he aided and abetted Carroll in attempting to rob Dimmitt and
Watkins, and because Carroll killed Dimmitt during the
5 No evidence identified Fitts as the driver or as the source
of the laughter that Watkins heard from the car.
6 Outside the presence of the jury, Fitts’s mother testified
that he graduated from high school at age 19 (four years before
he committed the offenses at age 23).
5
attempted robberies. Fitts argued that he was misidentified or,
in the alternative, that he was guilty only of assault with a
deadly weapon (a lesser included offense of the attempted murder
of Watkins charged in count 4) because he did not know that
Carroll intended to rob the victims and he fired only one,
accidental shot at Watkins.
The jury convicted Fitts of the first degree murder of
Dimmitt and found true the allegations that Fitts committed the
murder while committing attempted robbery and that a principal
was armed with a firearm. The jury also convicted Fitts of the
attempted second degree robberies of Dimmitt and Watkins and
the attempted voluntary manslaughter of Watkins (another
lesser included offense of the attempted murder charge), and
found true associated firearm and great bodily injury allegations.
The trial court sentenced Fitts to imprisonment for life
without possibility of parole, plus 15 years and six months. On
Fitts’s direct appeal, we affirmed the judgment as modified by
staying the sentence on count 2 (attempted robbery of Dimmitt)
and striking the great bodily injury enhancement to count 4
(attempted voluntary manslaughter of Watkins), which
modifications reduced the determinate term of Fitts’s sentence to
11 years and six months.7 (People v. Fitts (Jan. 29, 1999,
B103607) [nonpub. opn.] at pp. 11-12.)
7 In August 2025 (during the pendency of this appeal),
Governor Gavin Newsom commuted Fitts’s sentence to 31 years
to life.
6
B. Fitts petitioned for resentencing under section
1172.6. The trial court denied the petition, finding
beyond a reasonable doubt that Fitts acted with
express malice or that he was a major participant in
the attempted robberies and acted with reckless
indifference to human life.
Effective 2019, 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 narrowed the
felony-murder rule. (People v. Patton (2025) 17 Cal.5th 549, 558
(Patton); People v. Gentile (2020) 10 Cal.5th 830, 842-843.)
Section 188, subdivision (a)(3), now prohibits imputing malice
based solely on one’s participation in a crime and requires proof
of malice to convict a principal of murder, except under the
revised felony-murder rule set forth in section 189, subdivision
(e). “If a defendant was not the actual killer or an aider and
abettor acting with intent to kill, the [felony-murder] statute now
requires that the defendant be a major participant in the felony
who acted with reckless indifference to human life.” (People v.
Emanuel (2025) 17 Cal.5th 867, 875 (Emanuel).)
To provide relief to those with existing murder convictions
based on now-invalid theories, the Legislature created a path to
resentencing. (§ 1172.6, subd. (a); Stats. 2021, ch. 551, § 1.)
“Petitioners seeking relief under section 1172.6 must, first, file a
facially valid petition that states the statutory requirements for
relief (id., subd. (b)), and second, make a ‘prima facie showing’
(id., subd. (c)), before a court must issue an order to show cause
and hold an evidentiary hearing on the ultimate question of
resentencing . . . (id., subd. (d)).” (Patton, supra, 17 Cal.5th at p.
556.)
7
In July 2022, Fitts petitioned for resentencing under
section 1172.6. The People conceded that Fitts made a prima
facie showing.
The trial court held an evidentiary hearing, at which the
parties and the court relied on the trial record. The People
argued that Fitts remained guilty of murder under two still-valid
theories: (1) the revised felony-murder rule; and (2) direct aiding
and abetting with express or implied malice. Fitts disputed both
theories.
The trial court denied the petition on the following grounds:
“[A]cting as an independent fact finder, the Court finds . . . by
proof beyond a reasonable doubt, that the Petitioner is a direct
aider and abettor who harbored express malice. Alternatively, as
an independent fact finder, the Court finds beyond a reasonable
doubt, that the Petitioner was a major participant who acted with
reckless indifference to human life.”
Fitts filed a timely notice of appeal.
DISCUSSION
A. Standard of review
“We review a resentencing court’s denial order following a
section 1172.6 evidentiary hearing for substantial evidence.”
(People v. Player (2026) 119 Cal.App.5th 931, 963 (Player).)
“Under that standard, ‘we review 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 — from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.’
[Citation.] ‘We resolve all evidentiary conflicts and questions of
credibility in favor of the judgment. [Citation.] We cannot
8
reweigh the evidence or reassess witness credibility on our own.’ ”
(Ibid.) Rather than limit our review to the trier of fact’s express
findings, we “ ‘ “ ‘presume[] in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.’ ” ’ ” (People v. Morales (2020) 10 Cal.5th 76, 88
(Morales), italics added.) “ ‘ “A reversal for insufficient evidence
‘is unwarranted unless it appears “that upon no hypothesis
whatever is there sufficient substantial evidence to support” ’ the
[fact finder]’s verdict.” ’ ” (People v. Diaz (2026) 118 Cal.App.5th
545, 558 (Diaz).)
B. Substantial evidence supports the trial court’s
finding that Fitts is guilty of murder under the
revised felony-murder rule.
As noted, “[i]f a defendant was not the actual killer or an
aider and abettor acting with intent to kill, the [felony-murder]
statute now requires that the defendant be a major participant in
the felony who acted with reckless indifference to human life.”
(Emanuel, supra, 17 Cal.5th at p. 875.) We consider the
sufficiency of the evidence supporting the trial court’s major-
participant and reckless-indifference findings in turn.
1. Substantial evidence supports the trial court’s
finding that Fitts was a major participant in the
attempted robberies.
People v. Banks (2015) 61 Cal.4th 788, 803 (Banks),
“identified a list of considerations relevant to the major
participant prong.” (Emanuel, supra, 17 Cal.5th at p. 883.) The
Banks factors are: “ ‘What role did the defendant have in
planning the criminal enterprise that led to one or more deaths?
What role did the defendant have in supplying or using lethal
9
weapons? What awareness did the defendant have of particular
dangers posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants? Was the
defendant present at the scene of the killing, in a position to
facilitate or prevent the actual murder, and did his or her own
actions or inaction play a particular role in the death? What did
the defendant do after lethal force was used?’ ” (People v. Strong
(2022) 13 Cal.5th 698, 706 (Strong).) “[N]one of these
considerations is dispositive. Rather, ‘[a]ll may be weighed in
determining the ultimate question, whether the defendant’s
participation “in criminal activities known to carry a grave risk of
death” [citation] was sufficiently significant to be considered
“major” [citations].’ ” (Ibid.)
Here, the first Banks factor (the defendant’s role in
planning the fatal criminal enterprise) does not support a major-
participant finding because no evidence indicated that Fitts
planned the attempted robberies.
However, the second Banks factor (the defendant’s role in
supplying or using lethal weapons) strongly supports the trial
court’s finding that Fitts was a major participant in the
attempted robberies. Fitts drew his gun while walking toward
the victims, before the victims did anything other than observe
Fitts and Carroll urinating by Dimmitt’s fence. Fitts aimed his
gun below Watkins’s abdomen. Fitts continued aiming his gun at
Watkins for about three minutes, even as Carroll repeatedly
demanded the victims’ gold jewelry and eventually brought his
gun from Dimmitt’s chest to his head. Moreover, the trial court
reasonably could have credited Watkins’s testimony that Fitts
fired the first gunshot, i.e., that Fitts shot Watkins before Carroll
10
shot Dimmitt.8 Finally, the evidence reasonably supported the
trial court’s express finding that Fitts fired another shot, which
struck Watkins’s buttocks as he fled. Thus, Fitts played a major
role in using lethal weapons during the attempted robberies.
The third Banks factor (the defendant’s awareness of
particular dangers posed by the nature of the crime, weapons
used, or past experience or conduct of the other participants) has
little relevance on this record. No evidence indicated that Fitts
was aware of any past experience or conduct on Carroll’s part
that posed particular dangers. Although no evidence specifically
addressed Fitts’s awareness of the dangers posed by the firearms
used and by the nature of the attempted robberies at gunpoint,
the trial court reasonably could have inferred from the obvious
nature of those dangers that Fitts was aware of them.
The fourth Banks factor (whether the defendant was
present at the scene of the killing, in a position to facilitate or
prevent the actual murder, and whether his conduct played a
particular role in the death) strongly supports the trial court’s
finding that Fitts was a major participant in the attempted
robberies. Fitts was present before and during the killing. He
was in a position to prevent the murder by dissuading Carroll
from demanding the victims’ gold jewelry and convincing him to
leave. Instead, he facilitated the murder by holding Watkins at
gunpoint and firing the first shot into Watkins’s leg, restraining
8 The trial court did not expressly find that Fitts fired the
first gunshot, because it found that Fitts was guilty of murder
under current law regardless of whether he shot first or only
after Carroll. We presume that Fitts shot first because the trial
court reasonably could have made that finding. (See Morales,
supra, 10 Cal.5th at p. 88; Diaz, supra, 118 Cal.App.5th at p.
558.)
11
Watkins from resisting the attempted robberies. The trial court
reasonably could have found that Fitts’s conduct in firing the first
gunshot played a particular role in Dimmitt’s death by escalating
the confrontation to the level of deadly force, encouraging Carroll
to fatally shoot Dimmitt.
The final Banks factor (the defendant’s conduct after the
use of lethal force) also supports the trial court’s major-
participant finding. As noted, after both Fitts and Carroll used
lethal force by firing the initial shots into Watkins and Dimmitt,
respectively, Fitts fired another shot that struck Watkins as he
fled. Further, the evidence reasonably supported the trial court’s
finding that after the shooting, Fitts fled the scene with Carroll
in the car that they had exited earlier, leaving Dimmitt on the
ground where he had fallen after being shot, without rendering or
summoning aid. No evidence supports Fitts’s assertion that he
believed aid would be futile. Indeed, as Fitts himself observes, “it
is unclear if [he] knew the state of Dimmitt’s injuries.” The
evidence supported the trial court’s finding that Fitts was
unconcerned whether Dimmitt was dying or merely injured.
Considering the Banks factors on balance, we conclude that
substantial evidence supports the trial court’s finding that Fitts
was a major participant in the attempted robberies.
2. Substantial evidence supports the trial court’s
finding that Fitts acted with reckless indifference to
human life.
People v. Clark (2016) 63 Cal.4th 522, 617 (Clark), “set out
a nonexhaustive list of factors for courts to consider when
determining whether reckless indifference existed.” (Diaz, supra,
118 Cal.App.5th at p. 558.) The Clark factors overlap with the
Banks factors. (Strong, supra, 13 Cal.5th at p. 706.) The Clark
12
factors are “ ‘use of or awareness of the presence of a weapon or
weapons, physical presence at the scene and opportunity to
restrain confederates or aid victims, the duration of the crime,
knowledge of any threat the confederates might represent, and
efforts taken to minimize risks.’ ” (Emanuel, supra, 17 Cal.5th at
p. 884.) “ ‘ “[N]o one of these considerations is necessary, nor is
any one of them necessarily sufficient.” ’ ” (Id. at p. 885.)
“ ‘Courts of Appeal have recognized that “a defendant’s
youth is a[nother] relevant factor in determining whether the
defendant acted with reckless indifference to human life.” ’ ”
(Diaz, supra, 118 Cal.App.5th at p. 558.) “This is because the
‘ “hallmark features” of youth,’ including ‘ “immaturity,
impetuosity, and failure to appreciate risks and consequences,” ’
bear upon a youthful offender’s culpability.” (Id. at p. 559.)
Here, for substantially the same reasons underlying our
conclusion regarding the trial court’s major-participant finding,
we conclude that substantial evidence supported the trial court’s
finding that Fitts acted with reckless indifference to human life.
(See Strong, supra, 13 Cal.5th at p. 706 [“the major participant
and reckless indifference elements ‘ “significantly overlap” ’ ”].)
The first and second Clark factors (the defendant’s use of
weapons and the defendant’s opportunity, being present at the
scene, to restrain confederates or aid victims) strongly support
the trial court’s reckless-indifference finding, for the same
reasons we explained regarding the second and fourth Banks
factors (the defendant’s role in using lethal weapons and the
defendant’s position, being present, to facilitate or prevent the
murder). Fitts used his gun to restrain Watkins throughout the
encounter, fired the first gunshot, and fired another shot that
13
struck Watkins as he fled. He did not restrain Carroll or attempt
to aid the victims.
The third Clark factor (the duration of the crime) also
supports the trial court’s reckless-indifference finding. The
attempted robberies took place over approximately three
minutes. Three minutes provided Fitts sufficient time to
appreciate the risks that the attempted robberies at gunpoint
posed to the victim’s lives. Fitts continued pointing his gun at
Watkins throughout the three minutes, even as Carroll
repeatedly demanded the victims’ gold jewelry and Dimmitt
repeatedly protested that it did not need to be that way, placing
Fitts on notice that Dimmitt might (as he ultimately did)
physically resist.
The fourth Clark factor (the defendant’s knowledge of any
threat his confederates might represent) has little relevance on
this record, for the same reasons we explained regarding the
third Banks factor (the defendant’s awareness of particular
dangers posed by the other participants’ past experience or
conduct, the nature of the crime, or the weapons used).
The final Clark factor (the defendant’s efforts to minimize
risks) strongly supports the trial court’s finding that Fitts acted
with reckless indifference to human life. Fitts could have
minimized the risks by dissuading Carroll from demanding the
victims’ gold jewelry and convincing him to leave. Instead, he
increased the risks by holding Watkins at gunpoint for three
minutes and firing the first gunshot. Fitts’s shooting of Watkins
escalated the confrontation in a manner that posed an obvious
danger of encouraging Carroll to fatally shoot Dimmitt. Indeed,
Fitts’s conduct posed a risk of motivating Carroll to fatally shoot
both Dimmitt and Watkins, to eliminate both witnesses to the
14
shooting that Fitts initiated. Fitts further increased that risk by
firing another shot that struck Watkins as he fled, which could
have led Carroll to join Fitts in shooting at Watkins.
Considering the Clark factors on balance, we conclude that
substantial evidence supports the trial court’s finding that Fitts
acted with reckless indifference to human life.
That Fitts was 23 years old at the time of the offenses does
not override the balance of the Clark factors. At 23, Fitts was a
young adult, not a minor. (See People v. Oliver (2023) 90
Cal.App.5th 466, 489 [“[Defendant] was 23 at the time of the
crime. Presumably, the presumption of immaturity weakens as a
defendant approaches 26”].) Fitts presented no evidence
suggesting that his age precluded his understanding of the risks
inherent in robbing two men at gunpoint, escalating the
confrontation by firing the first gunshot, firing another shot into
a fleeing victim, and leaving the other gunshot victim unaided
where he fell on the ground. (Cf. People v. Mitchell (2022) 81
Cal.App.5th 575, 595 [“Youth can distort risk calculations. Yet
every 18 year old understands bullet wounds require attention.
The fact of youth cannot overwhelm all other factors”].) Thus, the
trial court reasonably found that Fitts’s age did not prevent him
from understanding the seriousness of his actions.9
9 The 2025 order commuting Fitts’s sentence stated that
the Governor considered Fitts’s youth at the time of his offenses,
among other factors. As the order further stated, the Governor’s
act of clemency did not minimize or forgive Fitts’s serious
criminal conduct. (See Santos v. Brown (2015) 238 Cal.App.4th
398, 413 [“Commutation is a reduction in punishment; a pardon
is the remission of guilt”]; People v. Vasquez (2001) 25 Cal.4th
1225, 1230 [“ ‘action in mitigation of the defendant’s punishment
15
Fitts argues that his “diminished cognitive abilities”
impaired his appreciation of the risks. However, he cites no
evidence other than his mother’s testimony that he was enrolled
in special education classes from second grade to his high school
graduation (at age 19) because he was legally blind and “slow.”
That testimony did not address Fitts’s ability at age 23 to
appreciate the risks to human life posed by attempting to rob two
victims at gunpoint and initiating a shooting. Nor did the
testimony compel the trial court to find that Fitts did not
appreciate the risks. “We cannot reweigh the evidence . . . .”
(Player, supra, 119 Cal.App.5th at p. 963.)
In short, we conclude that substantial evidence supports
the trial court’s finding that Fitts is guilty of murder under
current law because he was a major participant in the attempted
robberies and acted with reckless indifference to human life.
Accordingly, we affirm the trial court’s denial of Fitts’s petition
for resentencing.
should not affect the fact that his guilt has been finally
determined according to law’ ”].)
16
DISPOSITION
The order denying Fitts’s petition for resentencing is
affirmed.
NOT TO BE PUBLISHED
M. KIM, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
17