P. v. Mitchell CA5

Filed 10/27/26 P. v. Mitchell CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,
F089633
Plaintiff and Respondent,
(Super. Ct. No. SC052002A)
v.

RICKY MARSDEN MITCHELL, OPINION
Defendant and Appellant.

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Chad A. Louie,
Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, and Ricky
Marsden Mitchell, in propria persona, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-

* Before Levy, Acting P. J., Franson, J. and Harrell, J.
INTRODUCTION
On the morning of October 5, 1992, officers found the body of Verlin Mitchell
(Mitchell) inside his double-wide trailer that was located inside a gated mobile home
community in Bakersfield. He was tied up and lying face-down on his bed. He had a
broken neck and gunshot wounds to the head. Mitchell’s trailer had been burglarized and
the interior ransacked. Both of his vehicles—a Chevrolet Blazer Sport Utility Vehicle
(SUV) and a large recreational vehicle (RV)—were gone.
Later that same day, officers in New Mexico pulled over Mitchell’s stolen SUV.
The occupants were appellant and defendant Ricky Marsden Mitchell (defendant), who
was 26 years old at the time, and three minor boys: Michael G., who was 16 years old;
Charles L., who was also 16 years old and Michael’s school friend; and Larry F.,
Charles’s brother, who was 15 years old.1
Charles and Larry (together, the brothers) lived with their family in the same
mobile home park as Mitchell. Defendant lived in the trailer next to the brothers.
The investigation revealed that in the days before the murder, defendant and the
three minors broke into several trailers in the mobile home park, based on their
knowledge of which residents were not home on particular days. They were in the midst
of burglarizing and ransacking Mitchell’s trailer when he unexpectedly drove up in his
RV. They ran out of the trailer’s back door with stolen property before Mitchell entered
the trailer, and could have escaped. Once outside, however, defendant urged them to stay
and confront Mitchell so they could get the keys to his SUV, and they agreed.

1 After notice to the parties, and without objection, we take judicial notice of the
record before this court, including this court’s nonpublished opinion, in defendant’s prior
appeal, People v. Mitchell (Jan. 4, 2023, F081153) [nonpub. opn.] (Mitchell I), where this
court remanded the matter for the trial court to conduct an evidentiary hearing on his
petition for resentencing.
Defendant and the victim have the same last name but they were not related. We
refer to the victim by his last name.

2.
Defendant and Michael armed themselves with rifles they had already stolen, and
defendant quickly planned how they would confront Mitchell. They surprised Mitchell at
gunpoint when he entered the trailer, and defendant instructed Michael how to tie up the
victim. As the incident progressed, defendant told Michael that he had to kill Mitchell,
instructed Michael how to tape a pillow around the rifle barrel to act as a muzzle, he gave
ammunition to Michael, and he was present when Michael loaded his rifle and shot
Mitchell twice in the head. The suspects loaded the stolen property into Mitchell’s
two vehicles and left. They later abandoned the RV and kept the SUV. They were
heading to North Carolina, where defendant previously lived, when they were arrested.
Michael pleaded no contest to first degree murder and admitted the burglary
special circumstance and firearm enhancement, and also pleaded no contest to two counts
of burglary and two counts of auto theft. He was found not amenable to the treatment
and training provided by the California Youth Authority (later renamed the Division of
Juvenile Justice), and sentenced to life in prison without the possibility of parole (LWOP)
plus five years for the firearm enhancement. (People v. Michael [G.] (Jan. 16, 2020,
F075948) [nonpub. opn.].)2
Charles and Larry faced charges in juvenile court arising from the burglary and
murder, and were placed in the Division of Juvenile Justice.
Defendant’s Plea and Sentence
Defendant, who was an adult at the time of the murder, was charged with
first degree premeditated murder with the burglary-murder special circumstance and
firearm enhancements, two counts of burglary, and two counts of vehicle theft.

2 On appeal, this court rejected Michael’s argument that the trial court abused its
discretion and failed to sufficiently consider youth-related factors when it imposed the
LWOP term. We remanded the matter for the trial court to consider whether to dismiss
the firearm enhancement after statutory amendments, and otherwise affirmed. (People v.
Michael [G.], supra, F075948.)

3.
In 1993, after the preliminary hearing, defendant pleaded no contest to first degree
premeditated murder and admitted the special circumstance. Defendant entered his plea
on the condition the prosecution would not seek the death penalty, he would receive the
indicated sentence of an LWOP term, and the parties stipulated defendant did not shoot
the victim. Defendant was sentenced to the LWOP term. This court affirmed the
judgment on appeal. (People v. Mitchell (Dec. 14, 1994, F020913) [nonpub. opn.].)
Defendant’s Petition for Resentencing
This appeal is from the trial court’s denial of defendant’s petition for resentencing
of his first degree murder conviction that was filed pursuant to Penal Code3
section 1172.6. The trial court conducted an evidentiary hearing, where both parties
called witnesses and agreed the trial court could consider certain evidence in a redacted
preliminary hearing transcript. Defendant did not testify at the hearing.
After considering the evidence, the trial court held the prosecution proved beyond
a reasonable doubt that defendant was still guilty of first degree murder because he acted
with the intent to kill the victim, and he was also a major participant who acted with
reckless indifference to life.
On appeal, appellant’s counsel filed a brief with this court pursuant to People v.
Delgadillo (2022) 14 Cal.5th 216, which summarized the facts and procedural history
with citations to the record, raised no issues, and asked this court to independently review
the record.
Defendant filed a supplemental “declaration” and asserted he did not act with the
intent to kill, the crimes were instigated by Michael and the brothers, and those
three minors were responsible for the trailer burglaries that led to the murder.
We review defendant’s contentions and affirm the trial court’s denial of the
petition after the evidentiary hearing.

3 All further statutory citations are to the Penal Code unless otherwise indicated.

4.
FACTS
The following factual statement is based on the evidence relied on by the trial
court at the section 1172.6 evidentiary hearing when it denied defendant’s petition for
resentencing—the testimony of four witnesses who appeared at the evidentiary hearing,
and the parties’ redacted transcript of defendant’s 1992 preliminary hearing that was
introduced as an exhibit, and omitted certain hearsay evidence that had been introduced at
the preliminary hearing.4
Defendant Meets the Three Minors5
The family of Charles and Larry lived in a trailer in the same gated mobile home
community as Mitchell. Defendant’s sister lived in the trailer next to the brothers. About
two months before the murder, defendant moved in with his sister and met Larry
Michael testified that prior to committing the offenses in this case, he had already
committed unrelated burglaries, assaults, and other crimes, and he was placed in a

4 As will be discussed below, section 1172.6, subdivision (d)(3) states that at the
evidentiary hearing on the petition for resentencing, “hearsay evidence that was admitted
in a preliminary hearing pursuant to subdivision (b) of [s]ection 872 shall be excluded
from the hearing as hearsay, unless the evidence is admissible pursuant to another
exception to the hearsay rule.” (§ 1172.6, subd. (d)(3).) Section 872, subdivision (b)
states the trial court’s probable cause finding at a preliminary hearing may be based “in
whole or in part upon the sworn testimony of a law enforcement officer” relating hearsay
statements of declarants.
In ruling on defendant’s petition after the evidentiary hearing in this case, the trial
court stated it did not consider any hearsay evidence that was admitted at the preliminary
hearing pursuant to section 872, subdivision (b).
5 Michael testified for the prosecution at defendant’s section 1172.6 evidentiary
hearing in 2025, under a grant of use immunity. Michael was in prison and continued to
serve his LWOP sentence for murder.
Larry also testified for the prosecution at the evidentiary hearing under a grant of
use immunity. Larry had been charged in juvenile court with offenses arising from the
burglary and murder, received a juvenile commitment, and paroled. He was an adult and
no longer in custody.

5.
youthful offender custodial program. In mid-1992, Michael was released from a youth
detention facility to his parents’ custody in Bakersfield.
In September 1992, Michael ran away from his parents’ home, which was not in
the mobile home community. Michael met up with Charles and Larry.
At some point in September 1992, the brothers introduced Michael to defendant.
Defendant told them that he was 26 years old and from North Carolina.
The Trailer Burglaries
Michael testified the three minors looked up to defendant because he was an adult.
Michael and the brothers wanted to leave Bakersfield but they needed money. Defendant
said there would be housing and work for them in North Carolina or South Carolina.
According to Larry, defendant said they should go to North Carolina, and the others
agreed.
Michael agreed with defendant and the brothers to break into trailers to find “food,
clothing, keys, jewelry, money, anything that we could possibly utilize to leave
Bakersfield,” including transportation.
Michael and Larry testified that starting in late September 1992, the group broke
into four or five trailers over five or six days. Michael testified defendant and the
brothers seemed to know which trailers to break into and what residents would not be
home. Michael followed their lead, and they were not worried that the residents would
show up while they were inside.
As they committed each burglary, they would stay inside the trailer for several
hours, ransack the contents, eat and shower, and then leave. Defendant told them to look
for keys for cars that were parked by the trailers, but they did not find any keys.
Michael testified they agreed to avoid being spotted because “it was where they all
lived. So if anyone saw them, they would know who they were and report them to their
mother[] or anything like that.”

6.
Michael testified they discussed what to do if someone caught them while they
were inside a trailer, and “we were told that we were going to possibly kill them .…”
Michael could not remember who made this statement, but defendant was present when
they discussed this topic.
Michael was drinking alcohol, and using heroin and marijuana every day, when
the group committed the trailer burglaries.
Larry testified that during one of the burglaries, they stole a .22-caliber sawed-off
rifle, but they did not have the rifle’s clip, magazine, or ammunition.
Friday, October 2, 1993; Mitchell Leaves for the Weekend
In 1992, Mitchell was 62 years old and retired. He lived in a double-wide trailer
located in space No. 212. Mitchell parked his SUV and large RV next to his trailer.
Mitchell usually kept the keys to both vehicles with him.
P.H.6 testified she was in a relationship with Mitchell and they lived together for
some time. In September 1992, P.H. moved out of his trailer. They remained friends and
continued to do things together. Mitchell lived in the trailer by himself after they
separated.
On Friday, October 2, 1992, Mitchell picked up P.H. from work in his SUV. They
had planned a camping trip for that weekend. Mitchell drove to his trailer and parked his
SUV on the adjacent cement pad. Mitchell and P.H. loaded their supplies into his RV
and left on their trip in that RV, leaving the SUV parked next to his trailer.
Saturday, October 3, 1992; M.M. Meets Defendant and the Minors in P.W.’s Trailer
M.M. was 16 years old and lived with her father at the same mobile home
community, and testified at defendant’s preliminary hearing.7 M.M. testified that around
7:45 p.m. on Saturday, October 3, 1992, she went inside a trailer and saw defendant,

6 P.H. testified at the preliminary hearing.
7 When M.M. testified at the preliminary hearing in 1992, the prosecutor stated that
charges were not going to be filed against her.

7.
Michael, Charles, and Larry. One person in this group gave M.M. some jewelry and
CDs.
M.M. knew that defendant, Michael, Charles, and Larry had been talking about
leaving Bakersfield, and they discussed it again in the trailer. M.M. mentioned that she
might go with them to “Carolina.”
When M.M. testified at the preliminary hearing, she admitted that she was
interviewed by a detective about this incident, pointed out the trailer where she talked
with the four suspects, and claimed she could not remember what she told the detective.
M.M.’s Prior Statements
Detective Jeffrey Sivesand testified at the preliminary hearing that he interviewed
M.M. in October 1992, and recounted M.M.’s statements. M.M. said defendant took her
into the trailer located in space No. 120. Michael, Charles, and Larry were there. She
knew Michael was called “Stoner.”8
M.M. said she realized a burglary was going on once she was inside the trailer.
Charles and Larry gave her jewelry and CDs, which she later turned over to the police.
M.M. said Michael produced a hand grenade, along with a “short” rifle that he pulled out
of its case. Michael gave the hand grenade to Larry so he could show it to M.M.
M.M. said defendant intended to break into another trailer to get a car. Defendant
said that if someone saw him, and saw the others who were with him, “they would have
to kill” that person “because they could identify them at a later time.” M.M. did not
believe they were serious and thought they were talking “big” to impress her.9

8 As will be discussed below, P.W. testified her trailer in space No. 120 was
burglarized that same weekend.
9 Proposition 115 was enacted in 1990. It added subdivision (b) to section 872 to
permit the trial court to make the probable cause finding at the preliminary hearing
“based in whole or in part upon the sworn testimony of a law enforcement officer or
honorably retired law enforcement officer” relating out-of-court statements by crime

8.
victims or witnesses. (§ 872, subd. (b); Walker v. Superior Court (2021) 12 Cal.5th 177,
197; Tu v. Superior Court (1992) 5 Cal.App.4th 1617, 1621.)
At the beginning of defendant’s preliminary hearing in 1992, defense counsel
made a standing objection to any hearsay that would be admitted pursuant to the
provisions of Proposition 115 as violating defendant’s constitutional rights.
When Sivesand testified at the preliminary hearing, defense counsel objected to
the prosecution’s questions about his interview with M.M. The trial court overruled the
objection and held “the statements from her will be admissible as exceptions to the
hearsay [rule] prior to Prop[osition] 115.” Sivesand then testified as set forth above.
In making this ruling at the preliminary hearing, the trial court presumably relied
upon the prior inconsistent statement exception to the hearsay rule that is independent of
section 872, subdivision (b). “ ‘A statement by a witness that is inconsistent with his or
her trial testimony is admissible to establish the truth of the matter asserted in the
statement under the conditions set forth in Evidence Code sections 1235 and 770.’
[Citation.] Those statutes … provide for the admission against a hearsay challenge of a
prior statement by a witness ‘if the statement is inconsistent with his [or her] testimony at
the hearing and is offered in compliance with [s]ection 770.’ [Citation.] Under Evidence
Code section 770, prior inconsistent statements are admissible only if: ‘(a) The witness
was so examined while testifying as to give him [or her] an opportunity to explain or to
deny the statement; or [¶] (b) The witness has not been excused from giving further
testimony in the action.’ ” (People v. Sapp (2003) 31 Cal.4th 240, 296.)
“ ‘Normally, the testimony of a witness that he or she does not remember an event
is not inconsistent with that witness’s prior statement describing the event. [Citation.]
However, … [w]hen a witness’s claim of lack of memory amounts to deliberate evasion,
inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record
for concluding that the witness’s “I don’t remember” statements are evasive and
untruthful, admission of his or her prior statements is proper.’ ” (People v. Ledesma
(2006) 39 Cal.4th 641, 711–712.) The requisite finding may be implied from the trial
court’s ruling. (Id. at p. 712.)
At defendant’s section 1172.6 evidentiary hearing in 2025, defense counsel
objected to the trial court’s consideration of any hearsay evidence in the preliminary
hearing transcript that was admitted under section 872, subdivision (b). The prosecutor
agreed hearsay admitted at the preliminary hearing under section 872, subdivision (b)
was inadmissible for purposes of the evidentiary hearing. (§ 1172.6, subd. (d)(3)).
However, the prosecutor argued other statements in the preliminary hearing
transcript were separately admissible under other hearsay exceptions, and cited M.M.’s
testimony, and Sivesand’s testimony about her prior statements. The trial court directed
the parties to meet and confer as to what portions of the preliminary hearing transcript
would be admissible for the evidentiary hearing.

9.
BURGLARY OF MITCHELL’S TRAILER
Sunday, October 4, 1992
On Sunday, October 4, 1992, defendant, Michael, and the brothers burglarized
Mitchell’s trailer. The trailer had a fenced-in backyard with a gate. Michael used heroin
earlier that day.
Michael entered Mitchell’s trailer by crawling through the bathroom window. No
one was home. Michael opened the trailer’s sliding glass door into the backyard, and
defendant, Charles and Larry joined him inside.
Michael testified he did not know anything about the trailer’s resident. Once they
were in Mitchell’s trailer, defendant said he had the same middle and last names as the
resident. Defendant gave Michael the impression that he knew Mitchell, and that
Mitchell might be defendant’s father.10
Mitchell’s SUV was parked by the trailer. Michael used a screwdriver to break
the driver’s side window on the SUV, but he did not find the vehicle’s keys.
Michael testified they ransacked Mitchell’s trailer, ate his food, drank his alcohol,
and even used his clippers to cut their hair. Defendant told Michael to look through the
trailer for the keys to the SUV but Michael could not find them.
The group already had the .22-caliber sawed-off rifle that lacked a clip and
ammunition, that they stole from another trailer. As they ransacked Mitchell’s property,

The parties subsequently stipulated that for purposes of the evidentiary hearing,
the trial court could consider a redacted preliminary hearing transcript that excluded
hearsay previously admitted under section 872, subdivision (b). This redacted transcript
included both M.M.’s testimony, and Sivesand’s testimony about her prior inconsistent
statements. In his closing argument at the evidentiary hearing, the prosecutor argued,
without objection, that defendant acted with the intent to kill and relied on M.M.’s prior
inconsistent statement, that defendant said “they had to kill anyone who saw them and
kill anyone who could possibly identify them .…”
10 As previously noted, defendant and Mitchell were not related. According to the
record herein, defendant’s father died in 1988.

10.
they found a .22-caliber pump-action long rifle, ammunition, and an axe. Larry testified
he was instructed to hold both rifles while the others continued to ransack Mitchell’s
trailer.
As with their prior burglaries, the group was not worried the trailer’s resident
would show up or that they would be caught, and they stayed in the trailer for several
hours to hang out. Michael used heroin again.
Mitchell Returns to His Trailer
Mitchell and P.H. returned from their camping trip around 5:30 p.m. on Sunday,
October 4, 1992. Mitchell dropped off P.H. at her son’s house. Mitchell and P.H. agreed
he would call her later that evening, and he would pick her up on Monday morning and
drive her to work. Mitchell drove away in the RV, and P.H. believed he was going to his
trailer.
Larry testified he was inside Mitchell’s trailer when he heard a “rumble” sound.
He looked outside and saw Mitchell driving up in the RV. Michael also saw the RV
arrive. Mitchell got out of his RV and appeared to notice the window on his SUV was
broken.
Defendant and the Minors Decide to Confront Mitchell
Michael testified that when they realized Mitchell had returned, everyone grabbed
items from the trailer, left through the sliding glass door, and went into the trailer’s
backyard.
Michael and the brothers wanted to immediately leave. Michael testified
defendant wanted to stay, and defendant and Michael argued about what to do.
Defendant said they should stay because this was “the best opportunity to get a vehicle,”
since Mitchell likely had the keys to the SUV.
Michael testified they decided to stay at the trailer instead of running away, “to
basically hold [Mitchell] up, take his wallet, take his keys.”

11.
Defendant and Michael returned inside the trailer, and each was holding one of the
.22-caliber rifles. Defendant told Michael to stand by the trailer’s front door, and close
the door once Mitchell walked in. Michael possessed the unloaded .22-caliber sawed-off
rifle. Defendant was hiding behind the kitchen counter, and possessed the .22 caliber
pump-action long rifle they had just found. Michael testified Charles and Larry stayed in
the backyard.
Mitchell entered his trailer through the front door. Michael immediately closed
the door behind him and Mitchell tried to reach for a telephone. Both defendant and
Michael aimed their rifles at Mitchell and told him not to move.
The sliding glass door to the backyard was open. Either defendant or Michael told
the brothers to get some rope so they could tie up Mitchell.
Michael testified they kept their guns aimed at Mitchell, and either Charles or
Larry arrived with rope. Defendant instructed Michael, and either Charles or Larry, how
to tie up Mitchell. Michael kept Mitchell in the living room and tied his hands, and then
defendant, Michael, and Charles moved him into the bedroom. Defendant gave them
more instructions in the bedroom, and Michael and Charles tied up defendant’s legs and
put him on the bed. Mitchell started to plead for his life.
Michael testified that at some point, they emptied Mitchell’s pockets, took his
wallet, and found the keys to both his RV and SUV. Michael could not remember who
took the items out of Mitchell’s pockets.
MURDER OF MITCHELL
Michael Attacks Mitchell with the Axe
Defendant, Michael, and Charles left Mitchell tied up in the bedroom. They went
into the living room and Larry was there. Michael did not remember “exactly what was
said, but it was said that [Mitchell] either had to be knocked out or killed.” Larry gave
Michael the axe they had just found, and someone told Michael to knock out Mitchell.

12.
Michael testified he did not intend to kill Mitchell with the axe and only wanted to
knock him out so they could leave. However, Michael admitted he went into the
bedroom, pulled blankets over Mitchell’s head, and hit Mitchell “multiple times in the
head, upper torso area with the axe and axe handle.”
When Michael thought Mitchell was unconscious, he went to the living room.
Defendant and the brothers were still there. Defendant was still in possession of the
pump-action rifle. They agreed they would steal both vehicles and leave. Defendant,
Michael, and the brothers grabbed more property from the trailer, and put the stolen items
into Mitchell’s two vehicles.
Defendant Tells Michael to Shoot Mitchell
Michael testified he went back to the bedroom to steal more items. He discovered
Mitchell was conscious, halfway off the bed, and moving his hands.
Michael ran to the living room and told the others that “the old guy is not dead.
He is still alive, and … he is still moving. He is still conscious. He is still awake.”
Michael testified there was “pandemonium” when he told them. Defendant and
Michael went to the bedroom. Defendant held the pump-action rifle, and Michael had the
unloaded sawed-off rifle. Mitchell was partially off the bed and struggling with the rope.
Michael testified defendant said “that it had to be done. It is either … [Mitchell]
or your family.” Defendant made this statement while he was holding the pump-action
rifle so that it was pointed in Michael’s direction. Michael knew defendant’s rifle was
loaded. Michael believed defendant would shoot him and then go after his family if he
did not kill Mitchell, but admitted he never told defendant anything about his family.
Michael testified defendant instructed him “how to wrap pillows around the
sawed-off .22 [rifle] to make a … make-shift silencer.” Michael followed defendant’s
instructions and did so.
Michael testified defendant handed ammunition to him for the unloaded
.22-caliber sawed-off rifle. Since they did not have that rifle’s clip or magazine, Michael

13.
manually loaded one bullet into his rifle and fired one shot into Mitchell’s head. After
the first shot, Michael pulled back the mechanism, put another round in, closed it, and
fired a second shot into Mitchell’s head. Defendant stayed in the bedroom and continued
to hold the pump-action rifle as Michael shot Mitchell.
Michael testified he intended to kill Mitchell when he shot him in the head, but
claimed defendant influenced him to do it.
Defendant and the Minors Leave in Mitchell’s Vehicles
After Michael shot Mitchell, they left the trailer and Michael loaded the rifle and
the pillows into Mitchell’s RV.
Defendant and the minors split up between Mitchell’s SUV and the RV.
Defendant drove the SUV and Michael drove the RV. They both stopped at a gas station.
Michael testified they decided it would “look funny seeing a kid driving an [RV],” and it
was too expensive to fill it up with gasoline. Everyone moved the stolen property from
the RV into the SUV. They bought gasoline for the SUV and abandoned the RV.
Defendant drove the SUV away from the gas station, and Michael and the brothers were
with him.
When they were traveling through New Mexico, Larry was driving when they
were stopped by the police and arrested.
DISCOVERY OF MITCHELL’S BODY
Sunday, October 4, 1992
P.W. lived in the trailer at space No. 120.11 P.W. was out of town from Friday,
October 2 to Sunday, October 4, 1992. P.W. did not tell anyone that she was leaving, but
residents in the mobile home park would have noticed that her car was gone.
P.W. returned to her trailer around 7:30 p.m. on Sunday, October 4, 1992. She
discovered a window screen was broken and someone had gained entry. Everything

11 P.W. testified at the preliminary hearing.

14.
inside was “torn apart,” the rooms were trashed, food had been cooked and left on the
stove, and soda cans and cigarette butts were “all over the place.” Someone had used one
of the beds, and the sheets on the other bed were slashed. P.W.’s televisions, Nintendo
console and games, and certain CDs and jewelry were missing.
P.W. found several items in the trailer that did not belong to her: torn T-shirts, a
rifle’s storage sleeve, and something that looked like a hand grenade.
When M.M. later gave certain items to the police, P.W. identified the jewelry and
CDs as some of the property taken from her trailer.
Monday, October 5, 1992; Discovery of Mitchell’s Body
P.H. testified Mitchell did not call her on Sunday evening, October 4, 1992, as
promised. On Monday morning, October 5, 1992, P.H. kept calling Mitchell but he did
not answer. P.H. and her daughter drove to Mitchell’s trailer to check on him.
When they arrived at Mitchell’s trailer, P.H. saw that his two vehicles were gone,
and there was broken glass in the area where Mitchell used to park his SUV. The trailer’s
front door and the sliding glass door into to the backyard were both open.
P.H. testified the trailer’s interior was “all trashed” and “torn up.” There were
dirty pans, dishes, food, and trash in the kitchen.
P.H. found Mitchell’s body in the bedroom. P.H. ran out and told her daughter to
call 911.
The Initial Investigation
Detective Robert Stratton responded to Mitchell’s trailer and led the
investigation.12
Stratton testified about his observations when he entered the trailer: “Basically
[Mitchell] was tied up. He was lying facedown [sic] on the bed. He was tied up with a
rope around his legs.” Mitchell had injuries on his upper neck and back of his head

12 Stratton testified at the evidentiary hearing. At that time, he had retired as a
detective.

15.
consistent with blunt force trauma. There was blood on his body, and “what appeared to
be at least one bullet wound to the back of the head, and there was also some trauma to
the back of the head and neck area that was blood covered .…”
The medical examiner reported Mitchell had a broken neck, and two gunshot
wounds to the head.
Stratton testified it was possible for a person to break someone’s neck by using an
axe if the person inflicted the blows with sufficient force. Stratton was asked about his
professional experience investigating victims with broken necks and their ability to move.
Stratton testified that someone with a broken neck would only be able to move their
extremities if their nerves were not severed.
Also at the evidentiary hearing, the prosecution introduced photographs taken
during the investigation that showed Mitchell’s body in the bedroom. Michael testified
the photographs accurately showed how Mitchell was lying face-down on the bed after he
was shot, except the police had removed the blanket from Mitchell’s head.
THE SUSPECTS’ POSTARREST STATEMENTS
On the afternoon of October 5, 1992, Stratton learned that police in New Mexico
had taken into custody defendant and the three minors while they were driving in
Mitchell’s stolen SUV.
Stratton instructed the New Mexico authorities to keep the four suspects separate
from each other, and they complied with his instructions. Stratton and another detective
immediately traveled to New Mexico.
On October 6, 1992, the detectives separately interviewed the suspects while they
were in custody in New Mexico. At the evidentiary hearing, Stratton testified about the
postarrest statements made by Michael, Larry, and defendant.
Postarrest Statements of Michael and Larry
Stratton testified the first person he interviewed was Michael, who initially
claimed defendant shot and killed the victim. Michael eventually admitted he shot and

16.
killed the victim. Michael said defendant threatened him and his family if he did not kill
the victim.13
Stratton next interviewed Larry, who said that when Mitchell returned to the trailer
in the RV, defendant told Larry to keep watching through the trailer’s front window, and
tell defendant what was going on and if Mitchell was coming into the trailer. Larry said
he had been holding onto a rifle for some time, and defendant took that rifle from him.
Larry said he was outside the trailer when Mitchell walked through the front door. Larry
said he heard a “poof” sound from the bedroom.14
Defendant’s Postarrest Statements
Stratton interviewed defendant after he spoke to Michael Defendant said they had
previously burglarized several trailers in the same mobile home park. Stratton testified
that as defendant described these burglaries, he sometimes said, “I did or I was there, but
other times he would say we, in terms of we took property from the … mobile home, or
we fled. So there were times when … he seemed to be talking about more than just
himself, but there were other times when he was specific about things that he, himself,
did.”
Defendant said the group broke into Mitchell’s trailer by having Michael climb
through a bathroom window, and then Michael unlocked the door for them. Defendant
and Michael were wearing gloves, and the brothers put socks on their hands.

13 At the evidentiary hearing, Michael testified that during his postarrest interview in
New Mexico, he initially said defendant gave all the orders and defendant shot and killed
Mitchell. The officer advised Michael that the other suspects implicated him as the
shooter, and Michael admitted he shot the victim.
14 At the evidentiary hearing, Larry testified that after he was arrested, he was
advised that someone was killed at the trailer and he was going to be charged with
murder. Larry gave a statement to an investigator but could not remember what he said.
Larry could not remember telling the police that Michael killed Mitchell with a shotgun
in defendant’s presence.

17.
Defendant said they already had the .22-caliber sawed-off rifle, but they did not
have the clip that went with it. Stratton could not remember if defendant got the
sawed-off rifle from a prior burglary or somewhere else.
Defendant said that during the burglary at Mitchell’s trailer, they found an axe,
and a .22-caliber pump-action rifle with ammunition. One person in the group obtained
rope. They found a little less than $100 in Mitchell’s pockets, and $25 in change in the
bedroom.
Defendant said Larry was initially inside the trailer. When Mitchell came home,
Larry went outside but stayed by the back door.
Defendant said Michael tied up the victim’s hands, took the victim into the
bedroom, tied up his feet, and placed a towel or blanket over the victim’s head. As he
described this conduct, however, defendant also said, “we … tied him up.”
Defendant said Michael hit the victim with the axe multiple times. After Michael
finished, defendant put the axe under the living room sofa.
Michael told defendant the victim was tough and he was not dead. Defendant said
he discussed things with Michael and Charles. Defendant claimed Michael “stated that
they needed to kill the victim.” Defendant said he told Michael, “ ‘I don’t have the balls
to do that, so I’m not going to do it.’ ”
Defendant said he stood in the bedroom and watched Michael shoot the victim
twice. Michael used the .22-caliber sawed-off rifle that did not have a magazine.
Defendant said that in order to fire two shots from that firearm, “they had to pull the
empty shell casing after one round was fired, that [Michael] had to do that, and then
[Michael] had to load a second round into the weapon since it did not have the magazine
to it, and to shoot the second round.”
Defendant said when they left Mitchell’s trailer, he drove the SUV and the
three minors left in the RV.

18.
Defendant did not mention that they abandoned the RV. Instead, he said that he
kept driving the SUV until he got tired, and then he let Larry drive. The police stopped
them in New Mexico because Larry was driving over the speed limit.
Stratton testified that during this interview, defendant “pointed out that he was an
adult and they were juveniles, and he expressed the fear that the three juveniles would
somehow get together and try to make it appear that he was more culpable or more
responsible for the offense than they were because of his age.”
Michael’s Statements at the Youth Offender Hearing
Also at the evidentiary hearing, the prosecution introduced evidence about
statements made by Michael at a youthful offender hearing in 2024. At that
2024 hearing, Michael said that when Mitchell drove up to the trailer, everyone ran into
the backyard. Michael said defendant told him that Mitchell was a sex offender. Michael
said this information made him angry, he “snapped” because he had used a large amount
of heroin, and he decided to go back into the trailer and kill Mitchell.15
At the evidentiary hearing, Michael confirmed he made these statements at the
2024 youthful offender hearing, and defendant made this accusation about Mitchell when
they ran into the trailer’s backyard. Michael testified defendant’s statements “triggered”
him because Michael was molested when he was 13 years old. Charles knew he had been
molested, and Michael believed Charles told defendant about his history.
DEFENSE EVIDENCE
Defendant did not testify at the evidentiary hearing.
Dr. Michael Musacco, a psychologist, was retained by the defense to determine
whether defendant suffered from an impairment in his intelligence at the time of the
murder in 1992.

15 There is no evidence in this record that Mitchell had a criminal record.

19.
Musacco testified he reviewed expert psychiatric and psychological evaluations
about defendant that were prepared prior to his plea in 1993, and addressed his mental
functioning related to the charges. There were concerns about whether defendant had
borderline intellectual functioning and/or an intellectual disability. Musacco reviewed
police reports that described the burglary and murder, and that defendant and the
three juveniles were heading to defendant’s home state when they were arrested. In
2023, Musacco conducted his own clinical interview of defendant, along with a mental
status examination and psychological tests, and tried to determine his mental status at the
time of the crimes in 1992.
Based on the experts’ tests and prior reports, Musacco believed defendant had
borderline intellectual functioning, and defendant’s intelligence was “close to
substantially impaired” at the time of the murder. Musacco conceded that someone with
borderline intellectual functioning was not incapable of planning a crime, actively
participating in a crime, instigating a crime, or preventing a crime.
Musacco further testified that defendant had educated himself in prison, earned his
GED, taken college courses, and improved his verbal abilities compared to when he was
younger. Musacco also diagnosed defendant with anti-social personality disorder. He
did not find any evidence of malingering.
Musacco testified defendant had posttraumatic stress disorder (PTSD) at the time
of the evidentiary hearing in 2025, that resulted from being “locked up in prison for
30 years.” Defendant had “seen and experienced a lot of things that were pretty horrific.
He shared with me that he has nightmares and flashbacks as a constant of those events,
and he was also the victim of pretty severe psychological, emotional, and physical abuse
as a child.” Defendant did not describe Mitchell’s murder as one of the triggers that
contributed to his PTSD. Defendant said he had a general but not significant history of
substance abuse.

20.
PROCEDURAL BACKGROUND
On November 13, 1992, the information was filed in Kern County Superior Court
charging defendant with count 1, first degree premeditated murder of Mitchell (§ 187,
subd. (a)), with the special circumstance that the murder was committed during the
commission or attempted commission of a burglary (§ 190.2, former subd. (a)(17)(VII)).
As to count 1, it was further alleged that in the commission of the offense, defendant
personally used a firearm (§ 12022.5, subd. (a)), and a principal was armed with a
firearm, a rifle (§ 12022, subd. (a)(1)).
Defendant was also charged with count 2, residential burglary of Mitchell’s trailer
(former § 460.1); count 3, vehicle theft of Mitchell’s SUV (Veh. Code, § 10851,
subd. (a)); count 4, vehicle theft of his RV; and count 5, residential burglary of P.W.’s
trailer.
Plea and Sentence
On September 29, 1993, defendant pleaded no contest to count 1, first degree
premeditated murder, and admitted the burglary-murder special circumstance, for the
indicated sentence of an LWOP term. The other charges and allegations were dismissed,
and the prosecutor declined to seek the death penalty. The parties stipulated to the
preliminary hearing and police reports for the factual basis, and further stipulated that
defendant “did not pull the trigger” to kill the victim.
At some point after the plea hearing, defendant moved to withdraw his plea and
admission. The trial court appointed separate counsel to represent defendant on the
motion.
On November 29, 1993, the trial court convened a hearing, and defendant’s
secondary counsel stated defendant no longer wanted to withdraw his plea and admission.
Defendant confirmed that decision, and the court conducted the sentencing hearing.

21.
Defense counsel moved to strike the special circumstance, and argued defendant
was not the leader of the group, Michael was the shooter, and Michael and the brothers
instigated the trailer burglaries that led to the murder. The trial court denied the motion.
The trial court sentenced defendant to the indicated LWOP term. In 1994, the
judgment was affirmed on appeal. (People v. Mitchell (F020913, Dec. 14, 1994)
[nonpub. opn.].)
SECTION 1172.6 PETITION FOR RESENTENCING
On February 7, 2019, defendant filed a petition in the trial court, in propria
persona, for resentencing pursuant to former section 1170.95, later renumbered as
section 1172.6. Defendant used a form petition where he checked boxes declaring he was
not the actual killer, he did not act with an intent to kill, and he was not a major
participant in the underlying felony or did not act with reckless indifference to human life
in the course of the crime, and could not be convicted of murder after the amendments to
sections 188 and 189. The trial court appointed counsel.
The prosecution’s responsive brief asserted the preliminary hearing evidence
demonstrated defendant was a major participant in the crime and acted with reckless
indifference to human life, that he aided and abetted in the murder with the intent to kill,
and his admission of the burglary-murder special circumstance constituted an admission
that his conviction did not fall within the provisions of section 1172.6.
The Trial Court’s Initial Denial of the Petition
On May 11, 2020, the trial court filed a minute order that summarily denied the
petition for failing to state a prima facie case; it did not provide a statement of reasons for
the denial.16

16 The trial court summarily denied defendant’s petition before our Supreme Court
clarified in People v. Patton (2025) 17 Cal.5th 549, that the court may “rely on
unchallenged, relief-foreclosing facts within a preliminary hearing transcript to refute [a
petition’s] conclusory, checkbox allegations” and make the prima facie determination.
(Id. at p. 564.)

22.
On appeal from the trial court’s summary denial of his petition, this court affirmed
the trial court’s prima facie denial and held defendant was ineligible for resentencing as a
matter of law because his admission of the burglary-murder special circumstance
precluded relief, pursuant to the factors addressed in People v. Banks (2015) 61 Cal.4th
788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).
Our Supreme Court granted review and transferred the matter back to this court to
reconsider in light of People v. Strong (2022) 13 Cal.5th 698, 703 (Strong), which held
that a defendant’s admission to a special circumstance made prior to the decisions in
Banks and Clark, did not preclude the defendant from making a prima facie showing for
resentencing eligibility under 1172.6.
After transfer, this court ordered further briefing and the parties agreed remand
was necessary. In Mitchell I, this court held that based on Strong, defendant’s admission
to the burglary-murder special circumstance in 1993 was “not preclusive on prima facie
review of the petition under section 1172.6. [Citation.] The petition was facially
sufficient and alleged the essential facts necessary for relief under section 1172.6.”
(Mitchell I, supra, F081153.) We reversed the trial court’s order that summarily denied
the petition, and remanded the matter with directions for the court to issue an order to
show cause and, to the extent necessary, conduct an evidentiary hearing.
THE EVIDENTIARY HEARING
On remand, the trial court issued an order to show cause and set the evidentiary
hearing. On February 20, 24, and 26, 2025, the trial court conducted the evidentiary
hearing.
As set forth above, Michael, Larry, and Stratton testified for the prosecution, and
Musacco testified for the defense. The parties stipulated the trial court also could
consider the redacted preliminary hearing transcript that omitted hearsay evidence
previously admitted pursuant to section 872, subdivision (b).

23.
The Trial Court’s Denial of the Petition
On April 3, 2025, the trial court denied defendant’s petition for resentencing, and
held defendant was still guilty of first degree murder beyond a reasonable doubt after the
amendments to sections 188 and 189 based on the evidence introduced at the evidentiary
hearing.
The trial court made extensive findings and began by explaining the factual basis
for its decision:

“This Court did consider the testimony given at the evidentiary
hearing by [Michael], [Larry], and [Stratton]. I considered all of the
exhibits marked and admitted, which were the [prosecution’s] exhibits, as
well as Defense Exhibit A, which was the report by [Musacco] on the
psychological evaluation of [defendant]. [¶] I will note that in reviewing
the preliminary hearing transcript, which was admitted and introduced by
the [prosecution], I did not consider any subdivision (b) of [s]ection 872
hearsay from that preliminary hearing transcript as required by law in
[section] 1172.6[, subdivision] (d)(3) ….”
The trial court found Michael’s hearing testimony was corroborated by the record.

“[The prosecution introduced] three photographs of [Mitchell] who
appears to be in a bedroom, having been tied up and shot in the head. That
would corroborate testimony of [Michael].

“There was also the testimony of [Stratton], who testified that
[defendant] told him information that was consistent with a lot of what
[Michael] testified to during the evidentiary hearing. [D]efendant told
[Stratton] that they found a .22 pump rifle and ammunition, food, clothing,
alcohol, an ax[e], and rope. [D]efendant said that [Michael] tied up
[Mitchell] and walked [him] back to the back bedroom. [D]efendant said
he gave ammunition to [Michael] and loaded the pump .22 himself. He
told—[defendant] told [Stratton] that the .22 and the ammunition came
from [Mitchell’s trailer]. He told [Stratton] … that [Michael] went through
the bathroom window to open the door for the rest of the individuals, which
would include [defendant], [Larry], and [Charles] ….

“[D]efendant told … [Stratton] that he saw [Mitchell] being tied up
by [Michael]. He saw [Michael] hit [Mitchell] with the ax[e], and he saw
[Michael] shoot [Mitchell] twice with the .22. [D]efendant told [Stratton]
that he saw [Michael] reload the second bullet and shoot [Mitchell] again.

24.
[D]efendant told [Stratton] that he saw [Michael] strike [Mitchell] multiple
times with an ax[e]. And [defendant] told [Stratton], among other things,
that, he, [Michael], and [Charles] were present during some discussions
regarding shooting [Mitchell].”
The trial court next held that Michael was the actual killer of Mitchell, but the
prosecution proved beyond a reasonable doubt that defendant acted with the intent to kill
and was still guilty of first degree murder.

“[Although defendant] was not the actual killer, he did have the
intent to kill, and he aided, abetted, counseled, commanded, induced,
solicited, requested, assisted the actual killer, that being [Michael], in the
commission of murder in the first-degree, given the totality of the evidence
that was presented, [defendant’s] statements to … [Stratton], back when he
was originally arrested on this charge back in 1992, and the totality of the
testimony given by [Michael] as well as [Larry] and the exhibits that were
admitted [at the evidentiary hearing] for this Court’s consideration.”
The trial court held the prosecution also proved beyond a reasonable doubt that
defendant was still guilty of first degree murder because he was a major participant in the
underlying felony who acted with reckless indifference to human life pursuant to the
factors addressed in Banks and Clark. The court held for purposes of the analysis, the
underlying felonies were burglary or attempted burglary, and/or robbery or attempted
robbery.
The trial court found the following facts supported a finding that defendant was a
major participant based on the factors in Banks.

“It is clear to this Court that it was [defendant’s] idea to burglarize
numerous homes over a period of days in order to gain resources of
monetary value to go to either South or North Carolina, and I will note that
that would be consistent with the psychological evaluation by [Musacco]
which does indicate that [defendant] … told him that he was born in North
Carolina, and so he is from North Carolina, it would make sense that that is
the location that they would be trying to go—that he would want to go back
to or try to get away from Bakersfield and go back to.”

25.
The trial court noted that at the time of the murder, defendant was 26 years old and
10 years older than the 16-year-old school friends Michael and Charles, and he was
11 years older than 15-year-old Larry.

“[Their ages] would be consistent with [defendant] … being the
one who was leading the group in these burglaries that ultimately led to the
death of the victim. [Defendant] did have a weapon. He was present when
[Mitchell] was shot by [Michael]. He did nothing to attempt to help
[Mitchell] after he was shot. He was present when the victim was tied up,
did nothing to help him. In this string of burglaries that resulted in the
homicide, took place over numerous days, so it was … lengthy as far as the
crimes that were committed.”
The trial court found defendant’s conduct was also consistent with Clark’s
discussion of the “reckless indifference” factors—awareness of the presence of a weapon
or weapons, physical presence at the scene, an opportunity to restrain confederates or aid
victims, the duration of the crime, knowledge of any threat the confederates might
represent, and efforts to take to minimize risks.

“[Defendant] … also used a weapon. He had a weapon in his
possession and is the one, by his own admission, [who] gave the
ammunition to [Michael] who then used that to shoot the victim.

“[Michael] testified that it was [defendant] who showed him how to
use a [pillow] … to cover the end … of his rifle to muffle the sound. After
the shooting, [defendant] then fled the residence with the other individuals
in the stolen vehicles and were making their way to, it looks like, North
Carolina or South Carolina and were eventually apprehended in New
Mexico.”
The trial court considered defendant’s age at the time of the offense, along with
Musacco’s testimony about his possible mental status in 1992, and rejected these
circumstances given the facts of the crimes.

“A [defendant’s] youth and developmental disabilities are relevant to
the inquiry as to whether a [defendant] was a major participant and
understood the degree of risk to human life. The youth is part of the totality
of the circumstances germane to determining whether a [defendant] was a
major participant who acted with reckless indifference to human life has

26.
been expanded beyond merely the teenage years. The lack of capacity to
exercise mature judgment of young adults under 25 years of age must also
be taken into consideration. I will note that [defendant] was not under the
age of 25 years at the time of the incident, he was 26, but I still did consider
his age, that being 26, in deciding whether or not the [prosecution has]
proven beyond a reasonable doubt whether [defendant] was a major
participant who acted with reckless indifference to human life.”
The trial court concluded it was “clear that the [prosecution has] proven beyond a
reasonable doubt that [defendant] was both a major participant who acted with reckless
indifference to human life in the underlying felonies of burglary and/or robbery or
attempted burglary or attempted robbery as described in subdivision (d) of
section 190.2 ….”
On April 7, 2025, defendant filed a timely notice of appeal.
DISCUSSION
As explained above, appellate counsel filed a brief with this court pursuant to
Delgadillo. The brief included counsel’s declaration that appellant was advised he could
file his own brief with this court. This court also advised appellant that he could file a
supplemental letter brief.
Defendant’s Contentions
In response to this court’s notice, defendant filed a “declaration” under “penalty of
perjury.” He stated his declaration was not a brief but argued this court must grant relief
and order resentencing to reduce his LWOP term so he will be eligible for parole.
Defendant asserted Michael “decided on his own” to murder Mitchell; Michael
“decided himself to break into [Mitchell’s] home”; Michael was the “ring leader” of the
minors and “all of the crimes that happened” that day; and “[n]o one, not even myself,
told him to do anything, because he’s the one that has a violent history.”
Defendant stated he left North Carolina and came to California to visit his sister,
and he met Charles and Larry because they lived in the trailer next to his sister. “Getting
mixed up with [the brothers] was the worst thing I had ever done, because they

27.
[introduced] me” to Michael, who was “extremely violent, and if you did not do what he
said, he would beat you up until you complied with his orders.”
Defendant declared that when Michael shot Mitchell, defendant was afraid for his
own life and safety, and he continued to be afraid even after the murder.
In raising these arguments, defendant effectively challenges the trial court’s
findings after the evidentiary hearing that the prosecutor proved beyond a reasonable
doubt that he was still guilty of first degree murder after the amendments to sections 188
and 189, and that he did not act with the intent to kill, he was not a major participant who
acted with reckless indifference, and he was eligible for resentencing.
I. Section 1172.6 and The Evidentiary Hearing
We begin with Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437),
which amended sections 188 and 189 and “altered the substantive law of murder in
two areas. First, with certain exceptions, it narrowed the application of the felony-murder
rule by adding section 189, subdivision (e) .… [Citation.] Under that provision, ‘A
participant in the perpetration or attempted perpetration of a [specified felony] in which a
death occurs is liable for murder only if one of the following is proven: [¶] (1) The
person was the actual killer. [¶] (2) The person was not the actual killer, but, with the
intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or
assisted the actual killer in the commission of murder in the first degree. [¶] (3) The
person was a major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of [s]ection 190.2.’ ” (People
v. Curiel (2023) 15 Cal.5th 433, 448 (Curiel).)
“Second, Senate Bill 1437 imposed a new requirement that, except in cases of
felony murder, ‘a principal in a crime shall act with malice aforethought’ to be convicted
of murder. [Citation.] ‘Malice shall not be imputed to a person based solely on his or her
participation in a crime.’ [Citation.] One effect of this requirement was to eliminate
liability for murder as an aider and abettor under the natural and probable consequences

28.
doctrine. [Citation.] … Thus, under prior law, a defendant who aided and abetted an
intended assault could be liable for murder, if the murder was the natural and probable
consequence of the intended assault. [Citation.] The defendant need not have intended
the murder or even subjectively appreciated the natural and probable consequences of the
intended crime. [Citation.] Senate Bill 1437 ended this form of liability for murder.”
(Curiel, supra, 15 Cal.5th at p. 449; People v. Harden (2022) 81 Cal.App.5th 45, 51–52.)
Senate Bill 1437 added a process “for those convicted of murder under now
obsolete accomplice liability theories to seek vacatur and resentencing,” which is codified
as section 1172.6. (People v. Ramos (2025) 112 Cal.App.5th 174, 183; People v.
Saavedra (2023) 96 Cal.App.5th 444, 446, fn. 1.)
“Once a petitioner establishes a prima facie case for relief and the superior court
issues an [OSC], the matter proceeds to an evidentiary hearing .…” (People v. Vargas
(2022) 84 Cal.App.5th 943, 951 (Vargas).)
As explained above, this court remanded the matter for the trial court to conduct
an evidentiary hearing. “At the [evidentiary] 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 [s]ection[s] 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (d)(3).)
“The admission of evidence in the [evidentiary] 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. The court may also consider the
procedural history of the case recited in any prior appellate opinion. However, hearsay
evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of
[s]ection 872 shall be excluded from the hearing as hearsay, unless the evidence is
admissible pursuant to another exception to the hearsay rule. The prosecutor and the

29.
petitioner may also offer new or additional evidence to meet their respective burdens.”
(§ 1172.6, subd. (d)(3).)
At the evidentiary hearing, the trial court acts as an independent fact finder and
makes credibility determinations, weighs the evidence, and determines whether the
prosecution met its burden to prove beyond a reasonable doubt that defendant was still
guilty of murder after the amendments to sections 188 and 189. (People v. Rodriguez
(2024) 103 Cal.App.5th 451, 457; People v. Gudiel (2024) 107 Cal.App.5th 848, 858;
People v. Clements (2022) 75 Cal.App.5th 276, 298 (Clements); People v. Harden, supra,
81 Cal.App.5th at p. 51.)
“Although the parties may offer new or additional evidence to meet their
respective burdens, section 1172.6, subdivision (d)(3) does not contemplate a whole new
trial on all the elements of murder. [Citation.] Rather, ‘[t]he 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.’ [Citations.] Thus, the focus
at the evidentiary hearing phase of [a section] 1172.6 petition is ‘on evidence made
relevant by the amendments to the substantive definition of murder…’ ” (Vargas, supra,
84 Cal.App.5th at p. 952.)
If the trial court “finds beyond a reasonable doubt that the petitioner is guilty of
murder notwithstanding the amendments to sections 188 and 189, the petitioner is
ineligible for relief under section 1172.6.” (Vargas, supra, 84 Cal.App.5th at p. 951.)
II. Substantial Evidence of Defendant’s Intent to Kill
The trial court found that while defendant was not the actual killer, the prosecution
proved beyond a reasonable doubt that “he did have the intent to kill, and he aided,
abetted, counseled, commanded, induced, solicited, requested, assisted the actual killer,
that being [Michael], in the commission of murder in the first-degree, given the totality of
the evidence that was presented, [defendant’s] statements to [Stratton], back when he was

30.
originally arrested on this charge back in 1992, and the totality of the testimony given by
[Michael] as well as [Larry] and the exhibits that were admitted [at the evidentiary
hearing] for this Court’s consideration.”
A. Direct Aiding and Abetting and the Intent to Kill
“Senate Bill 1437 ‘does not eliminate direct aiding and abetting liability for
murder because a direct aider and abettor to murder must possess malice aforethought.’
[Citation.] ‘Under a direct aider and abettor liability theory, the prosecution must prove
the person who is not the actual killer “engaged in the requisite acts [actus reus] and had
the requisite intent [mens rea]” to aid and abet the target crime of murder.’ [Citation.] A
direct aider and abettor’s ‘guilt is based on a combination of the direct perpetrator’s acts
and the aider and abettor’s own acts and own mental state.’ ” (People v. Williams (2022)
86 Cal.App.5th 1244, 1252.)
“[T]o establish liability for murder under the theory of direct aiding and abetting,
‘the prosecution must show that the defendant aided or encouraged the commission of the
murder with knowledge of the unlawful purpose of the perpetrator and with the intent or
purpose of committing, encouraging, or facilitating its commission.’ ” (Curiel, supra, 15
Cal.5th at pp. 466–467.)
A direct aider and abettor must “necessarily ‘know and share the murderous intent
of the actual perpetrator.’ ” (People v. Offley (2020) 48 Cal.App.5th 588, 596.) There
must be proof “the defendant aided or abetted the actual killer in the lethal act itself, and
not just the underlying felony.” (People v. Morris (2026) 19 Cal.5th 671, 678.)
A deliberate intent to kill constitutes express malice. (People v. Morris, supra, 19
Cal.5th at p. 678.) Direct evidence of a defendant’s malice and intent to kill rarely exists,
and it may be inferred from the circumstances of the crime and the defendant’s words and
actions. (People v. Smith (2005) 37 Cal.4th 733, 741; People v. Sánchez (2016) 63
Cal.4th 411, 457.)

31.
B. Appellate Review of the Trial Court’s Findings
In this appeal from the trial court’s denial of defendant’s section 1172.6 petition
after an evidentiary hearing, we review questions of law independently and the trial
court’s evidentiary rulings for an abuse of discretion. (People v. Reyes (2023) 14 Cal.5th
981, 988; People v. Waidla (2000) 22 Cal.4th 690, 724.)
We review the trial court’s factual findings for substantial evidence. (Clements,
supra, 75 Cal.App.5th at p. 298.) “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 defendant guilty] 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.” (Clements, at
p. 298.)
C. Analysis
The trial court’s finding that defendant had the intent to kill Mitchell is supported
by overwhelming evidence introduced at the evidentiary hearing. Michael testified that
when they committed the prior burglaries, they discussed what to do if someone caught
them inside a trailer, and “we were told that we were going to possibly kill them,” but
Michael claimed he could not remember who said this. M.M. stated she was with
defendant and the minors when they burglarized a trailer the day before Mitchell was
killed, and defendant said he intended to break into another trailer to get a car and, if
someone saw defendant or his accomplices, “they would have to kill” that person to
avoid being identified.

32.
As for the burglary of Mitchell’s trailer, defendant and the minors realized that
Mitchell had driven up to his trailer in the RV, and they grabbed stolen property and ran
into the backyard. Michael and the brothers wanted to immediately leave. Defendant
wanted to stay because this was “the best opportunity to get a vehicle,” since Mitchell
likely had the keys to the SUV, and they decided to stay.
Defendant and Michael went into the trailer armed with rifles, and confronted
Mitchell at gunpoint when he opened the trailer’s front door, even though defendant had
already declared that they would have to kill anyone who saw them.
As noted by the trial court, defendant appeared to admit in his postarrest statement
that he was present when Michael assaulted Mitchell with the axe. When Michael later
realized Mitchell was still alive, defendant said “that it had to be done,” that Mitchell had
to be killed, and allegedly threatened to kill Michael’s family if he did not kill Mitchell.
Michael and defendant went back into Mitchell’s bedroom. Michael held the
unloaded .22-caliber sawed-off rifle. Defendant held the loaded .22-caliber pump-action
rifle, and also had the ammunition they had just found among Mitchell’s property.
Michael testified defendant instructed him “how to wrap pillows around the sawed-off
.22[-caliber rifle] to make a … make-shift silencer,” and Michael followed defendant’s
instructions. Next, defendant handed a single bullet to Michael so he could manually
load his rifle, since they did not have the clip or magazine for that weapon. Michael fired
the first shot into Mitchell’s head, ejected the cartridge, manually reloaded with a
second bullet, and fired the second shot into Michell’s head. Larry testified he was in the
living room and heard a “poof” sound, likely consistent with the pillows muffling the
gunshots as defendant directed.
Defendant clearly acted with the intent to kill Mitchell by declaring that it “had to
be done” after being told Mitchell was still alive, returning to the bedroom with Michael,
instructing Michael how to turn his unloaded sawed-off rifle into a silencer, handing

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ammunition to Michael so he could manually load his rifle, and watching as Michael
fatally shot Mitchell in the head.

III. Defendant Was a Major Participant Who Acted With Reckless Indifference to
Life
We next address the trial court’s finding that the People proved beyond a
reasonable doubt that defendant was still guilty of first degree murder as a major
participant who acted with reckless indifference to human life, based on the factors
addressed in Banks and Clark.
A. Section 189, Subdivision (e)
Section 189, subdivision (e) was amended by Senate Bill 1493 to state that “[a]
participant in the perpetration or attempted perpetration of a [qualifying felony] in which
a death occurs is liable for murder only if,” as relevant herein, “[t]he person was a major
participant in the underlying felony and acted with reckless indifference to human life, as
described in subdivision (d) of [s]ection 190.2.” (§ 189, subd. (e)(3).)
Section 190.2 is the special circumstances statute, which “identifies the
circumstances under which murderers and accomplices can be punished by death or life
imprisonment without parole.” (People v. Douglas (2020) 56 Cal.App.5th 1, 7.)
Subdivision (d) of section 190.2 “governs the felony-murder special circumstance.”
(People v. Emanuel (2025) 17 Cal.5th 867, 881.) “For defendants who did not kill and
lacked intent to kill, section 190.2, subdivision (d) permits such punishment only if they
acted ‘with reckless indifference to human life and as a major participant’ [in] a
qualifying felony like robbery.” (Douglas, at p. 7.)
B. Banks and Clark
In Banks and Clark, our Supreme Court set forth factors to determine whether
someone was a “major participant” who acted with “reckless indifference” for purposes
of the section 190.2, subdivision (d) felony murder special circumstance. (In re Taylor
(2019) 34 Cal.App.5th 543, 561; Strong, supra, 13 Cal.5th at p. 710.) When “Senate Bill

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1437 amended … section 189 to incorporate major participation and reckless indifference
requirements, it codified the understanding of those requirements elucidated in Banks and
Clark.” (Strong, at p. 710.)
Banks addressed “under what circumstances an accomplice who lacks the intent to
kill may qualify as a major participant .…” (Banks, supra, 61 Cal.4th at p. 794.) Banks
listed the following factors that should be considered in making that determination:
“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 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?” (Id. at p. 803,
fn. omitted.)
Banks explained that “[n]o one of these considerations is necessary, nor is any
one of them necessarily sufficient. All 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].” (Banks, supra, 61 Cal.4th at p. 803.)
Clark defined “reckless indifference to human life” as being “ ‘implicit in
knowingly engaging in criminal activities known to carry a grave risk of death.’ ”
(Clark, supra, 63 Cal.4th at p. 616.) Reckless indifference to human life “encompasses a
willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the
defendant does not specifically desire that death as the outcome of his actions.” (Id. at
p. 617.) “We analyze the totality of the circumstances to determine whether [the
defendant] acted with reckless indifference to human life. Relevant factors include: Did
the defendant use or know that a gun would be used during the felony? How many

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weapons were ultimately used? Was the defendant physically present at the crime? Did
he or she have the opportunity to restrain the crime or aid the victim? What was the
duration of the interaction between the perpetrators of the felony and the victims? What
was the defendant’s knowledge of his or her confederate’s propensity for violence or
likelihood of using lethal force? What efforts did the defendant make to minimize the
risks of violence during the felony?” (In re Scoggins (2020) 9 Cal.5th 667, 677, citing
Clark, at pp. 618–623.)
As in Banks, Clark held that “ ‘[n]o one of these considerations is necessary, nor is
any one of them necessarily sufficient.’ ” (Clark, supra, 63 Cal.4th at p. 618.) “Because
the major participant and reckless indifference elements often ‘ “significantly overlap” ’
[citations], this list of factors also overlap[s] with those we had identified in connection
with the major participation inquiry in Banks.” (Strong, supra, 13 Cal.5th at p. 706.)
C. Analysis
There is overwhelming evidence to support the trial court’s finding that defendant
was still guilty of first degree murder as a major participant in the underlying felonies of
burglary and/or robbery, who acted with reckless indifference to human life. Indeed,
defendant’s conduct was consistent with nearly every factor set forth in Banks and Clark.
Defendant was not the actual killer, but he was far from being a disinterested or
detached bystander. Instead, defendant was an active aider and abettor who directed the
conduct of his accomplices in their actions prior to and culminating in the murder of
Mitchell. Defendant was older than Michael, Charles, and Larry, and they looked up to
him. Michael and the brothers already wanted to leave Bakersfield. Defendant suggested
they should go to North or South Carolina, because they would find housing and jobs
there. They committed the trailer burglaries to get money and transportation so they
could leave.

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As previously discussed, defendant had already stated that if someone saw
defendant or his accomplices during a trailer burglary, “they would have to kill” that
person to avoid being identified.
When they burglarized Mitchell’s trailer, defendant and the minors brought along
the unloaded .22-caliber sawed-off rifle they had already stolen from another trailer. As
they ransacked Mitchell’s possessions, they found the .22-caliber pump-action rifle and
ammunition. Michael tried to break into Mitchell’s SUV using a screwdriver but only
cracked the glass. Defendant told Michael to look for the car keys as they went through
the trailer’s interior, but Michael could not find the keys.
Once they realized Mitchell was driving up in his RV, they grabbed Mitchell’s
property, ran out of the trailer’s back door, and went into the backyard area. They clearly
had the opportunity to leave the area before Mitchell entered his trailer, without being
seen by him, and Michael and the brothers wanted to immediately leave.
Defendant directed and managed nearly every step that followed, all of which
increased the risk of violence and led to Mitchell’s murder. While they were still in the
trailer’s backyard, defendant told the minors that they should stay because it was their
“best opportunity” to get a car since Mitchell likely had the keys to the SUV. Michael
claimed he argued with defendant about whether to stay or leave, but they agreed to
confront Mitchell to get his car keys, even though defendant had already stated that they
would have to kill anyone who saw them committing the burglaries.
Once they decided to stay at the trailer, defendant took the lead in orchestrating
what would happen. He instructed Michael to hold the unloaded sawed-off rifle, stand
near the door, accost Mitchell when he entered the trailer, and immediately close the
door. Defendant went into the kitchen to hide, and held the loaded pump action rifle.
When Mitchell entered the trailer, defendant and Michael immediately confronted
him at gunpoint. Either Michael or defendant called outside to the brothers to get some
rope. Charles arrived with rope, and defendant instructed Michael and Charles how to tie

37.
up Mitchell’s hands. They followed his instructions and took Mitchell into the bedroom.
Defendant gave Michael and Charles more instructions, and they tied up Mitchell’s legs
and put him on the bed. In his postarrest statement in New Mexico, defendant said “we”
tied up Mitchell, inferring that he not only directed but participated in this act.
At some point in the bedroom, they went through Mitchell’s pockets and found the
keys to both the SUV and the RV. Mitchell pleaded for his life but defendant and the
others ignored him.
Michael stated that when they returned to the living room, someone said Mitchell
had to be knocked out or killed. Michael testified he went into the bedroom and hit
Mitchell on the head with the axe, but claimed he did not intend to kill him. Again, as
noted by the trial court, defendant implied in his postarrest statement that he was present
during this incident, because he said Michael hit Mitchell with the axe multiple times,
and defendant placed the axe under the sofa when Michael finished using it.
Michael discovered Mitchell was still alive and told defendant. Defendant again
took charge and directed what they were going to do. Even though they had the keys to
both vehicles and could have left, defendant told Michael “that it had to be done,” that
Michael had to kill Mitchell or defendant would harm his family.
Defendant and Michael went into the bedroom. Defendant held the loaded
pump-action rifle and Michael had the unloaded sawed-off rifle. Defendant instructed
Michael to wrap pillows around the unloaded sawed-off rifle to create a silencer.
Defendant handed Michael one round at a time so he could manually load that rifle, since
they did not have the clip or magazine.
Defendant remained in the bedroom, holding the loaded pump-action rifle, and
watched as Michael shot Mitchell twice in the head. In his postarrest statement,
defendant admitted he watched Michael shoot Mitchell. It was only after defendant
ensured that Mitchell was dead that defendant and the minors split up between Mitchell’s
two vehicles. Defendant drove away the SUV, followed by Michael in the RV.

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There is thus overwhelming evidence to support the trial court’s finding that
defendant was a major participant who acted with reckless indifference to human life. He
had numerous opportunities to leave the scene without harming Mitchell, but
intentionally set up the confrontation and, even after they found the keys to both the SUV
and RV, defendant declared that they had to kill Mitchell and made sure Michael
successfully completed the act.
IV. Defendant’s Additional Arguments
In his supplemental declaration on appeal, defendant stated that Michael was the
ringleader, that defendant never told Michael to do anything, Michael decided on his own
to break into Mitchell’s trailer and murder him, and the trial court should have not
believed Michael’s testimony for the prosecution at the evidentiary hearing because his
record showed he was a violent person.
As explained above, we review the trial court’s factual and credibility findings
after an evidentiary hearing for substantial evidence. (Clements, supra, 75 Cal.App.5th at
p. 298.) “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 [on appeal] is to determine whether there is any substantial
evidence, contradicted or uncontradicted, to support a rational fact finder’s findings
beyond a reasonable doubt.” (Ibid.) “Resolution of conflicts and inconsistencies in the
testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the
testimony is physically impossible or inherently improbable, testimony of a single
witness is sufficient to support a conviction.” (People v. Young (2005) 34 Cal.4th 1149,
1181.) There was nothing inherently improbable about Michael’s uncontested testimony
about defendant’s statements and conduct that showed his intent to kill Mitchell.
Also in his supplemental declaration, defendant claimed he wanted to “make my
own statement” at the evidentiary hearing, but his attorney “refused to allow me to say
anything” and told him “to remain silent during the hearing, so I complied.”

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“[T]he decision to place a defendant on the stand is ordinarily within the
competence and purview of trail counsel.” (People v. Hayes (1991) 229 Cal.App.3d
1226, 1231.) The defendant may exercise the right to testify over the objection of, and
contrary to the advice of, defense counsel. (People v. Duong (2020) 10 Cal.5th 36, 55.)
The trial court “ ‘ “may safely assume that a defendant, who is ably represented and who
does not testify is merely exercising his Fifth Amendment privilege against
self-incrimination and is abiding by his counsel’s trial strategy.” ’ ” (Ibid.)
In order to demonstrate a denial of the right to testify, however, the defendant
must assert that he communicated to trial counsel that he wanted to testify in court.
(People v. Hayes, supra, 229 Cal.App.3d at p. 1235.) In his supplemental declaration on
appeal, defendant asserted only that he wanted to “make a statement.” Defendant did not
declare that at the time of the evidentiary hearing, he told his attorney that he wanted to
testify, or that he understood that he would have been subject to cross-examination and
impeachment with his own postarrest statements, and the testimony from Michael and
Larry about what happened in Mitchell’s trailer. (See, e.g. People v. Bradford (1997) 15
Cal.4th 1229, 1332–1333.)17

17 The record shows defendant had a sufficient opportunity to consult with counsel.
Defendant consented to appear for the entirety of the evidentiary hearing via
videoconference from prison. After the last witness was excused, defense counsel asked
the trial court for time to consult with defendant about whether he was going to testify.
The trial court declared a recess and cleared the courtroom to permit counsel to speak
confidentially with defendant through the videoconference connection. After the recess,
defense counsel advised the trial court that there would be no more witnesses and the
defense rested.
Counsel thus had sufficient time to advise defendant that his testimony would be
impeached if he testified at the evidentiary hearing. In addition to the statements of his
accomplices, defendant also may have faced impeachment with his prior criminal record.
At his original sentencing hearing in 1993, the prosecutor stated that defendant had a
criminal record that included larceny of a weapon, he had been to state prison at least
two times in another state, and that the three minors stated defendant “egged the others
on” to commit the crime. When the trial court imposed sentence, it stated defendant had
five separate prior felony matters, including larceny of a gun, he was sentenced to prison

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DISPOSITION
The trial court’s order of April 3, 2025, denying defendant’s section 1172.6
petition after the evidentiary hearing, is affirmed.

five times in overlapping cases, and he was in and out of prison on numerous occasions
within a short period of time.

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