Filed 12/9/21 P. v. Humdy CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES FLEETWOOD 

HUMDY,

Defendant and Appellant.

 B308820

 (Los Angeles County

 Super. Ct. No. VA020811)

APPEAL from an order of the Los Angeles Superior Court, 

John A. Torribio, Judge. Affirmed.

Danalynn Pritz, under appointment by the Court of Appeal,

for Defendant and Appellant. 
2

Rob Bonta, Attorney General, Lance E. Winters, Chief

Assistant Attorney General, Susan Sullivan Pithey, Assistant

Attorney General, David E. Madeo and Theresa A. Patterson, 

Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *

After an evidentiary hearing, the trial court denied the 

petition for resentencing under Penal Code section 1170.95 filed 

by James Fleetwood Humdy (defendant).1 Defendant argues this 

was error. It was not. We accordingly affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. The underlying crime

In July 1993, defendant went to Palm Springs with his 

girlfriend Joyce Mitchell (Mitchell), Mitchell’s four-year-old son 

DeJohn, and his friend Lauren Edward (Edwards). Defendant 

was a more established member of the Crips street gang, and 

Edwards—who was then 16 or 17 years old—was a newer gang 

member. Defendant’s moniker was “Joker.” 

The three were strapped for cash and were sleeping on the 

living room floor of the one-bedroom apartment where Mitchell’s 

aunt lived. Because Mitchell’s car had been impounded while 

they were in Palm Springs, they had no way back to Los Angeles, 

where they all lived. 

Ready to have them vacate her small apartment, Mitchell’s 

aunt arranged for defendant and the others to hitch a ride back 

to Los Angeles with one of the aunt’s “close friends” and 

coworkers, a woman named Malea Davidson (Davidson). 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

Davidson and her boyfriend, Peter Chase (Chase), were already 

planning to drive to Los Angeles, and offered to let them ride in 

the bed of their truck. 

In the mid-afternoon of Friday, July 2, 1993, the group 

headed back to Los Angeles in Chase’s truck. When Chase 

arrived in the South Los Angeles neighborhood where defendant, 

Mitchell, and Edwards lived, Chase stopped the truck in the 

street. Defendant hopped out of the back, pulled out a gun, and 

ordered Chase and Davidson out of the truck’s cab. Defendant 

directed them to the sidewalk, where he proceeded to shoot Chase 

twice in the head and to shoot Davidson once in the head and in 

the back. Chase died instantly; Davidson lived for only another 

few hours. Defendant and the others drove off in the truck, 

leaving Davidson to die. The group took Chase’s wallet, 

Davidson’s jewelry, and the money Davidson had from the 

paycheck she had gone to cash with Mitchell’s aunt earlier that 

day. 

The truck was recovered a few days later, doused in oil in 

an attempt to obliterate fingerprints. 

A few days later, defendant spoke with Mitchell and 

Edwards about needing to kill Mitchell’s aunt, who had spoken 

with the police after Davidson’s body was found. 

B. Prosecution, sentencing, and appeal

In 1994, the People charged defendant, Mitchell, and 

Edwards with the murders and robberies of Chase and Davidson 

(§§ 187, 211). The People further alleged two special 

circumstances—namely, that (1) defendant committed the 

murders in the course of the robberies (§ 190.2, subd. (a)(17)), and 

(2) defendant committed multiple murders (§ 190.2, subd. (a)(3)). 
4

The People charged defendant and Mitchell together; the People 

charged Edwards separately.

Following his arrest, Edwards told police that he had shot 

Chase and Davidson because Chase became “aggressive to Joker” 

and because Davidson was also “aggressing” Joker “with some 

shiny object that [Edwards] took to be a weapon.” Beyond 

indicating that he was eight feet from Chase and 14 to 16 feet 

from Davidson when he shot them, Edwards was “pretty vague” 

about the details of the shootings. The prosecutor introduced 

Edwards’s statement at Edwards’s preliminary hearing, but did 

so to establish that Edwards was at the scene and had 

participated in the robbery, and not to establish that Edwards 

was the shooter. As to Edwards’s claim of being the shooter in 

his postarrest statement, the prosecutor “stipulated” that the 

claim was “inherently suspect.”

Mitchell proceeded to trial separately, and a jury convicted 

her of both murders and robberies. 

Defendant went to trial in mid-June 1995. 

During defendant’s trial, Mitchell’s son DeJohn testified. 

By that time, he was six years old. He was first called as a 

witness on the second day of trial. In front of the jury, the 

prosecutor attempted to get DeJohn to take the oath or to 

promise to tell the truth, but DeJohn refused. During this 

colloquy, defendant gave DeJohn a “fixed glaring stare,” and 

DeJohn admitted to being afraid of defendant. The trial court 

instructed the jury to disregard anything DeJohn said while on 

the stand. The next day, DeJohn was questioned outside the

presence of the jury. This time, DeJohn told the prosecutor that 

he would “tell us what [he] really thought as to what happened” 

and would “tell us the truth,” and DeJohn then told the judge 
5

that he will “tell the truth.” The trial court concluded that 

DeJohn’s assurances constituted a promise to tell the truth, and 

qualified him as a witness. Back before the jury for the second 

time, DeJohn testified that (1) he had traveled in a truck with his 

“mama” (Mitchell), Joker, and “some other guy”; (2) the truck 

parked in the street; (3) Joker had a gun; (4) Joker ordered the 

white man and white woman out of the truck (Chase and 

Davidson were both Caucasian), told them to “get on the side 

walk” and to “lay down” or “get on the floor”; and (5) Joker then 

shot them. DeJohn identified defendant in the courtroom as 

Joker. 

Defendant was aware of Edwards’s statement to police 

purporting to take the blame for the shootings but elected not to 

introduce it after the trial court ruled that the prosecutor would 

be permitted to introduce any portions of the statement necessary 

to put in context any portions of Edwards’s statement defendant 

introduced.

Defendant then took the stand. He testified that Chase 

and Davidson had stopped to let them off, and that Edwards 

unexpectedly pulled out a gun and shot them. This testimony 

was inconsistent with defendant’s postarrest statement, where he 

said that Chase and Davidson had dropped him off and drove 

away alive and well.

The trial court instructed the jury that defendant could be 

found guilty of the murders as (1) the actual killer, (2) a person 

who, with the intent to kill, directly aided and abetted the actual 

killer, or (3) a person who participated in the felony robberies, 

and the killings occurred in the course of those robberies (felonymurder theory).
6

The jury found defendant guilty on all charges and found 

true both special circumstance allegations. 

The trial court sentenced defendant to two consecutive 

sentences of life without the possibility of parole, and imposed 

but stayed (under section 654) a five-year prison sentence for 

each robbery. 

Defendant appealed his convictions. As pertinent here, 

defendant challenged the sufficiency of DeJohn’s oath. In an 

unpublished decision, we affirmed defendant’s convictions, and 

specifically ruled that “DeJohn’s oath conformed to the statutory 

requirements.” (People v. Humdy (Dec. 19, 1996, B097322).) 

II. Procedural Background

On November 15, 2018, defendant filed a petition for a writ 

of habeas corpus that, among other things, invoked section 

1170.95. The trial court denied the petition on every ground 

except section 1170.95, construed that ground as a section 

1170.95 petition, appointed counsel for defendant, and 

entertained further briefing. After multiple rounds of briefing, 

the trial court in June 2020 concluded that defendant had 

established a prima facie showing of entitlement to relief under 

section 1170.95 and issued an order to show cause. At that time, 

the court stated that, at the upcoming evidentiary hearing, it 

would “use the relevant standard of beyond a reasonable doubt.” 

The court held an evidentiary hearing over two days in 

August and September 2020. In addition to the record of 

conviction from the 1995 trial, defendant submitted two 

additional items of evidence—namely, (1) a declaration from nowadult DeJohn, who declared that he heard gunshots but did not 

see who actually fired the gun, and (2) in-court testimony from 

the now-adult DeJohn, who testified that he “did not see who 
7

pulled the trigger” and did not remember seeing defendant 

holding a gun that night. The People introduced the transcript 

from a 1994 police interview of DeJohn, where he stated that he 

rode in the truck with his mother (Mitchell), Joker, and 

“somebody else,” the truck stopped in the street, Joker ordered 

the “man” and the “girl” out of the truck and told them to kneel 

on the ground, and then Joker shot the man and then the “girl.” 

At the September 2020 hearing, the parties offered 

extensive argument on the question whether defendant was 

entitled to relief under section 1170.95. The prosecutor argued 

that the jury’s prior special circumstance finding that the killings 

occurred during the robberies rendered defendant ineligible for 

relief as a matter of law. Defendant argued that the prior special 

circumstance was not binding. Instead, defendant argued that 

his entitlement to relief turned on whether there is “proof beyond 

a reasonable doubt that [defendant is] the actual shooter.” The 

court ruled that it would, “as the trier of fact,” make an 

“independent” and “de novo” determination whether the record of 

conviction (as “augment[ed]” at the evidentiary hearing) proved 

defendant was the actual shooter “beyond a reasonable doubt.” 

The court then responded to the arguments of both parties: It 

found defendant was “ineligible as a matter of law,” and “also 

[found] that he was, in fact, the actual shooter.”

After the trial court denied his motion for reconsideration, 

defendant filed this timely appeal. 

DISCUSSION

Defendant argues that the trial court erred in denying his 

petition for relief under section 1170.95. Specifically, he argues 

that the court erred (1) in finding that he was the actual killer 

because (a) the court used the wrong legal standard, and (b) the 
8

finding is in any event unsupported by substantial evidence, and 

(2) in declaring him ineligible for relief as a matter of law due to 

the jury’s special circumstance finding. Because our resolution of 

defendant’s first argument is dispositive, we have no occasion to 

reach his second. As to his first argument, we independently 

review whether the trial court used the proper legal standard and 

review the court’s factual finding for substantial evidence. 

(People v. Rodriguez (2020) 58 Cal.App.5th 227, 237-238.)

Section 1170.95 was enacted as part of Senate Bill No.

1437. With one exception, section 1170.95 retroactively 

overturns any murder conviction premised on any vicarious 

liability theory—that is, on the theory that the defendant is 

guilty of murder for a killing committed by someone else—unless 

the People prove that the nonkiller defendant personally acted 

with the intent to kill or was a major participant who acted with 

reckless disregard to human life. (§§ 1170.95, 188, 189, subds. 

(e), (f); People v. Gentile (2020) 10 Cal.5th 830, 852-853.) Section 

1170.95 uses a two-step procedure. In the first step, the nonkiller 

defendant seeking to vacate his murder conviction must make a 

“prima facie showing” of entitlement to relief by alleging that he 

was convicted of murder on a theory of vicarious liability and 

alleging that he did not act with the requisite personal intent 

(that is, that he did not act with the intent to kill and was not a 

major participant who acted with reckless disregard to human

life). (§ 1170.95, subds. (c), (a).) If the defendant so alleges, and 

if the record of conviction does not definitively establish the 

falsity of his allegations (People v. Lewis (2021) 11 Cal.5th 952, 

971 [relief may be denied without an evidentiary hearing “‘if the 

record, including the court’s own documents, “contain[s] facts 

refuting the allegations made in the petition”’”]), the trial court 
9

must issue an order to show cause and convene an evidentiary 

hearing “to determine whether the petitioner is entitled to relief” 

under section 1170.95. (§ 1170.95, subd. (d)(3).) At that hearing, 

the prosecutor bears the “burden” of “prov[ing], beyond a 

reasonable doubt, that the petitioner is ineligible” for relief. 

(Ibid.) As we held in People v. Fortman (2021) 64 Cal.App.5th 

217, 224-225, review granted July 21, 2021 S269228, this means 

that the defendant is entitled to relief unless “the trial court itself 

finds, beyond a reasonable doubt, that [the] defendant is guilty of 

murder on a still-valid theory of liability” because (1) he is the 

actual killer, (2) he acted with the intent to kill, or (3) he was a 

major participant and acted with reckless indifference to human 

life.

I. Did the Trial Court Apply the Proper Legal 

Standard?

Defendant asserts that the record is “ambiguous” and that 

the trial court did not “make [it] clear” that it was making an 

independent finding as to whether he was the actual killer. This 

assertion has the law backwards. The record need not 

affirmatively demonstrate the trial court’s application of the 

correct legal standard; instead, we presume the court applied the 

correct standard unless there is evidence to the contrary. (Peake 

v. Underwood (2014) 227 Cal.App.4th 428, 447; People v. Mack

(1986) 178 Cal.App.3d 1026, 1032; Evid. Code, § 664.) We decline 

defendant’s implicit invitation to invert the applicable standard 

of review in his favor.

Here, there is no evidence in the record indicating that the 

trial court applied the wrong standard; to the contrary, the record 

is abundantly clear that the court applied the correct standard. 

Throughout the course of the proceedings, the court repeatedly 
10

acknowledged that it was reviewing the record “independent[ly]” 

and “de novo,” that it was acting “as the trier of fact,” and that it 

was looking for proof “beyond a reasonable doubt.” What is more, 

the court’s ultimate ruling was a “find[ing] that [defendant] was, 

in fact, the actual shooter.” These words leave no doubt that the 

trial court was independently making a factual finding beyond a 

reasonable doubt, and nothing else the trial court said supports a 

contrary conclusion.

Defendant makes what boil down to two arguments in 

response. First, he argues that the prosecutor urged the court to 

look to the jury’s findings, that the trial court expressed some 

uncertainty regarding how much deference to give those findings, 

and that the trial court was willing to consider the prior appellate 

opinion in this case. This is an indication, defendant reasons, 

that the trial court was not making an independent finding of 

fact. We reject this argument because it conflates the two 

distinct questions before the trial court—namely, (1) did the 

jury’s prior special circumstance finding obviate defendant’s 

entitlement to relief as a matter of law, and (2) did the record of 

conviction plus the additional evidence presented at the section 

1170.95 hearing warrant an independent finding beyond a 

reasonable doubt that defendant was the actual killer? The court 

ultimately determined that the answer to each question was “yes” 

when it ruled that “[t]he court finds that [defendant] is ineligible 

as a matter of law . . . and also finds that . . . he was, in fact, the 

actual shooter.” The excerpts from the record defendant cites all 

pertain to the first question; because they deal with a separate 

question, they do not undermine the validity of the court’s finding 

as to the second question. Second, defendant argues that the 

trial court did not lay out any of its reasoning or subsidiary 
11

factual findings supporting its ultimate factual finding that 

defendant was the “actual shooter.” Defendant cites no authority 

to support the assertion that the trier of fact is obligated to 

provide such explication. A jury is certainly not required to share 

its thought processes and intermediary factual findings; we see 

no reason why the rule should be different for the trial court 

making a factual finding when ruling on a section 1170.95 

petition.

Accordingly, we conclude that the trial court applied the 

correct legal standard.

II. Does Substantial Evidence Support the Trial Court’s 

Finding That Defendant Was the Actual Killer?

Defendant argues that the record of conviction along with 

the additional evidence presented by him and by the prosecutor 

in the section 1170.95 proceedings does not support the trial 

court’s finding that he was the actual killer of Chase and 

Davidson. As noted above, we review this finding for substantial 

evidence. This obligates us to “view the evidence in the light 

most favorable to the . . . verdict, including ‘resolv[ing] conflicting 

inferences’ and credibility findings in favor of th[e findings].” 

(People v. Collins (2021) 65 Cal.App.5th 333, 344, citation 

omitted.)

Through this prism, substantial evidence supports the trial 

court’s finding that defendant was the person who actually killed 

Chase and Davidson. During the June 1995 trial, DeJohn 

testified that defendant had a gun, that he ordered Chase and 

Davidson out of the truck and directed them to “lay down” or “get 

on the floor,” and that he then shot them. This trial testimony 

was corroborated by what DeJohn said in his pretrial interview—

namely, that defendant ordered the “man” and the “girl” out of 
12

the truck at gunpoint, told them to kneel on the ground, shot the 

man first, and then shot the “girl.” DeJohn’s account is 

circumstantially corroborated by (1) the testimony of a nearby 

security guard and defendant’s own testimony that the woman 

screamed, which would indicate Davidson had time to scream 

after she saw Chase being shot first, and (2) defendant’s threats 

to kill Mitchell’s aunt a few days later for talking to the police. 

Defendant resists this conclusion with what collapses into 

four different arguments. 

First, defendant suggests that DeJohn’s testimony from the 

1995 trial should be disregarded or, at a minimum, accorded little 

weight due to the uncertainty as to whether DeJohn ever 

promised to tell the truth. We reject this suggestion. Defendant 

fully and thoroughly litigated the validity of DeJohn’s oath on 

direct appeal, and we upheld its validity. Our rejection of 

defendant’s argument is now law of the case. (Franco v. 

Arakelian Enterprises, Inc. (2015) 234 Cal.App.4th 947, 957 [“The 

doctrine of law of the case gives finality to appellate decisions, 

precluding courts from revisiting issues that ha[ve] been 

determined in earlier appellate proceedings between the same 

parties”].)

Second, defendant argues that DeJohn’s testimony from the 

1995 trial, even if it may be considered, is not entitled to any 

weight because it is “dramatically” and “wildly” “inconsistent” (1) 

with itself, (2) with DeJohn’s 2020 testimony that he “did not see” 

who killed Chase and Davidson, (3) with other evidence, 

including (a) Edwards’s confession to being the shooter, (b) the 

testimony of DeJohn’s great grandmother who told the cops that 

DeJohn had told her that “the other boy” did the shootings, (c) 

the fact that Mitchell (and not defendant) owned a .22-caliber 
13

handgun, and (d) defendant’s trial testimony denying being the 

shooter. Borrowing language from People v. Bassett (1968) 69 

Cal.2d 122, 139 (Bassett), defendant says that all of this evidence

contradicting DeJohn’s testimony at the 1995 trial does not 

“inspire[] confidence” in the trial court’s recent finding that 

defendant was the actual killer.

We reject this second argument for several reasons. To 

begin, this argument effectively asks us to conclude that DeJohn 

was not credible in 1995. That is beyond our purview. Bassett’s 

“inspiring confidence” language was doing no more than 

explaining the substantial evidence standard of review (ibid.), 

and it is well settled that, under that standard of review, we 

cannot question a jury’s implicit finding that a witness is credible 

“‘unless the [witness’s] testimony is physically impossible or 

inherently improbable.’” (People v. Brown (2014) 59 Cal.4th 86, 

106.) Here, nothing DeJohn testified to was physically 

impossible or inherently improbable. All defendant points to is 

inconstancies within DeJohn’s testimony or inconsistencies 

between DeJohn’s testimony and some of the other evidence at 

trial. Neither is enough to empower an appellate court to reject a 

jury’s finding that a witness was credible. (Clemmer v. Hartford 

Ins. Co. (1978) 22 Cal.3d 865, 878 [“[T]he fact that inconsistencies 

may occur in the testimony of a given witness does not . . . mean 

that such testimony is necessarily insufficient to support the 

verdict” because “[i]t is for the trier of fact to consider internal 

inconsistencies in testimony, to resolve them if this is possible, 

and to determine what weight should be given to such 

testimony”]; People v. Wetle (2019) 43 Cal.App.5th 375, 388 [“The 

testimony of a single witness is sufficient to uphold a judgment 

even if it is contradicted by other evidence”].) Even if we were to 
14

ignore the prohibition against second guessing DeJohn’s 1995 

trial testimony, we tend to agree with the trial court that the 

inconsistencies defendant highlights do not call into question the 

veracity of that testimony. Although DeJohn’s trial testimony 

was inconsistent regarding where he was coming from, where he 

sat, and whether he was asleep, DeJohn was consistent in his 

testimony that defendant held the gun, that defendant ordered 

the victims out of the truck and onto the sidewalk, and that he 

shot them. The fact that DeJohn was so young and that many 

parts of his testimony were not corroborated by others does not 

render the entirety of his testimony suspect. (People v. Harlan

(1990) 222 Cal.App.3d 439, 453 [“testimony may not be rejected 

simply because of [the witness’s] youth”]; People v. Scott (1978) 21 

Cal.3d 284, 296 [“The uncorroborated testimony of a single 

witness is sufficient to sustain a conviction”]; accord, People v. 

Giron-Chamul (2016) 245 Cal.App.4th 932, 960 [‘“[t]he fact that a 

very young witness makes inconsistent . . . statements does not 

indicate an inability to perceive, recollect, and communicate or an 

inability to understand the duty to tell the truth,’ even if some 

parts of the child’s testimony may be ‘inherently incredible’”].)

The trial court also had a basis for viewing DeJohn’s 2020 

recantation with a jaundiced eye given that DeJohn’s 1995 trial 

testimony came closer in time to the killings (and was strikingly 

consistent with DeJohn’s even more contemporaneous statements 

to police), and given that an adult whose mother has been in 

prison for the past 25 years is more likely to be guileful than a six 

year old. Further, the trial court had a sufficient basis not to 

treat Edwards’s confession as dispositive given that (1) the 

prosecutor at Edwards’s preliminary hearing put no credence in 

it, and (2) Edwards’s account that he was 8 to 16 feet away from 
15

Chase and Davidson when he allegedly shot them was, contrary 

to what defendant argues, not consistent with the forensic 

evidence that at least one of the shots at Chase, which may or 

may not have been one of the same shots that penetrated his 

skull, was from made from less than two feet away.2 What we 

are left with is defendant’s request to weigh all of this evidence 

differently than how the trial court did and to come to a different 

conclusion. We cannot and will not do so. (People v. Covarrubias

(2016) 1 Cal.5th 838, 890.)

Third, defendant argues that the prosecutor’s decision not 

to charge defendant with any enhancements based on defendant’s 

personal use of firearms undermines the trial court’s finding that 

defendant was not the actual killer. We reject this argument. 

Charging decisions are a function of numerous considerations in 

addition to the strength of the evidence (Sundance v. Municipal 

Court (1986) 42 Cal.3d 1101, 1132 [“[p]rosecutors have broad 

decisionmaking power in charging crimes” to which the judiciary 

shows “an extraordinary deference”]; People v. Birks (1998) 19 

Cal.4th 108, 134 [“prosecutorial discretion to choose, for each 

particular case, the actual charges from among those potentially 

2 Defendant argued to the trial court that the prosecutor was 

judicially estopped to deny the truth of Edwards’s confession to 

being the shooter and had also violated defendant’s due process 

rights by insisting, in 2020, that defendant was the actual killer 

after using the confession at Edwards’s preliminary hearing. The 

trial court “completely and totally reject[ed]” those arguments as 

being unsupported by the record, which showed that the 

prosecutors of defendant, Mitchell, and Edwards had consistently 

maintained that defendant was the shooter. Defendant has not 

appealed this issue, so we have no basis to dispute the trial 

court’s ruling.
16

available arises from ‘“the complex considerations necessary for 

the effective and efficient administration of law enforcement”’”]; 

People v. Andrews (1998) 65 Cal.App.4th 1098, 1102 [prosecutor 

“is vested with substantial discretion in selecting which cases to 

charge and at what level” and “can exercise broad discretion in 

charging decisions”]); where, as here, the trial court’s finding that 

defendant was the actual shooter of Chase and Davidson is 

supported by substantial evidence, the fact that the prosecutor 

did not allege a personal use enhancement does not undermine 

that finding.

Lastly, defendant implies that the trial court’s finding is 

suspect because the court did not read the 1995 trial transcript 

from cover to cover. We reject this argument as disingenuous. 

The trial court told the parties what portions of the transcript it 

had reviewed and repeatedly invited the parties to bring any 

additional portions of the transcript they wished the court to 

consider. Defendant never did, and also never asked the trial 

court to read the whole transcript. For defendant to now 

complain about a process to which he acquiesced below is unfair. 

What is more, it is of no consequence because we have read the 

transcript from cover to cover and find that the trial court’s 

finding is supported by substantial evidence.
17

DISPOSITION

The order denying defendant’s resentencing petition is 

affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

CHAVEZ