Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 17, 2026 Get Citation Alerts Download PDF Add Note

People v. Humphrey CA3

California Court of Appeal

• Citations: None known
• Docket Number: C101906

• Precedential Status: Non-Precedential

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (36.8K)

• PDF

Combined Opinion

Filed 3/17/26 P. v. Humphrey CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for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

THIRD APPELLATE DISTRICT

(Sacramento)

THE PEOPLE, C101906

Plaintiff and Respondent, (Super. Ct. No. 02F02888)

v.

ROY LEE HUMPHREY,

Defendant and Appellant.

Defendant Roy Lee Humphrey appeals the trial court’s denial of his petition for
resentencing under Penal Code section 1172.6 after an evidentiary hearing. (Statutory
section citations that follow are to the Penal Code unless otherwise stated.) Counsel for
defendant filed a brief seeking our independent review of the matter pursuant to People v.
Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) to determine whether there are any
arguable issues on appeal. Separately, defendant filed a supplemental brief.
In his brief, defendant argues substantial evidence does not support the trial
court’s finding he remained guilty of felony murder as the actual shooter in an attempted

1
robbery. Defendant also argues he was improperly denied post-conviction discovery. He
asserts the trial court erroneously admitted police reports only for their impeachment
value. Defendant points to several alleged errors that took place in his trial. Finally,
defendant asserts the trial court and his trial attorney did not properly follow juvenile
court procedural rules during the original proceedings. Rejecting all of defendant’s
claims of error, we affirm the judgment.

FACTS AND HISTORY OF THE PROCEEDINGS
The amended information charged defendant with murder (§§ 187, subd. (a), 189),
attempted robbery (§§ 664/211), and assault (§ 245, subd. (a)(2)). As to the murder and
attempted robbery, the amended information alleged the enhancement defendant
personally used a firearm. (§ 12022.53, subd. (b).) The information further alleged the
murder was committed while the defendant was engaged in the attempted commission of
robbery. (§ 190.2, subd. (a)(17).)
We provide a summary of the underlying facts which are set forth in the appellate
opinion in defendant’s original appeal solely for context and do not otherwise use those
facts to resolve this appeal. (§ 1172.6, subd. (d); see People v. Humphrey (May 4, 2011,
C052744) [nonpub. opn.].)1 One of two men approached several other men playing
poker on their front porch. (Ibid.) When the approaching man asked to join in and was
refused, he pulled out a gun and demanded money. (Ibid.) After a scuffle, shots rang out
and one of the poker players was killed and another was injured. (Ibid.)
At his original trial in 2006, the jury found defendant guilty of murder (§§ 187,
subd. (a), 189); attempted robbery (§§ 664/211); and assault (§ 245, subd. (a)(2)). The
jury found the firearm and special circumstance allegations true. The trial court
sentenced defendant to 25 years to life in state prison for the murder plus 10 years for the

1 We incorporate this opinion by reference on our own motion.

2
attached firearm enhancement. The sentences on the remaining charges are not germane
to this appeal.
Defendant appealed, and a different panel of this court affirmed the judgment.
(People v. Humphrey, supra, C052744.)
In 2019, defendant filed a petition under section 1172.6 to have his murder
conviction vacated and for resentencing. The trial court denied his petition at the prima
facie stage, and a second panel of this court originally affirmed that decision but later
reversed and remanded the case for an evidentiary hearing after our Supreme Court
granted defendant’s petition for review and directed this court to reconsider the matter.
Upon remand at the evidentiary hearing, the prosecution submitted the original trial
transcript as evidence. Defendant sought to introduce several other documents:
“Defense Exhibits A through K” without any recitation as to why or how those items of
evidence were admissible.
At the hearing on the petition, the trial court stated it would use the District
Attorney’s letter to the Parole Board, which listed all of coconspirator Deshawn Fisher’s
juvenile adjudications and adult convictions to impeach Fisher. Fisher is also referred to
as Swanee in the trial transcript. The trial court also admitted the police reports proffered
by defendant, but because they were hearsay, the trial court only admitted them for their
impeachment value under Evidence Code section 1202. Defendant, who was proceeding
pro se, did not object to this ruling.
The trial court considered two of defendant’s discovery motions for evidence of
Fisher’s criminal history for purposes of impeachment, and evidence there was no
gambling business permit issued to the property at which the crime occurred. The trial
court denied defendant’s motions to compel discovery, stating it was unaware of any
authority to compel discovery in a section 1172.6 proceeding. In any event, the trial
court noted it had already agreed to consider all of Fisher’s prior convictions as
impeachment evidence, and it would assume there was no gambling license for the home

3
at which the altercation occurred, which defendant confirmed is what he was trying to
demonstrate through the discovery request.
As required by our standard of review, we describe the relevant evidence admitted
at the hearing on the petition (i.e., the trial testimony from the 31-day trial) in the light
most favorable to the judgment:
Around 8:08 p.m. on the evening of January 25, 2002, police officers were
dispatched to a residence. There, officers found the murder victim, V.J., lying on the
porch with two gunshot wounds and no pulse. A second shooting victim was transported
to the hospital for treatment.
Officers recovered a revolver, two live .38 caliber rounds, a black cap, and a jacket
on the ground in the driveway. Fisher’s DNA was found in the black cap. Officers
further located two bicycles outside the gate. A spent bullet was found on the porch
where the shooting occurred.
The two bullets recovered from the victim’s body were .38 caliber. The
criminologist was unable to ascertain whether these bullets were fired from the same gun.
The criminologist testified “only Rossi weapons manufactured by Emo Rossi (phonetic),
a Brazilian manufacturer, matched the class characteristics” of these bullets. The
criminologist excluded the gun found on the driveway as the source of the bullets from
the victim. Thus, the murder weapon remained at large.
B.V.S. testified he was sitting outside of M.J.’s house playing cards for money
with several people, including V.J. (the murder victim) and A.J. The stakes were about
$15 to $20 per person and the money was primarily in quarters and sitting on the table.
B.V.S. testified that the person who shot him and killed V.J. appeared suddenly
and wanted to play with them. B.V.S. did not know what the person said because the
person spoke English, which B.V.S. said he did not understand, but B.V.S. described the
tone of the conversation as angry. The intruder then pulled out a gun and A.J. pushed the
intruder in response. A.J. and V.J. attempted to get the gun from the intruder while the

4
other men at the table got up and ran away. B.V.S. hit the intruder with a chair two or
three times, aiming at the intruder’s gun. The night of the incident, B.V.S. told the
responding officers he swung his chair and hit the intruder on the head. The intruder shot
B.V.S. and then shot V.J.
B.V.S. described the shooter as a black man, about 19 or 20 years old, who
weighed about 140 pounds. When he observed one in-person lineup, B.V.S. reported he
did not recognize anyone and that the person who attacked him was a little taller and
skinnier than the men in the lineup. In a second in-person lineup, an officer reported
B.V.S. stated that either number four or number five was the shooter. B.V.S. testified he
did not write on the forms as he cannot write, and he did not tell the officers that the
shooter was number four or number five but rather pointed to number two -- defendant.
A.G. testified that he was also on the porch at M.J.’s home playing poker when a
strange person appeared. He first described him as a black man, five and a half feet tall,
and about 21 years old, and wearing a black jacket. In prior statements and testimony,
A.G. also described the shooter as six feet tall. He also variously reported his weight as
160 pounds, 120 pounds, and 130 pounds.
A.G testified his friends told him the man wanted to play with them. The man
then pulled a pistol out of his jacket and shot “towards the porch upwards.” When A.J.
and M.J. attempted to grab the pistol, the man shot V.J.
A.G. testified the man had a black .38 caliber gun. A.G. also observed B.V.S. hit
the shooter in the head with a chair. Next, the man shot B.V.S. A.G. testified he saw a
second black man out front by the gate, but when he gave a statement to a responding
officer at the time of the murder, he said had not seen this but learned it from other
sources of information. A.G. then ran away. When he returned about 10 minutes later,
he saw a .38 caliber pistol on the ground behind the house. Previously, A.G. told the
officer he did not see V.J. or B.V.S. get shot because he ran away.

5
R.G. testified he was also present with the men playing cards for money. The first
thing he remembered about the incident was that two people arrived on bicycles. One of
them came up to where they were playing and the other one stayed by the gate. The man
who approached said he wanted to play and A.J. told him he could not and told him to
leave. R.G. testified in an earlier proceeding that the first man had something shining in
his teeth. R.G. heard the man on the porch say he wanted money and then A.J. struck the
man in the face. At the scene of the incident, A.G. told the responding officer he heard
the young man demand in English, “Give me the money.”
At that point, R.G. turned around and saw a second man standing by the gate. The
second man came running in and R.G. started to fight with the second man. Two or three
seconds later, R.G. heard shots. The man R.G. was fighting with ran away into an
alleyway. R.G. noticed the man dropped something while they were fighting and when
R.G. found it, it was a revolver. The second man also lost his jacket and cap at the scene.
On his way back to the house, R.G. saw the first man with a gun running away in
the same direction as the second man. When he returned to the porch, V.J.’s body was on
the ground and B.V.S. was laying on the ground and had been shot in the leg. No one
else on the porch had a gun that night.
R.G. testified the first man was black, approximately 20 to 22 years old, and about
five foot ten to six feet tall, wearing a jacket and a cap. The second man was also black,
between 18 and 20 years old, and about five foot eight inches to five foot ten inches tall
with a normal build. At the scene of the murder, R.G. reported to the police that he heard
the first man say, “give me the money.”
When presented with two in-person lineups, R.G. was unable to identify anyone in
the first line up but indicated one of the men in the second line up resembled one of the
men involved (defendant), but he was not sure.
A.J. was the fourth man to testify about the poker game. He said a man came up
to the game from the street and said he wanted to play cards. Another man was standing

6
in the driveway with his bicycle. When A.J. and his brother said no, the man responded,
“I got the money, I want to play,” and then the man brought out a gun and started
shooting. The man then ran away.
A.J. testified that after the shooting started, the second man dropped his bike and
started to come up to the porch. R.G. jumped up to grab him.
A.J. described the shooter as approximately 19 to 20 years old, a “negro,” wearing
a black jacket. He described the other man as an African American who was not as tall
as the first man and approximately 17 years old.
The night of the murder, A.J. told officers he was not present at the murder
because he was afraid the person might hurt him. At a hearing prior to trial, he
affirmatively identified defendant as the shooter.
D.E., a woman that lived in the same house as defendant and who dated his sister,
testified she saw defendant with a handgun the day he got shot. She described the gun as
a revolver. Defendant told D.E. that his friend Fisher also had a revolver.
D.E. said defendant left the house the evening of the shooting. D.E. spoke with an
investigator in 2005 in a recorded interview and excerpts from that interview were played
to the jury.
D.E. told the investigator defendant left with Fisher either riding bikes or on foot.
When defendant returned later that night, he was bleeding from the head and leg.
Defendant told D.E. that he and Fisher “went to go play, uh, shoot dice or something . . .
and dudes like got into it,” and he got shot in the leg while scuffling with a guy. D.E.
also told the investigator that defendant had told her that he went over to rip some guys
off, it went bad, and he had shot himself in the leg with his own gun. She told the
investigator it was some Mexicans.
At trial, D.E. testified defendant told her he had been robbed, and he lost his wallet
during that robbery. Despite his claim, D.E. testified the wallet was not missing and she
saw it on the nightstand in his room. After he was arrested, officers found a worn black

7
wallet in defendant’s bedroom containing several items indicating the wallet belonged to
him.
The day of the murder, defendant was treated for a gunshot wound to the leg and a
closed head injury. Defendant told the nurse that he was assaulted, hit in the back of the
head, and had a gunshot wound to his leg. Defendant also told a responding officer he
was walking down the street and was hit from behind and his wallet was taken. A 911
call reporting this alleged crime was made at 8:59 p.m. on the day of the shooting. The
caller claimed the assault happened at approximately 6:59 p.m.
Conspirator Fisher was jointly charged for the murder. Fisher testified he knew
defendant for a couple months prior to the shooting and had seen defendant with a .38
caliber revolver. On the day of the shooting, he met up with defendant and the two left to
go pick up some money that was owed to defendant by “some Asians.” Defendant told
Fisher there might be some problems. The two rode bikes to get the money. Fisher had
six gold teeth in the front of his mouth that day.
On the way, defendant and Fisher discussed stopping to pick up a .38 caliber pistol
from a third man’s house. At the time Fisher was also armed. At trial, Fisher testified
defendant went into the third man’s house and came out with a pistol, gave it to Fisher,
and the two left. They then went to the Asians’ house where the Asians reportedly told
defendant they would pay him the money they owed him.
Next, the two men rode down the street and then went into a gate to another house
where defendant had said people often played cards. Fisher testified that when they were
about a block from the house, defendant told him they might be able to “lick ‘em, rob
them.” Fisher claimed he told defendant not to do it but rode along with him anyway.
Defendant walked up to the porch and started to talk to the victims Fisher described as
“some Mexicans.”

8
Next thing Fisher knew, he heard some commotion, looked up, and a Mexican hit
him in his face. Fisher fell off his bike and started fighting with that man. The man who
hit him pulled off Fisher’s jacket and then Fisher ran away. He then heard a couple shots.
Fisher told police substantially the same story in a phone call to detectives, twice
on the phone and once when he surrendered himself.
At trial, Fisher identified the pistol and hat that were found on the ground at the
scene of the crime as his. Fisher identified a photograph of a bicycle found at the scene
as the one he was riding and testified he left it at the scene. He also identified a
photograph of the mountain bike defendant was riding that night that was also found at
the scene.
Fisher claimed he did not see defendant again for a couple weeks after the
shooting. In that meeting, defendant told Fisher he “probably hurt somebody, and one of
them might have died.”
Prior to being arrested, Fisher heard that defendant accused Fisher of shooting
defendant in the leg. Fisher “felt it was wrong” for defendant to accuse him, and shortly
after he learned this, Fisher spoke with police and identified defendant as the shooter.
Although originally subject to the death penalty, Fisher pleaded guilty to
manslaughter for a stipulated 10-year term.
Defendant’s and Fisher’s fingerprints did not match any latent fingerprints
obtained at the scene.
The parties stipulated defendant had previously testified he never met Fisher prior
to being in court with him.
In the defense case, defendant’s mother testified Fisher had never been to her
house or been associated with defendant. She also testified D.E. was hostile to her family
after she broke up with the mother’s daughter.
She testified about the night defendant came home with a gunshot wound and head
wound and that his sister took him to the hospital. Defendant told her he had been

9
mugged. Later that night, she called 911 to report her son had been robbed. She also
testified defendant had two different wallets, only one of which was stolen. Defendant’s
mother said she had evicted Fisher’s relatives from the home they were living in because
they were not paying rent.
Defendant also presented the testimony of N.M. who said Fisher came home the
night of the shooting with another man, O.B. N.M. purportedly heard Fisher tell O.B.
that he would have to find somebody to cover up for him and she heard O.B. respond,
well, you better not say my name. N.M. also heard O.B. say he did not mean to shoot
anyone and that it had been an accident. N.M. also said Fisher and O.B. talked about
how they had robbed someone earlier that day and shot him. They talked about blaming
the robbery victim (i.e. defendant) for the shooting. She did not tell anyone this story for
over three years because she feared for her life and her children’s lives. N.M. also
testified she never saw defendant and Fisher together.
Defendant’s oldest sister, L.H., testified defendant came to her house and said he
had been shot and hit on the head. She also claimed she did not know Fisher, that
defendant did not speak of him, and that defendant never rode a bicycle.
Defendant’s other sister, E.H., also testified she had never seen defendant riding a
bicycle in his life. She also asserted defendant was unable to run more than half a block.
She knew who Fisher was, but she had never seen him at her house. She testified she
never knew defendant to have a gun or rob anyone. On the day of the shooting,
defendant came home and said he was shot, hit in the head, and robbed. She claimed
defendant had a different wallet after he was shot and robbed because she gave it to him.
M.C. testified the night of the shooting he noticed a lot of yellow tape on his drive
home from the store. Later that night, Fisher and defendant showed up at his house.
Fisher appeared nervous.
M.C. heard Fisher say to defendant, “Man, why you leave me.” In response,
defendant twice said, “I shot the mother fucker.” Fisher replied, “You still didn’t have to

10
leave me.” M.C. also heard defendant say, “I didn’t mean to leave you,” and that “I don’t
know if I killed the mother fucker, but I shot him.” Fisher also said that he had dropped
his gun when he was trying to fight someone off.
M.C. submitted a tip to police to collect the reward for information leading to the
arrest for the crimes. He recognized his son’s bike from the photograph on the flyer.
M.C. also said he went to the home where the murder was committed and spoke with the
people there. They said they knew it was defendant because he had been gambling with
them on a regular basis.
M.C. convinced Fisher to turn himself in. While they were driving to do so, they
saw defendant walking down the street. They stopped the car and Fisher got out of the
car and spoke with defendant. Defendant tried to persuade Fisher not to turn himself in.
In that conversation, M.C. testified he heard Fisher tell the defendant, “You know, you
shot yourself, so why you keep saying that I shot you?”
At the evidentiary hearing, the trial court identified the relevant issue as whether
“[defendant] could not presently be convicted of murder or attempted murder because of
changes to Sections 188 or 189 of the Penal Code made effective January 1st, 2019.”
The trial court continued, “Under Penal Code Section 189 murder perpetrated --
felony murder perpetrated or committed in the perpetration or attempt to perpetrate a
number of listed crimes, including robbery, that is felony murder, and then [section]
189(e) says, ‘A participant in the perpetration or attempted perpetration of a felony listed
in subdivision (A)’, which again includes robbery, ‘in which a death occurs is liable for
murder only if one of the following is proven.’ And (e)(1) states: ‘The person was the
actual killer.’
“[Section] 1172.6(d)(3) holds that at the hearing the burden of proof is on the
[p]rosecution to prove beyond a reasonable doubt that [defendant] is guilty of murder
under California law as amended by the changes to Penal Code Sections 188 and 189,
effective January 1st, 2019.

11
“The Court has read and considered the entire transcript in this case as well as the
exhibits submitted by [defendant]. Again, the record was in excess of 3,000 pages. The
Court’s also read and considered all of the briefing submitted by both parties.
“Although, there is not necessarily a single piece of definitive evidence or a quote
‘smoking gun’, after considering all of the evidence in this case in its totality, the Court
finds that the evidence that [defendant] was the actual shooter, was the actual killer, was -
- is and was overwhelming and such the Court is convinced beyond a reasonable doubt
that [defendant] was the actual killer in this offense or this case.” In light of this finding,
the trial court declined to consider defendant’s age. The trial court denied the petition.
Defendant timely appealed.

DISCUSSION
Under Delgadillo, we must “evaluate the specific arguments presented in
[defendant’s supplemental brief],” but we are not compelled to undertake an
“independent review of the entire record to identify unraised issues.” (Delgadillo, supra,
14 Cal.5th at p. 232.)

Substantial Evidence

In his supplemental brief, defendant argues insufficient evidence shows he was
guilty of felony murder as the actual killer. Defendant also argues this was not a robbery
gone bad, but a legal poker game where a fight broke out. Defendant claims the trial
court was not required to give collateral estoppel effect to the jury’s findings he
committed the murder in the context of an attempted robbery, and that because the law of
robbery has materially changed since his conviction (now requiring something be taken
from the victim), the trial court should not have relied upon the jury’s finding he
committed the murder while committing an attempted robbery.
We begin by noting nothing suggests the trial court based its ruling on the doctrine
of collateral estoppel, but rather, the court “read and considered the entire transcript in

12
this case” and the other evidence proffered to come to its findings anew. Thus, we
decline to address defendant’s arguments related to collateral estoppel and examine the
evidence presented to ascertain whether substantial evidence supports the trial court’s
findings. (See People v. Njoku (2023) 95 Cal.App.5th 27, 41 [After an evidentiary
hearing in the trial court, a court of appeal reviews the trial court’s denial of a section
1172.6 motion to determine if the ruling is supported by substantial evidence].)
Senate Bill No. 1437 (2017-2018 Reg. Sess.) was enacted “to amend the felony
murder rule and the natural and probable consequences doctrine, as it relates to murder,
to ensure that murder liability is not imposed on a person who is not the actual killer, did
not act with the intent to kill, or was not a major participant in the underlying felony who
acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
As relevant here, the bill amended section 189, subdivision (e). That section now
provides, “A participant in the perpetration or attempted perpetration of a felony listed in
subdivision (a) [which includes robbery] in which a death occurs is liable for murder only
if one of the following is proven: ¶ The person was the actual killer. ¶ 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. ¶ The person was a major participant in the
underlying felony and acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.”
In reviewing a trial court’s findings that the prosecution has proven defendant is
guilty of murder under current law, “[w]e review the trial judge’s factfinding for
substantial evidence. [Citation.]” (People v. Clements (2022) 75 Cal.App.5th 276, 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

13
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.” (Ibid.)
Ultimately, the question defendant presents boils down to two key issues. First, is
there substantial evidence to support the trial court’s findings beyond a reasonable doubt
he was the actual shooter? Second, is there substantial evidence to support the trial
court’s findings beyond a reasonable doubt defendant was engaged in an attempted
robbery at the time he killed the victim? We conclude the answer to both questions is
“yes.”
Defendant looks to the victims mixed descriptions of the shooter to assert
substantial evidence does not support the trial court finding that he was the actual shooter
in an attempted robbery.
As the trial court noted, there are multiple items of evidence that provide
substantial evidence to support the finding defendant shot and killed V.J.
First, it is uncontested that an African American man came up to the porch with a
gun while several men were playing poker and ultimately shot one of the poker players to
death.
While most of the men on the porch could not identify the shooter, B.V.S. claimed
he identified defendant as the shooter in the lineup. In addition, at a prior hearing another
of the victims affirmatively identified defendant as the person who shot him.
D.E.’s testimony provided further evidence defendant was involved in this killing.
According to her, defendant had a revolver the day of the shooting, and defendant left
with Fisher riding bikes or on foot that night. The men who appeared at the house where
the shooting took place arrived on bicycles

14
Defendant returned home later that night with a gunshot wound and a head wound
consistent with the victim’s statement he hit defendant in the head with a chair. D.E. also
testified defendant told her he went over to rip off some guys (i.e., “Mexicans”), and it
went bad. D.E. also cast doubt on defendant’s alibi claim he had been separately robbed
of his wallet as she testified his wallet had not been stolen and a wallet was found in
defendant’s room.
In addition to this evidence, M.C. testified defendant admitted to shooting
someone that night, twice claiming he had “shot the mother fucker.” Defendant also said,
“I don’t know if I killed the mother fucker, but I shot him.”
In addition, Fisher, defendant’s accomplice, put defendant at the scene of the
crime and identified him as the shooter. Despite defendant’s claim, the trial court did not
exclude this testimony but considered Fisher’s many prior convictions in considering
Fisher’s testimony.
Fisher testified he saw defendant with a .38 caliber revolver. He also testified the
night of the shooting, while the two were riding bikes defendant said that people played
cards at the victim’s home, and they could rob them. Fisher said defendant walked up to
the porch and started talking to the victims.
In our original opinion affirming defendant’s conviction, this court considered
whether Fisher’s testimony had the requisite hallmarks of corroboration to be considered
by the factfinder in this case. We wrote, “Under section 1111, ‘[a] conviction cannot be
had upon the testimony of an accomplice unless it be corroborated by such other evidence
as shall tend to connect the defendant with the commission of the offense; and the
corroboration is not sufficient if it merely shows the commission of the offense or the
circumstances thereof.’
“Corroborating evidence ‘ “is sufficient if it tends to connect the defendant with
the commission of the crime in such a way as may reasonably satisfy the jury that the
accomplice is telling the truth.” ’ (People v. Lewis (2001) 26 Cal.4th 334, 370.) Both

15
requirements must be met. The corroborative evidence must both connect the defendant
with the crime and satisfy the jury of the accomplice’s veracity. (People v. MacEwing
(1955) 45 Cal.2d 218 [, 224].)
“Independent corroborating evidence ‘ “ ‘is sufficient if it does not require
interpretation and direction from the testimony of the accomplice yet tends to connect the
defendant with the commission of the offense in such a way as reasonably may satisfy a
jury that the accomplice is telling the truth.’ ” ’ (People v. Davis (2005) 36 Cal.4th 510,
543, italics omitted.)” (People v. Humphrey, supra, C052744.) Based on that standard
and the identical record that was before the trial court here, this court has already
concluded the evidence was sufficient to connect defendant to the robbery and shooting
in such a way as might reasonably satisfy a factfinder that defendant’s accomplice,
Fisher, was telling the truth. (People v. Humphrey, supra, C052744.) We agree that
remains the case on this record.
While defendant argues inferences from the evidence in the light most favorable to
himself, that is not the applicable standard. Where the evidence is controverted, it is for
the trier of fact (the trial court) to sort out what it believes is true and what is not. Our
review ends if there is substantial evidence to support the trial court’s findings. We
conclude substantial evidence supports the trial court here.
Next, we turn to the question of whether there is substantial evidence the shooter
was engaged in a robbery. “Robbery is defined as ‘the felonious taking of personal
property in the possession of another, from his person or immediate presence, and against
his will, accomplished by means of force or fear.’ (§ 211.) An attempted robbery
consists of two elements: (1) the specific intent to rob; and (2) a direct, unequivocal, but
ineffectual, overt act towards the commission of the intended robbery.” (People v.
Burgess (2023) 88 Cal.App.5th 592, 603-604.)
Defendant asserts the evidence establishes that no money was stolen here. But
that is not an element of attempted robbery. Instead, attempted robbery requires the trial

16
court to find he had the intent to rob and committed an overt act towards the commission
of that crime. (People v. Burgess, supra, 88 Cal.App.5th at pp. 603–604.)
Here, defendant asserts the evidence “clearly proved that [there] was no[t] [an]
attempted robbery.” We disagree. R.G. said he heard defendant demand money while
holding a gun. B.V.S. saw the shooter speak angrily at the group with the gun in his
hand. A.J. saw the man say, “I got the money, I want to play” and then the man brought
out a gun and started shooting. Fisher testified defendant told him they could rob the
victims who played poker at this house and then veered towards the house where the
shooting took place. D.E. testified defendant told her he went over to rip some guys off
and that it went bad. This provides substantial evidence for the factfinder to find beyond
a reasonable doubt defendant intended to rob his victims and committed an overt act
towards that crime.
Defendant’s suggestion that this was an illegal gambling game and thus none of
the poker players had legal title to the money on the table is legally irrelevant. Title to
the property defendant intended to steal is not an element of attempted robbery in this
case. (People v. Burgess, supra, 88 Cal.App.5th at pp. 603-604.) Defendant’s reliance
on People v. Rosen (1938) 11 Cal.2d 147, 151 is misplaced. That case stands for the
proposition that a defendant who in good faith seeks to recapture his or her own money
the defendant lost in an illegal game lacks the intent to commit robbery. (See also
People v. Tufunga (1999) 21 Cal.4th 935, 947.) No evidence suggested defendant ever
entered this game or lost any money in it. Thus, he could not have been seeking to
recapture his own money in good faith as opposed to robbing the men at the table of their
stakes.
Finally, given that defendant was the actual shooter during a felony murder, the
trial court had no occasion to examine the possibility that defendant had diminished
capacity as a minor. That analysis is appropriate when examining a defendant’s
culpability as an accomplice who engaged in the act as a major participant who acted

17
with reckless indifference to human life, not as a principal who pulled the trigger.
(People v. Oliver (2023) 90 Cal.App.5th 466, 486.)

Hearsay

Defendant says the trial court erred in refusing to admit the police reports and the
District Attorney’s letter to the Parole Board concerning codefendant Fisher’s prior
record as substantive evidence rather than as impeachment.
The admission of evidence at a section 1172.6 evidentiary hearing is “governed by
the Evidence Code, except that the court may consider evidence previously admitted at
any prior hearing or trial that is admissible under current law, including witness
testimony, stipulated evidence, and matters judicially noticed.” (§ 1172.6, subd. (d)(3).)
Under Evidence code section 1200, “(a) ‘Hearsay evidence’ is evidence of a
statement that was made other than by a witness while testifying at the hearing and that is
offered to prove the truth of the matter stated. ¶ Except as provided by law, hearsay
evidence is inadmissible.” Under Evidence Code section 1202, “Evidence of a statement
or other conduct by a declarant that is inconsistent with a statement by such declarant
received in evidence as hearsay evidence is not inadmissible for the purpose of attacking
the credibility of the declarant though he is not given and has not had an opportunity to
explain or to deny such inconsistent statement or other conduct. Any other evidence
offered to attack or support the credibility of the declarant is admissible if it would have
been admissible had the declarant been a witness at the hearing.”
Defendant does not argue that this evidence is not hearsay. Indeed, police reports
are textbook examples of hearsay of written statements made out of court to prove the
truth of the matters asserted. (See e.g., People v. Cardenas (2025) 18 Cal.5th 797, 818.)
And having the court consider the documents as proving the matters asserted therein was
exactly his goal. Further, defendant failed to cite to the trial court any legal authority that

18
any of this evidence was admissible under an exception to the hearsay rule other than the
exception provided under Evidence Code section 1202.
And as noted by our Supreme Court in People v. Ramos (1997) 15 Cal.4th 1133,
“[a]s a condition precedent to challenging the exclusion of proffered testimony, Evidence
Code section 354, subdivision (a), requires the proponent make known to the court the
‘substance, purpose, and relevance of the excluded evidence . . . .’ This requirement
applies equally to establishing a hearsay exception. [Citations.]” (People v. Ramos,
supra, 15 Cal.4th at p. 1178.) Defendant’s failure to follow this rule forfeits this claim of
error. (Ibid.)

Original Trial Court Errors

Defendant attempts to raise several trial errors that are not cognizable on his
appeal from the section 1172.6 proceeding. These claims include that the jury was
improperly instructed, the trial court utilized an incorrect standard of proof, the original
trial court failed to properly follow the law concerning the trial of juvenile offenders, and
that his counsel provided ineffective assistance by not pursuing this latter issue.
“Section 1172.6 does not create a right to a second appeal, and [defendant] cannot
use it to resurrect a claim that should have been raised in his [direct] appeal.” (People v.
Berry-Vierwinden (2023) 97 Cal.App.5th 921, 936.) Whether and how the jury was
originally instructed, how the original proceedings were conducted, or how his original
trial counsel performed, has nothing to do with whether substantial evidence supports the
trial court’s finding that he was the actual shooter during an attempted robbery and could
still be convicted of felony murder despite the changes to the murder statute.

Discovery

Defendant next argues the trial court erred when it declared post-conviction
discovery is not available for a section 1172.6 petition. The specific information he
sought to discover was impeachment evidence as to Fisher’s prior convictions and the

19
lack of a gambling license for the home where the attack occurred. On this point, the trial
court stated, it was unaware of any authority to compel discovery in section 1172.6
proceedings and denied the motions on that basis.
Defendant is correct that section 1172.6 allows for post-conviction discovery.
(Garcia v. Superior Court (2024) 106 Cal.App.5th 1005, 1021-1022.) The trial court
thus erroneously concluded otherwise.
Any error, however, was harmless. The trial court specifically took judicial notice
of codefendant Fisher’s extensive criminal record recited in Exhibit E for purposes of
impeachment, including Fisher’s juvenile adjudications. The court also assumed that the
record would show no gambling license was issued at the property where the incident
took place, which was the point of defendant’s discovery request. This evidence has no
relevance to the question of whether defendant murdered the victim while attempting to
rob him. (Evid. Code, § 210 [“ ‘Relevant evidence’ means evidence, including evidence
relevant to the credibility of a witness or hearsay declarant, having any tendency in
reason to prove or disprove any disputed fact that is of consequence to the determination
of the action”].) Given that the trial court provided defendant with the full benefit of
these two items of evidence, no better result could be obtained by allowing additional
discovery.

20
DISPOSITION
The trial court’s order denying defendant’s petition for resentencing under section
1172.6 is affirmed.

_\s__________________
HULL, Acting P. J.

We concur:

_\s_________________
KRAUSE, J.

_\s__________________
BOULWARE EURIE, J.

21