This is a darn good opinion by Judge Langhorne (sitting by designation from Napa County). Well done.
Kimiko Wilson gets convicted of murder and sentenced to life in prison. He might have been the actual shooter, or, perhaps, a different guy named Rauls might have been the shooter and Wilson merely guilty as a major participant aider and abettor; the prosecution argued both theories at trial. What we know is that the jury (1) found Wilson guilty of murder, and (2) was hung -- and hence didn't reach a verdict -- on the personal use enhancement. Which pretty much by definition means that everyone on the jury thought that Wilson was guilty, but some of 'em thought he was the actual shooter and some of 'em didn't. But that didn't matter given aider and abettor liability at the time.
Fast forward to the present day. Now it does matter. Because people who (in situations like this) are not the actual shooter can file a petition to be potentially resentenced.
So Mr. Wilson files precisely such a petition. But the trial court says, sorry, you were the actual shooter, beyond a reasonable doubt, so you're not eligible for relief.
At which point Mr. Wilson's lawyer says: "Hold on. Clearly the jury didn't think that, because they were hung on the personal use enhancement. You can't find something true beyond a reasonable doubt that conflicts with what the jury found. Precedent."
But Judge Langhorne is right. It'd be one thing if the jury found the personal use enhancement not true. A judge in a subsequent resentencing petition couldn't disagree and conclude otherwise. But that's not what the jury here found. It instead found nothing. It was hung. Some thought one way, some another.
That's not issue preclusion. A term that Judge Langhorne doesn't apply, but is essentially the relevant doctrine. When the jury doesn't decide something, then there's no binding finding, so the court can decide on its own.
Which is precisely what the trial judge did here. She reviewed the evidence and concluded, beyond a reasonable doubt, that Mr. Wilson was the actual shooter. End of story. As long as that finding has some substantial evidence behind it -- and it clearly does -- no reversal on appeal. No resentencing.
Totally right.
What struck me most about the case, however, was that, here, the trial judge on the resentencing petition was the original judge at Mr. Wilson's trial. Which, of course, makes sense. She was already at the trial and heard all the witnesses testify, and probably has a super good recollection of the thing. She's in a great position to decide whether Mr. Wilson was, in fact, the actual shooter. And her findings about credibility and the like are, quite rightly, given tons of deference on appeal.
That's great when the original trial judge is still around. But what do you do when the original judge has retired, or died, or otherwise unavailable? That's a toughie. Because, at that point, its not enough for the judge to merely review the trial transcript and the like. Sure, that'll set for the various evidence as well as the competing positions of the parties, and sometimes that'll perhaps be enough; e.g., if everyone at the trial agreed on what happened and the only issue was one of, say, mistaken identity.
But in cases like this one, that wasn't the fight. There was some testimony at trial that Wilson was the shooter, and contrary testimony that Rauls was the shooter. Simply reading the transcript doesn't enable a judge to decide who's telling the truth, or which side is right. For that, you'll need live evidence and live witnesses. Some of whom, in the interim, may have died, become unavailable, forgotten stuff, etc.
What do you do then? The alternatives there are a trial on the papers (totally lame) or a trial based upon the tiny smidgeon of live evidence still available (also totally lame).
In short, how are we supposed to get accurate findings when the original trial judge isn't available, or (God forbid) has largely forgotten the whole thing?
Seems tough.
Not at issue here, of course. Happily, here, the trial judge is still alive.
Still. Other cases: Not so easy. At all.
