A jury’s inability to reach a verdict on firearm enhancement allegations did not preclude the trial court, in subsequent Penal Code section 1170.95 proceedings, from finding beyond a reasonable doubt that defendant was the actual shooter. In 2003, three people were shot, but one survived and identified Wilson as the shooter. At trial, Wilson testified that he had called a third party, Rauls, on behalf of the victims to set up a drug deal that went bad, and Rauls was the actual shooter. The prosecutor relied on the theory that Wilson was the actual killer, but also briefly argued felony murder culpability based on aiding and abetting a robbery. Wilson was found guilty of two counts of first degree murder and premeditated attempted murder, but the jury was unable to reach a verdict on the personal use and discharge firearm allegations. In 2019, Wilson filed a petition for resentencing under section 1170.95 (now 1172.6). After a (d)(3) evidentiary hearing, the trial court denied the petition. The court found the People established Wilson’s guilt beyond a reasonable doubt under alternative theories, including that Wilson was the actual killer. He appealed. Held: Affirmed. The victim’s identification of Wilson as the shooter (buttressed by the considerable circumstantial evidence) was substantial evidence supporting the trial court’s finding, and the finding was not inconsistent with the jury’s inability to reach a verdict on the firearm enhancement allegations. A not guilty verdict precludes subsequent prosecution on a charge; an inability to reach a decision on an enhancement allegation does not. The court distinguished People v. Cooper (2022) 77 Cal.App.5th 393, which held that “a trial court cannot deny relief in a section 1170.95 proceeding based on findings that are inconsistent with a previous acquittal when no evidence other than that introduced at trial is presented.” [Editor’s Note: Wilson also argued that defense counsel was ineffective for not arguing his youth and that the trial court did not sufficiently consider his youth in its section 1170.95 analysis. Since there was substantial evidence supporting the theory that Wilson was the actual killer, any ineffectiveness of counsel for failing to raise the issue of Wilson’s youthfulness for the major participant theory was not prejudicial, and any shortcoming in the court’s consideration of the issue was harmless.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/A163165.PDF