People 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Filed 10/27/26 P. v. Mitchell CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. 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 m