People v. Decoud CA2/4

Filed 9/16/22 P. v. Decoud CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR THE PEOPLE, B310245 (Los Angeles County Plaintiff and Respondent, Super. Ct. No. SA019351) v. BRIAN DECOUD, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Mark E. Windham, Judge. Affirmed. Kelly C. Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent. In 1995, a jury convicted defendant Brian Decoud of second degree murder (Pen. Code § 187, subd. (a)),1 and found that he personally used a 1 Undesignated statutory references are to the Penal Code. firearm in the commission of the crime (§ 12022.5, subd. (a)). We affirmed the judgment in an unpublished opinion in 1997,2 and the California Supreme Court denied review. In 2019, defendant filed a petition for resentencing under former section 1170.95, now section 1172.6.3 (Hereafter we will refer to the statute by its current designation, section 1172.6.) After an evidentiary hearing, the trial court denied the petition. Defendant appeals from that ruling. He contends that because the trial court relied on the transcript of the 1995 trial (there was no live testimony), this court must independently review the court’s decision on the same record, rather than apply the substantial evidence standard. Moreover, he challenges the sufficiency of the evidence to prove he aided and abetted the commission of second degree implied malice murder, and he also challenges the court’s application of the law regarding implied malice. We reject these contentions and affirm the denial of his petition for resentencing. FACTUAL BACKGROUND4 1. Prosecution Evidence 2 Our prior appellate opinion has not been made part of the appellate record. 3 Effective June 30, 2022, section 1170.95 was renumbered 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) 4 We recite the factual background based on the reporter’s transcript of defendant’s trial. 2 In February 1994, defendant (known as “Iceberg”) was living in room 6 and later room 16 at the Kings Lodge Motel on Venice Boulevard. During that period, Kermith Stanley Johnson, his girlfriend Regina Nixon, and his daughter Shadona Johnson were living in room number 12 at the Kings Lodge Motel.5 On occasion Kermith’s son, Stanley Johnson (“Little Stan” or “Grump”) also stayed with them at the Kings Lodge Motel. Defendant and Stanley each sold drugs out of their respective motel rooms. Kermith, who was friends with defendant, testified that defendant did not “regularly” carry a gun and never carried one while socializing …

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