¶1I respectfully dissent to the reduction of petitioner’s sentence from first to second degree murder. In my view, the district attorney satisfactorily explained the reason why, following a mistrial, an earlier stipulation was abandoned and the charges against petitioner were increased: The district attorney, after closer scrutiny of the case and further interviews of prosecution witnesses, now believed that petitioner, and not his codefendant, probably was the actual killer.
¶2The majority finds this explanation “not sufficient.” (Ante, p. 879.) By what authority may we simply reject the sworn statement of a public officer without even holding an evidentiary hearing to determine the truth or falsity of his averment?
¶3In the present case, petitioner’s conviction became final more than three years ago. Following issuance of an order to show cause in the superior court, the deputy district attorney who prosecuted the case filed an affidavit “under penalty of perjury” which alleged that (1) the original stipulation was the product of a “sense of fairness” arising from the fact that petitioner’s codefendant had been convicted of only second degree murder; (2) after reviewing the physical evidence and conversing with witnesses, the prosecutor came to believe that petitioner, not the codefendant, had fired the fatal *882shot and, accordingly, (3) he felt that a first degree murder charge was now appropriate. The superior court judge evidently believed the prosecutor in this regard, for he denied any habeas corpus relief.
¶4As previously indicated, the majority purports to find the prosecutor’s sworn statement “not sufficient.” The majority reasons that the declaration “does not specify any new fact or circumstance which led to the prosecutor’s reevaluation of the evidence” (ante, p. 879), but merely asserts a change of mind regarding the identity of the killer. The majority cites no authority holding that proof of a bona fide reevaluation of evidence, following a mistrial, is itself insufficient to rebut the presumption of vindictiveness. Such a holding is extremely dangerous, confining the prosecutor to his initial impressions of the case despite a subsequent insight or inspiration formed during the course of a reexamination of the available evidence. The prosecutor’s charging function necessarily must be fluid and flexible enough to permit such reevaluation. Surely, the trial court’s order of mistrial marked an appropriate time to undertake a fresh look at the evidence. The majority fails to explain why the mistrial order itself fails to qualify as the requisite “new fact or circumstance” leading to the prosecutor’s reevaluation of his case.
¶5The majority, casting doubt upon the prosecutor’s explanation for filing increased charges, relies upon his opening statement in the second trial to the effect that defendant “aided and abetted” the murder. This circumstance is a rather slender reed upon which to rest a charge of prosecutorial vindictiveness, especially in light of the prosecutor’s sworn denial Of that charge. A fleeting reference in the prosecutor’s opening statement to an aiding and abetting theory could indicate nothing more than that the prosecutor reused his earlier opening statement for the second trial rather than prepare an updated version, or that the prosecutor believed he would have less trouble convincing the jury of the aiding and abetting charge. The case was tried consistently with the theory that petitioner was the actual killer. Moreover, the prosecutor’s closing statement relied on both theories and summarized the evidence supporting each of them.
¶6In any event, the appropriate procedure where doubts exist regarding such factual matters is to order an evidentiary hearing. (See Twiggs v. Superior Court (1983) 34 Cal.3d 360, 374-375 [194 Cal.Rptr. 152, 667 P.2d 1165]; People v. Pope (1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) The majority’s suggestion that the People’s return to the order to show cause somehow failed to allege facts to rebut the presumption of vindictiveness is simply incorrect: The return is replete with denials of the vindictiveness charge and contains numerous factual assertions regarding the prosecutor’s true, nonvindictive motivation. For exam-*883pie, the return states that “The prosecutor could properly refuse to enter into the [renewed] agreement and his refusal does not amount to a display of vindictiveness .... The prosecutor based his refusal to reenter into the stipulation upon a review of the testimony offered at the first trial . . . .”
¶7Beyond relying upon, and reiterating, the prosecutor’s own sworn denial, what else were the People supposed to do to rebut the presumption or to gain an evidentiary hearing?
¶8I would deny the writ.