People v. Leighton CA2/7

Filed 1/19/23 P. v. Leighton CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B320082
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA226413-01)
v.
KENNETH C. LEIGHTON,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Larry P. Fidler, Judge. Affirmed.
Susan Morrow Maxwell, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_______________________
A jury in 2003 convicted Kenneth C. Leighton of the
first degree murder of Jamie Navaroli and April Mahoney,
two witnesses who were going to testify against Leighton in a
burglary case. On March 5, 2019 the superior court denied
Leighton’s petition for resentencing pursuant to Penal Code
section 1172.6 (former section 1170.95),1 ruling, in part, because
Leighton was not tried on a theory of felony murder or pursuant
to the natural and probable consequences doctrine, he had failed
to make a prima facie case for relief. We affirmed that order on
appeal. (People v. Leighton (Apr. 9, 2020, B297093).) On
March 29, 2022 the superior court summarily denied Leighton’s
subsequent postjudgment petition for resentencing pursuant to
section 1172.6, ruling Leighton could not file successive petitions
asserting the same claims and seeking the same relief.
No arguable issues have been identified following review of
the record by Leighton’s appointed appellate counsel. We also
have identified no arguable issues after our own independent
review of the record and analysis of the contentions presented by
Leighton in his supplemental brief. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Leighton’s Convictions for Special-circumstance murder
Leighton and Randall Williams were charged in an
information filed in February 2002 with the 1998 murders of
Navaroli and Mahoney (§ 187, subd. (a)) with special-
circumstance allegations that each victim was a witness to a
crime who was intentionally killed for the purpose of preventing
testimony in a criminal proceeding (§ 190.2, subd. (a)(10)), each
victim was intentionally killed by lying in wait (§ 190.2,
1 Statutory references are to the Penal Code.
2
subd. (a)(15)), and each defendant had been convicted of more
than one offense of murder in the first or second degree (§ 190.2,
subd. (a)(3)). It was further alleged that Williams had personally
and intentionally discharged a firearm, proximately causing the
deaths of Navaroli and Mahoney (§ 12022.53, subd. (d))—that is,
that Williams, not Leighton, was the shooter.
Leighton was convicted of both murders, and the jury found
true all three special-circumstance allegations. Leighton was
sentenced to two consecutive life-without-parole state prison
terms. We affirmed the convictions on appeal with a minor
modification to the sentence. (People v. Leighton (June 27, 2006,
B166126 [nonpub. opn.].)2
2. The January 22, 2019 Petition for Resentencing
Leighton filed his first petition for resentencing under
former section 1170.95 on January 22, 2019, shortly after the
effective date of Senate Bill No. 1437 (Stats. 2018, ch. 1015)
(Senate Bill 1437).3 The petition was heard by Judge Larry P.
2 Williams was convicted of the special-circumstances
murders of Navaroli and Mahoney in a separate jury trial and
given the same sentence as Leighton.
3 As is now well-known, Senate Bill 1437 modified the law
relating to accomplice liability for murder, eliminating the
natural and probable consequences doctrine as a basis for finding
a defendant guilty of murder (People v. Gentile (2020) 10 Cal.5th
830, 842-843) and narrowing the felony-murder exception to the
malice requirement for murder. (§§ 188, subd. (a)(3), 189,
subd. (e); see People v. Strong (2022) 13 Cal.5th 698, 707-708;
People v. Lewis (2021) 11 Cal.5th 952, 957.) Senate Bill 1437 also
authorized an individual convicted of felony murder or murder
based on the natural and probable consequences doctrine to
petition to vacate the conviction and be resentenced on any
3
Fidler, who had presided at Leighton’s trial. The court denied
the petition without appointing counsel or allowing briefing,
ruling Leighton had failed to make a prima case for relief. The
court explained, “In the murders for which [Leighton] was
convicted, the murders were found to be willful, deliberate and
premeditated. [¶] [Leighton] solicited [Williams] to murder
two witnesses against him in a burglary case. [¶] Two special
circumstances were found true—murder of a witness and lying in
wait. [¶] The case was not tried on a theory of either felony
murder or natural and probable consequences. [Leighton] was an
aider and abettor and a major participant.”
We affirmed the order on appeal, emphasizing that
Leighton did not contend he had been convicted of felony murder
or under the natural and probable consequences doctrine or the
superior court had erred in ruling he aided and abetted
two special-circumstance murders. Rather, he argued only that
the superior court could not deny a facially valid petition for
resentencing under former section 1170.95 without first
appointing counsel and affording the petitioner an opportunity to
be heard. (People v. Leighton, supra, B297093.) We rejected that
claim based on decisions from this and other courts of appeal
holding the superior court, before appointing counsel, could
examine readily available portions of the record of conviction to
determine whether the petitioner had made a prima facie
showing he or she came within the ambit of the statute—an
interpretation the Supreme Court subsequently disapproved in
People v. Lewis (2021) 11 Cal.5th 952 (Lewis).
remaining counts if he or she could not now be convicted of
murder because of these changes to the definitions of the crime.
(See Strong, at p. 708; Lewis, at p. 957; Gentile, at p. 843.)
4
The Supreme Court granted Leighton’s petition for review
on June 24, 2020 and deferred further action pending its decision
in Lewis. (See People v. Leighton, S262173.) On February 16,
2022, slightly more than six months after its decision in Lewis,
the Supreme Court dismissed its grant of review in Leighton’s
case—that is, the Court left in place our decision affirming the
denial of Leighton’s petition.
3. The May 14, 2019 Petition for Resentencing
Leighton apparently filed a combined petition for writ of
habeas corpus pursuant to People v. Banks (2015) 61 Cal.4th 788and for resentencing under section 1172.6 on May 14, 2019. The
superior court summarily denied the petition, explaining
identical claims had been considered and denied on March 5,
2019 and Leighton had not alleged any facts establishing an
exception to the rule barring reconsideration of claims previously
rejected in a postjudgment writ petition. Additional claims
directed to evidentiary rulings made at Leighton’s trial were
denied because they had been raised and rejected on direct
appeal.
4. The March 14, 2022 Petition for Resentencing
On March 14, 2022 Leighton filed yet another petition for
resentencing pursuant to section 1172.6. On March 28, 2022
Judge Fidler denied the petition without appointing counsel,
noting this court had affirmed the order denying Leighton’s first
section 1172.6 petition and ruling Leighton was not entitled to
file successive petitions.
Leighton filed a timely notice of appeal.4
4 Leighton also filed (unnecessarily) a request for a
certificate of probable cause in which he argued our decision
affirming the order denying his original petition for resentencing
5
DISCUSSION
In accord with the procedures described in People v. Cole
(2020) 52 Cal.App.5th 1023, review granted October 14, 2020,
S264278, we appointed counsel to represent Leighton on appeal.
After reviewing the record, appointed counsel did not identify any
arguable issues and so informed this court. Appointed counsel
advised Leighton on December 6, 2022 that she was filing a brief
stating she was unable to find arguable issues and that he could
personally submit any contentions he believed the court should
consider.
On January 6, 2023 we received a six-page typed
supplemental brief from Leighton in which he argued our prior
decision affirming the superior court’s denial of his initial
petition for resentencing should not preclude his subsequent
petition because the superior court in 2019 failed to follow the
procedures for appointment of counsel and briefing set forth in
Lewis, supra, 11 Cal.5th 952 and Senate Bill No. 775
(Stats. 2021, ch. 551, § 2) (Senate Bill 775) and the Supreme
Court’s decision in People v. Strong (2022) 13 Cal.5th 698 held a
felony-murder special-circumstance finding made prior to the
decisions in People v. Banks, supra, 61 Cal.4th 788 and People v.
Clark (2016) 63 Cal.4th 522 does not preclude a prima facie
showing for resentencing under section 1172.6. Neither
contention has any arguable merit.
Leighton is correct that the superior court erred in 2019 in
determining he failed to carry his burden of making a prima facie
case for relief without first appointing counsel, requiring the
was inconsistent with the holding of People v. Lewis, supra,
11 Cal.5th 952, as well as with the amendments to section 1172.6
made by Senate Bill No. 775 (Stats. 2021, ch. 551, § 2).
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prosecutor to file a response to the petition and providing
Leighton’s appointed counsel with an opportunity to file a reply,
as required by Lewis, supra, 11 Cal.5th 952 and Senate Bill 775.
However, the Lewis Court held a superior court’s procedural
errors prior to assessing whether a petitioner has made a
prima facie showing of entitlement to relief pursuant to section
1172.6, subdivision (c), is state law error only, reviewable for
prejudice under the harmless error standard of People v. Watson
(1956) 46 Cal.2d 818. (Lewis, at pp. 957, 973-974.) Specifically,
“a petitioner ‘whose petition is denied before an order to show
cause issues has the burden of showing “it is reasonably probable
that if [he or she] had been afforded assistance of counsel his [or
her] petition would not have been summarily denied without an
evidentiary hearing.”’” (Lewis, at p. 974.) Moreover, although
the superior court may not engage in judicial factfinding or make
credibility decisions prior to issuing an order to show cause,
under Lewis, “[t]he record of conviction will necessarily inform
the trial court’s prima facie inquiry under [former] section
1170.95, allowing the court to distinguish petitions with potential
merit from those that are clearly meritless.” (Lewis, at p. 971.)
Here, the jury could find Leighton guilty of special-
circumstance murder pursuant to section 190.2,
subdivision (a)(10) (intentional killing of a witness to prevent
testimony) and (a)(15) (intentional killing by lying in wait), only
if it found he had acted with the intent to kill—either as the
actual killer of Navaroli and Mahoney or, pursuant to
section 190.2, subdivision (c), as a person “who, with the intent to
kill, aids, abets, counsels, commands, induces, solicits, requests,
or assists any actor in the commission of murder in the first
degree . . . [when] one or more of the special circumstances
7
enumerated in subdivision (a) has been found to be true.”5 As
such, the record of conviction conclusively established that
Leighton’s petition was meritless and any procedural errors in
denying his petition—either in 2019 or 2022—were harmless.
(See People v. Harden (2022) 81 Cal.App.5th 45, 56 [petition for
resentencing may be summarily denied when, without weighing
conflicting evidence or making credibility determinations, jury’s
findings irrefutably established petitioner’s ineligibility for relief
as a matter of law].)
Similarly, although Leighton accurately summarizes the
holding of People v. Strong, supra, 13 Cal.5th 698, that decision
has no bearing on Leighton’s failure to make a prima facie case
for relief. As discussed, the special-circumstance findings in his
case were for killing witnesses, lying in wait and multiple
murders. There was no felony-murder special-circumstance
finding.
Because no cognizable legal issues have been raised by
Leighton’s appellate counsel or by Leighton or identified in our
independent review of the record, the order denying his petition
5 The current language of section 190.2, subdivision (c),
requiring proof of an intent to kill for a special-circumstance
finding for a person not the actual killer was identical in 1998,
when the murders were committed; 2002, when Leighton was
charged with the murders; and 2003, when he was tried and
convicted. The only exception is set forth in section 190.2,
subdivision (d), which permits a felony-murder special-
circumstance finding upon proof the person who solicited or
assisted in one of the serious felonies listed in section 190.2,
subdivision (a)(17), was a major participant in that crime and
acted with reckless indifference to human life. (See generally
People v. Mil (2012) 53 Cal.4th 400, 408-409.)
8
for resentencing is affirmed. (See People v. Cole, supra,
52 Cal.App.5th at pp. 1039-1040, review granted; see also People
v. Serrano (2012) 211 Cal.App.4th 496, 503; see generally People
v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979)
25 Cal.3d 436, 441-442.)
DISPOSITION
The postjudgment order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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