People v. Leggett CA4/1

Filed 12/8/21 P. v. Leggett CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079060
Plaintiff and Respondent,
v. (Super. Ct. No. CC079620)
MIEKO MICHELLE LEGGETT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Santa Clara County,
Arthur Bocanegra, Judge. Reversed and remanded with instructions.
Jonathan Grossman, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Rob Bonta, Attorney Generals, Lance E. Winters, Chief
Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney
General, René A. Chacón and Masha A. Dabiza, Deputy Attorneys General
for Plaintiff and Respondent.
INTRODUCTION
Mieko Michelle Leggett appeals from the summary denial of her
petition to vacate a first degree murder conviction under Penal Code section
1170.95.1 The trial court found she was not entitled to relief because the
record of conviction, including the jury’s true finding on a robbery-murder
special circumstance and the appellate opinion from the direct appeal,
established she was a major participant in the underlying felony who acted
with reckless indifference to human life. Leggett asserts the jury’s special
circumstance finding does not preclude relief and the court erred by relying
on the previous appellate opinion and resolving factual disputes without
issuing an order to show cause. She also contends her attorney provided
ineffective assistance of counsel by failing to object to the court’s
consideration of the appellate court opinion.
We follow this court’s recent decisions in People v. Wilson (2021) 69
Cal.App.5th 665 (Wilson) (Irion, J., O’Rourke, Acting P. J., Guerrero, J.) and
People v. Arias (2021) 66 Cal.App.5th 987 (Arias) (McConnell, P. J., Dato, J.,
Guerrero, J.), and conclude the felony-murder special circumstance finding,
which was made prior to People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark), does not categorically bar
Leggett from relief under section 1170.95.2 Further, as the California
Supreme Court recently clarified in People v. Lewis (2021) 11 Cal.5th 952,
959 (Lewis), it was permissible for the trial court to consider the previous
1 All further statutory references are to the Penal Code.
2 We acknowledge another panel of this court has previously reached the
opposite conclusion. (People v. Gomez (2020) 52 Cal.App.5th 1 (Gomez)
(O’Rourke, J., Benke, Acting P. J., Huffman, J.), review granted Oct. 14,
2020, S264033.)
2
appellate court opinion as part of the record of conviction, and Leggett’s
counsel did not provide ineffective assistance of counsel by providing a copy of
the opinion to the court. However, the previous appellate opinion in this case
is not sufficient, on its own, to establish whether the special circumstance
finding satisfied the standards set forth in Banks and Clark. We therefore
reverse the trial court’s order denying the petition and remand the matter for
resumption of proceedings.
FACTUAL AND PROCEDURAL HISTORY
The following short summary of the facts is taken from this court’s
opinion affirming the judgment in People v. Kibler (Dec. 4, 2003, H024455)
2003 WL 22872727 [nonpub. opn.].
Clarence Kibler shot and killed a gas station attendant in the early
morning hours of July 25, 2000. A customer found the attendant lying face
down on the floor in the bathroom surrounded in blood approximately an
hour and a half later.
The victim’s wrists were bound behind his back and his pants pockets
were turned inside out. There was a significant amount of trauma to his face
and a gunshot wound in his neck consistent with being shot at close range.
There were two distinct sets of footprints in the blood on the floor and larger
blood droplets near the toilet which indicated coagulation and that the
assault occurred over a period of time. In addition, there was a partially
smoked cigarette with mid-velocity blood spatter on top of the shoe prints
which indicated someone had begun smoking and then tossed the cigarette
onto the floor during the assault. There was toilet paper and a blood-soaked
t-shirt near the victim’s head. The police also found a dog repellant similar to
mace on two walls and the upper right shoulder of the victim’s shirt.
3
Leggett and Kibler used the victim’s credit card for gas later that same
morning and were subsequently identified and arrested. The police searched
their car and found a number of the victim’s belongings, shoes and clothing
with medium velocity blood spatter stains, a disassembled .25 caliber semi-
automatic handgun with five loose bullets, cigarettes, and a can of dog
repellant spray consistent with the spray found on the walls and the victim’s
body.
Video footage from the store’s surveillance system showed the
following: “The attendant . . . was inside the cashier area at various times.
At 1:22 a.m., a female [later determined to be Leggett] walked up to the
window and talked with the attendant. The woman left and walked towards
the restroom. At 1:24 a.m., [the attendant] left the cashier area and passed
in front of the window. Three minutes later, a person came back from the
bathroom area and passed the front window. Within the next minute, the
same person appears to walk back to the bathroom area. Five minutes later,
a black male with a shaved head and ‘roundish’ face, weighing about 200
pounds [later determined to be Kibler], entered the cashier area. The man
had a glove on his right hand. At 1:36 a.m., the same woman came up to the
window and looked at the male. The male was trying to open the cash
register. He turned and peered out the window, and held up his left hand
with his thumb and index finger together as if holding something towards the
window. Two minutes later, the female reappeared outside the cashier
window; moved back and forth; peered through the window watching the
activity of the male; looked back towards the bathroom; and gestured with
her arm towards the bathroom. The male passed by the window back
towards the bathroom.”
4
The cash register was locked when the police arrived, and the cash
remained inside. A latent fingerprint lifted from the pass-through drawer
inside the cashier’s booth was a match for Leggett.
A witness told police he saw a car stop at a fast-food restaurant next to
the gas station at around 1:13 a.m. A six-foot tall “ ‘African-American or
Hispanic’ ” male got out of the passenger side of the car. The man paced
around as if looking for something and then bent down and picked up an item
from the bushes. The car drove off and the man walked to the corner of the
fast-food restaurant and then towards the gas station.
Leggett testified in her own defense at trial and admitted being present
at the scene of the murder. According to Leggett, she and Kibler were selling
drugs together around the time of the murder. She was also using cocaine
and methamphetamine but she hid her habit from Kibler, who did not use
drugs. She prostituted herself to pay for the drugs and, the night before the
murder, she agreed to orally copulate the gas station attendant for money.
The attendant asked her to come back around 1:00 or 2:00 in the morning,
when business was slow.
Leggett testified she told Kibler she was going to sell drugs, but he
thought she was actually going to meet someone and insisted on going with
her. They argued and Leggett eventually agreed Kibler could come as long as
he waited out of sight while she made the deal. She dropped Kibler off at the
fast-food restaurant next door to the gas station and parked near the cashier
window. The attendant came out and led Leggett to the bathroom, unlocked
the door, and Leggett followed the attendant inside. Leggett took off her
blouse and, shortly thereafter, Kibler opened the door and entered the
bathroom.
5
According to Leggett, Kibler struck the attendant. She tried to stay out
of the way but also sprayed some mace she had in her purse at Kibler in an
effort to stop the attack. Kibler left the bathroom at one point and Leggett
tried to assist the attendant by putting pressure on a head wound to stop the
bleeding. Kibler returned and was upset that Leggett was helping the
attendant. Leggett testified he threatened to kill her if she ever left him and
then shot the attendant. Shocked, Leggett left the bathroom and went to the
car. She walked between the car and the cashier’s booth while Kibler tried to
open the cash register. She yelled for Kibler to leave the cashier’s booth and
they both got in the car and left.
In rebuttal, the prosecution presented an expert in modus operandi of
robberies. The expert testified one of the common methods used to rob a gas
station is for a female to lure the attendant out of the cash register area with
sex, allowing a partner to overpower and rob them.
The jury convicted both Kibler and Leggett of first degree murder and
found true a special circumstance allegation as to each that they committed
the murder while engaged in the commission of a robbery within the meaning
of section 190.2, subdivision (a)(17). In addition, the jury found true an
allegation that Kibler personally discharged a firearm causing the victim’s
death. The court sentenced Leggett to life without the possibility of parole.
This court confirmed the conviction.
In January 2019, Leggett filed a petition for resentencing pursuant to
section 1170.95. The trial court appointed counsel for Leggett and received
briefing on the petition.
The prosecutor asserted Leggett could not make a prima facie showing
on the petition because the special circumstance finding, along with the
relevant jury instruction, indicated she was a major participant in the
6
underlying felony who acted with reckless indifference to human life. The
prosecutor also relied on facts taken from the appellate opinion in the direct
appeal to assert Leggett was, in fact, a major participant who acted with
reckless indifference, even after Banks and Clark. The prosecutor further
argued Leggett could not make a prima facie showing because she submitted
only the “[b]are [b]ones” form declaration and she did not submit any
evidence in support of her petition.3
In response, counsel for Leggett asserted the special circumstance
finding did not preclude relief and that it was not appropriate to present
evidence at the prima facie stage. Counsel asserted Leggett had alleged all
facts necessary to meet the prima facie showing and any factual dispute
would need to be resolved after the issuance of an order to show cause.
Counsel provided a copy of the appellate opinion from the direct appeal but
argued “[i]t was not prepared using the inferences most favorable to Ms.
Leggett; thus, it should not be controlling at the prima facie stage.”
The trial court denied Leggett’s petition for resentencing without
issuing an order to show cause. The court concluded Leggett had not made a
prima facie showing she was entitled to relief and that “the record of
conviction supports, at a minimum, petitioner was a major participant in the
underlying felony and acted with reckless indifference to human life as found
true by the jury.” Further, the court found the jury’s finding was consistent
with the previous appellate court opinion, which characterized Leggett’s role
in the crimes as “significant.”
Leggett timely appealed.
3 The prosecutor also challenged the constitutionality of Senate Bill No.
1437 (2017–2018 Reg. Sess.) and section 1170.95. The trial court did not rule
on that basis and the parties now agree that both are constitutional.
7
DISCUSSION
I.
A True Felony-Murder Special Circumstance Finding Made Before Banks and
Clark Does Not Categorically Bar Relief Under Section 1170.95
Leggett asserts the jury’s finding on the felony murder special
circumstance does not preclude relief on her section 1170.95 petition. We
agree.
“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘to
amend the felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with the intent to
kill, or was not a major participant in the underlying felony who acted with
reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).) In
addition to substantively amending sections 188 and 189 of the Penal Code,
Senate Bill 1437 added section 1170.95, which provides a procedure for
convicted murderers who could not be convicted under the law as amended to
retroactively seek relief.” (Lewis, supra, 11 Cal.5th at p. 959.)
“Pursuant to section 1170.95, an offender must file a petition in the
sentencing court averring that: ‘(1) A complaint, information, or indictment
was filed against the petitioner that allowed the prosecution to proceed under
a theory of felony murder or murder under the natural and probable
consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree
or second degree murder following a trial or accepted a plea offer in lieu of a
trial at which the petitioner could be convicted for first degree or second
degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or
second degree murder because of changes to Section 188 or 189 made
8
effective January 1, 2019.’ ” (Lewis, supra, 11 Cal.5th at pp. 959–960; see
also § 1170.95, subd. (b)(1).)
If the petition meets these basic requirements, the trial court “proceeds
to subdivision (c) to assess whether the petitioner has made ‘a prima facie
showing’ for relief. ( § 1170.95, subd. (c).)” (Lewis, supra, 11 Cal.5th at
p. 960.) “If the trial court determines that a prima facie showing for relief
has been made, the trial court issues an order to show cause, and then must
hold a hearing ‘to determine whether to vacate the murder conviction and to
recall the sentence and resentence the petitioner on any remaining counts in
the same manner as if the petitioner had not . . . previously been sentenced,
provided that the new sentence, if any, is not greater than the initial
sentence.’ ( § 1170.95, subd. (d)(1).)” (Ibid.) At the hearing on the order to
show cause, “ ‘[t]he prosecutor and the petitioner may rely on the record of
conviction or offer new or additional evidence to meet their respective
burdens.’ ( § 1170.95, subd. (d)(3).)” (Ibid.)
Here, the trial court concluded Leggett was not entitled to relief
pursuant to section 1170.95 at least in part because of the jury’s felony-
murder special circumstance finding. This was error. There is no dispute
that Leggett was not the actual killer. The jury made a felony-murder
special circumstance finding pursuant to section 190.2, subdivision (a)(17),
and that finding required the jury to conclude Leggett either acted with the
intent to kill or was a major participant who acted with reckless indifference
to human life. However, the jury made that finding in 2002, well before the
California Supreme Court decided Banks and Clark and clarified the
meaning of the terms “major participant” and “reckless indifference to human
life” necessary to support such felony-murder special circumstance findings.
9
(Banks, supra, 61 Cal.4th at pp. 797–798, 803; Clark, supra, 63 Cal.4th at
pp. 608–624.)
There is currently a split in the appellate courts as to whether a
defendant is categorically precluded from relief under section 1170.95 based
on a felony-murder special circumstance finding that occurred before Banks
and Clark. (See Wilson, supra, 69 Cal.App.5th at pp. 672–673, 676–677.)
Some courts have found that such a special circumstance finding bars relief
under section 1170.95 and a defendant must instead pursue a claim that the
finding would not be supported by substantial evidence following Banks and
Clark through a petition for habeas corpus. (See Gomez, supra, 52
Cal.App.5th at pp. 16–17; People v. Galvan (2020) 52 Cal.App.5th 1134,
1142–1143, review granted Oct. 14, 2020, S264284.) Others have disagreed
and have, instead, concluded that a special circumstance finding does not
categorically bar relief under section 1170.95 because the Court in Banks and
Clark “ ‘construed the meanings of “major participant” and “reckless
indifference to human life” “in a significantly different, and narrower
manner.” ’ ” (People v. York (2020) 54 Cal.App.5th 250, 258; see also People v.
Smith (2020) 49 Cal.App.5th 85, 93–94, review granted July 22, 2020,
S262835; People v. Torres (2020) 46 Cal.App.5th 1168, 1180, review granted
June 24, 2020, S262011.)
As this court recently stated: “The Courts of Appeal have subjected the
issue at hand to vigorous debate and devoted countless pages of discussion on
the subject. The issue is currently under review by the Supreme Court as
well, so we will soon have clarity one way or the other. [Citation.] Given this
context, we need not add to the conversation with further extensive argument
or analysis. [¶] It will suffice for us to state that we are persuaded by the
logic of the courts that have concluded pre-Banks and Clark felony-murder
10
special-circumstance findings do not categorically preclude defendants from
obtaining resentencing relief under section 1170.95.” (Arias, supra, 66
Cal.App.5th at pp. 1003–1004.) Thus, we adopt the pertinent analysis of
those courts⎯including Wilson, supra, 69 Cal.App.5th 665 and Arias, supra,
66 Cal.App.5th 987⎯and incorporate them herein.
Here, as in Wilson, the jury found Leggett guilty of first degree murder
and found the felony-murder special circumstances true before our high court
provided additional guidance as to the factors relevant to those charges.
(See Wilson, supra, 69 Cal.App.5th at p. 672.) Thus, “[i]t is possible that a
jury considering [Leggett’s] conduct under the gloss of Banks and Clark could
find that the People did not meet their burden in proving the special
circumstances true.” (Id. at p. 685.) We therefore conclude the jury’s felony-
murder special circumstance finding does not bar Leggett from relief under
section 1170.95.
That does not end our inquiry, though. Unlike Wilson, the trial court in
this case went on to consider the record of conviction, including the previous
appellate opinion, and concluded the record supported the jury’s special
circumstance finding. We therefore consider whether the court’s additional
analysis provided a sufficient basis to deny the petition.
II.
The Appellate Opinion from the Direct Appeal Is Not Sufficient to Support the
Jury’s Special Circumstance Finding Following Banks and Clark
Leggett asserts the trial court’s additional analysis does not provide a
sufficient basis to deny the petition. She argues the trial court erred by
relying on the previous appellate opinion at all and, more specifically, by
relying on the opinion to improperly resolve factual disputes regarding her
role in the murder. We agree with Leggett but reject her additional claim
11
that her counsel was ineffective for submitting a copy of the previous
appellate opinion and not further objecting to the court’s consideration of it.
While the present appeal was pending, our high court issued its opinion
in Lewis and clarified to what extent the trial court may rely on the record of
conviction in determining whether a defendant has made a prima facie
showing on a petition for resentencing pursuant to section 1170.95.4 (Lewis,
supra, 11 Cal.5th at pp. 970–972.) As the Court in Lewis explained, the “trial
court can rely on the record of conviction in determining whether that single
prima facie showing is made,” and appellate opinions “are generally
considered to be part of the record of conviction.” (Id. at pp. 970, 972.)
Further, “[t]he record of conviction will necessarily inform the trial court’s
prima facie inquiry under section 1170.95, allowing the court to distinguish
petitions with potential merit from those that are clearly meritless. This is
consistent with the statute’s overall purpose: to ensure that murder
culpability is commensurate with a person’s actions, while also ensuring that
clearly meritless petitions can be efficiently addressed as part of a single-step
prima facie review process. (See Stats. 2018, ch. 1015, § 1, subd. (f).)” (Id. at
p. 971.)
However, “the prima facie inquiry under subdivision (c) is limited. Like
the analogous prima facie inquiry in habeas corpus proceedings, ‘ “the court
takes petitioner’s factual allegations as true and makes a preliminary
assessment regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue an order to
show cause.” ’ [Citation.] ‘[A] court should not reject the petitioner’s factual
allegations on credibility grounds without first conducting an evidentiary
4 We asked the parties for supplemental briefing regarding the impact of
Lewis on this case, and we have received and considered their responses.
12
hearing.’ ” (Lewis, supra, 11 Cal.5th at p. 971.) Specifically, with respect to
appellate opinions, the Court cautioned the probative value “is case-specific,
and ‘it is certainly correct that an appellate opinion might not supply all
answers.’ [Citation.] In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in ‘factfinding involving
the weighing of evidence or the exercise of discretion.’ ” (Id. at p. 972.)
As the court in Lewis clarified, it was permissible for the trial court to
consider the appellate court opinion as part of the record of conviction and,
thus, the court did not err by doing so. (Lewis, supra, 11 Cal.5th at p. 972.)
Further, although Leggett’s counsel did not have the benefit of the Lewis
decision, he appropriately raised many of the same limitations regarding the
application of the opinion in the context of the section 1170.95 petition in his
briefing and at the hearing on the petition. We therefore conclude Leggett’s
counsel did not provide ineffective assistance of counsel. In any event, and
contrary to the trial court’s findings, the previous appellate opinion is not
sufficient, on its own, to resolve the factual disputes at issue in this case and,
therefore, remand is appropriate.
The trial court found the jury’s special circumstance finding was
“consistent with the appellate court’s opinion, as well as the appellate court’s
explanation that the petitioner’s role in the murder was significant.” The
court relied upon the following portion of the appellate opinion to support its
conclusion:
“Contrary to Leggett’s suggestion that her participation was
minimal, the evidence showed that her role in [the attendant’s]
murder was significant. Leggett purposely went to the gas
station to solicit [the attendant] to engage in an act of
prostitution. She arranged to return when [the attendant] was
alone and vulnerable. When she returned, she left Kibler, a 6-
foot, 200 pound male, at the Kentucky Fried Chicken parking lot.
In the meantime, Leggett drove to the gas station and purposely
13
lured [the attendant] away from the security of his cashier booth.
She set the stage for the brutal attack on [the attendant] that
followed when Kibler burst into the bathroom. Leggett not only
stood by and watched, but also sprayed [the attendant] with dog
repellant to disable him. Then, when Kibler left the bathroom
and entered the cashier booth, Leggett acted as a ‘lookout’ to
ensure that [the attendant] did not leave the bathroom. After
Kibler shot [the attendant] in the neck, Leggett drove the
‘getaway’ car. Leggett may not have struck the blows that lead to
[the attendant’s] death or pulled the trigger on the gun, but she
was not a passive participant either.”
Although the passage characterizes Leggett’s participation as
“significant,” the appellate court was not addressing the conviction itself, or
the special circumstance finding, and was, instead, considering Leggett’s
assertion “that her sentence was disproportionate to her culpability.” Thus,
the appellate court did not consider whether the evidence supported the
jury’s special circumstance finding, and certainly did not consider whether it
would continue to support such a finding following Banks and Clark.5 (See
5 In Banks, the Court clarified that the following questions are relevant
when determining whether the defendant was a major participant: “What
role did the defendant have in planning the criminal enterprise that led to
one or more deaths? What role did the defendant have in supplying or using
lethal weapons? What awareness did the defendant have of particular
dangers posed by the nature of the crime, weapons used, or past experience
or conduct of the other participants? Was the defendant present at the scene
of the killing, in a position to facilitate or prevent the actual murder, and did
his or her own actions or inaction play a particular role in the death? What
did the defendant do after lethal force was used?” (Banks, supra, 61 Cal.4th
at p. 803.) Further, following Clark, whether the defendant knew that a gun
would be used during the felony, whether the defendant “ha[d] the
opportunity to restrain the crime or aid the victim,” and “the defendant’s
knowledge of his or her confederate’s propensity for violence” are relevant
factors, among others, in determining whether the defendant acted with
reckless indifference to human life. (In re Scoggins (2020) 9 Cal.5th 667, 677,
citing Clark, supra, 63 Cal.4th at pp. 618–623.)
14
Wilson, supra, 69 Cal.App.5th at p. 685 [explaining that the pre-Banks and
Clark requirement of “ ‘substantial’ ” participation “ ‘in criminal activities
known to carry a grave risk of death’ ” for felony murder liability “were
nebulous” and insufficient].)
Further, without the assistance of Banks and Clark, Leggett’s counsel
did not have reason to develop or argue the factors set forth in those cases to
the jury. Similarly, Leggett also did not have the benefit of Banks and Clark
when she filed the direct appeal, and, perhaps as a result, did not assert the
evidence was insufficient to support the jury’s special circumstance finding.
Thus, as noted, the appellate court was not considering the Banks and Clark
factors when it characterized Leggett’s participation as “significant.”
Further still, as Leggett’s counsel on the petition pointed out, the
appellate court views the evidence and presents the facts in the light most
favorable to the judgment. (See People v. Smith (2005) 37 Cal.4th 733, 739;
People v. Avanessian (1999) 76 Cal.App.4th 635, 637 [“As mandated by the
traditional rule governing appellate review, we recite the evidence in the
light most favorable to the judgment.”].) Thus, the appellate court
appropriately relied on evidence supporting its conclusion that Leggett’s
participation was “significant,” while largely disregarding the evidence
Leggett presented in her own defense. In turn, then, the trial court relied on
that description of the evidence to deny Leggett’s petition for resentencing.
As the Court stated in Lewis, the “trial court should not engage in ‘factfinding
involving the weighing of evidence or the exercise of discretion’ ” at the prima
facie stage. (Lewis, supra, 11 Cal.5th at p. 972.) But the trial court
effectively did that here, when it relied on the previous appellate court’s
characterization of disputed facts.
15
The People contend the issue of whether the record of conviction
supports the jury’s special circumstance finding even after Banks and Clark
is a matter of law that we can independently resolve on appeal. “[T]he
application of Banks and Clark to a given set of facts ultimately presents an
issue of law,” such that the appellate court should undertake an
individualized review of the record of conviction to determine whether the
special circumstance finding satisfies the Banks and Clark standards.
(People v. Secrease (2021) 63 Cal.App.5th 231, 255 (Secrease), review granted
June 30, 2021, S268862; accord Wilson, supra, 69 Cal.App.5th at p. 686;
Arias, supra, 66 Cal.App.5th at pp. 1004−1005.) However, when, as here, the
record of conviction before the court “consists almost entirely of what we can
discern from [the appellate opinion in the direct appeal]” and it is “too sparse
to make a definitive assessment of that issue one way or another,” remand is
proper. (Secrease, at p. 261; see also Wilson, at p. 686 [declining to conduct a
review under Banks and Clark on appeal and clarifying the trial court need
not rely solely on the previous appellate opinion]; Arias, at pp. 1005−1006
[remanding for trial court to conduct a sufficiency of the evidence review of
the full record of conviction because the appellate opinion did not address the
vast majority of the actus reus and mens rea factors set forth in Banks and
Clark].)
Accordingly, we remand the matter to the trial court to consider the
issue “in light of the full record of conviction, including the trial evidence.”6
6 The record on appeal indicates the trial transcript was unavailable, at
least as of September 2019, when Leggett filed her reply to the prosecutor’s
opposition. It is unclear what other portions of the record were available to
the trial court, or if the trial transcript could be obtained through some other
means. The parties may address the availability of the trial record, and its
impact on the petition, on remand.
16
(See Secrease, supra, 63 Cal.App.5th at p. 261; accord Wilson, supra, 69
Cal.App.5th at p. 686; Arias, supra, 66 Cal.App.5th at pp. 1005−1006.) On
remand, the trial court must determine whether Leggett has made a prima
facie showing on her petition, notwithstanding the jury’s special circumstance
findings. As our high court recently clarified, “the ‘prima facie bar was
intentionally and correctly set very low.’ ” (Lewis, supra, 11 Cal.5th at
p. 972.) “Thus, the trial court should issue an [order to show cause] unless
the [full] record of conviction unequivocally negates [Leggett’s] contentions,
rendering [her] unable to meet [her] burden.” (Wilson, supra, 69 Cal.App.5th
at p. 687.)
DISPOSITION
The order denying Leggett’s petition for resentencing pursuant to
section 1170.95 is reversed and the matter is remanded to the trial court for
further proceedings consistent with this opinion.
DO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
17