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Court of Appeal:
Apparent Sole Participant May File New Resentencing Petition
Majority, in Opinion by Edmon, Views Inmate as Ineligible for Relief, Based on Record, but Grants Him Opportunity to Try Again in Trial Court; Egerton Concurs Reluctantly, Points to Issues With Which, She Says, Trial Judges Must Deal
By a MetNews Staff Writer
The Court of Appeal for this district has granted an inmate 30 days within which to file a new resentencing petition even though the record below reveals that he was the sole participant in a slaying attempt, rendering him ineligible for relief under Penal Code §1172.6, with Justice Anne H. Egerton saying she concurs “with the remand to the trial court, but with considerable reluctance” and setting forth questions to which she said there are no available answers.
Presiding Justice Lee Edmon of Div. Three authored the majority opinion, filed Tuesday and not certified for publication. It conditionally affirms Los Angeles Superior Court Judge James D. Otto’s order denying a resentencing to Christian Leon who, in 2005, pled no contest to attempted murder, admitting personal gun use and personal infliction of great bodily injury.
Leon sought resentencing under legislation that wipes out the ancient “natural and probable consequences doctrine” under which an accomplice can be held criminally liable for an unplanned killing by a coconspirator. Edmon pointed out:
“Here, the record of conviction includes the information and preliminary hearing transcript- The information charged Leon alone with attempted murder and personal gun use and personal infliction of great bodily injury allegations….At the preliminary hearing, the victim, Ybarra, identified Leon as the only shooter. Thus, the information, coupled with the preliminary hearing transcript, demonstrates that Leon was prosecuted as and was the sole and direct perpetrator of the shooting such that his conviction was not based on the natural and probable consequences theory.”
Direction Given
The opinion nonetheless directs:
“If Leon files an amended petition for resentencing within 30 days after remand that pleads additional facts, the court shall vacate its order denying the original petition and consider the additional facts in determining whether Leon has made a prima facie case for relief under section 1172.6.”
The second bite at the apple was allowed because the California Supreme Court on March 3—in holding that a judge acting on a §1172.6 petition may take into account the preliminary hearing transcript—granted a request, made at oral argument, for leave to file an amended request for relief. That case is People v. Patton, in which Justice Martin J. Jenkins said:
“After clarifying the prima facie showing that section 1172.6 requires, we affirm the judgment but remand, at Patton’s request, to provide him an opportunity to amend his resentencing petition.”
Edmon wrote in Tuesday’s opinion that there would be a remand “[i]n light of Patton.”
Concurring Opinion
Egerton commented in her concurring opinion:
“In the 20 years since Leon was sentenced in accordance with his own agreement with the prosecution, there is no indication he has ever filed a petition for a writ of habeas corpus or in any way suggested it was some other person who shot the victim. When asked at oral argument what ‘new’ facts Leon could add to his check-the-box petition upon remand to the trial court, counsel replied Leon would have “to show it was somebody else who attempted to murder the victim.” This assertion presents a question: Can Leon state a prima facie case by submitting the same check-the-box form and attaching a declaration that merely says, ‘Some other guy did it. I don’t know his name.’?”
The remittitur is scheduled to be issued on Oct.27. Egerton proceeded on the assumption that Leon’s 30-day period within which to file a new petition would start to run upon the Superior Court’s receipt of it.
She queried:
“Does appellate counsel notify his or her client of that opportunity and deadline? Is it up to the court staff to locate the petitioner within the prison system and notify him or her? What if the petitioner files his supplemental petition two days late? Or 20 days late? Does the trial court have to accept it? What if the petitioner files a request for an extension of time beyond the 30 days to file a supplemental petition? Does the trial court have to grant it? Is that decision entirely within the trial court’s discretion, or are there factors the court should (or must) consider? And, if so, what are they?”
Does File Exist?
If Leon files a new or amended petition, Egerton noted, the Clerk’s Office would need to call up the file—but, she questioned, would it still exist after 20 years?
The justice asked:
“And if the court finds the petitioner has not made a prima facie case, does the petitioner have a right to appeal, and for appointment of counsel on appeal? It would seem he or she does. And then the case again comes to us on appeal, for briefing, oral argument, and the issuance of an opinion.”
She commented:
“No published case (and no unpublished case, for that matter) that I have been able to find addresses any of these questions. Accordingly, it will be up to our fellow bench officers in the trial courts to sort all of this out, and to comply with our remand orders while—at the same time, and with their heavy caseloads—ensuring that individuals who have not yet been convicted of any crime receive a timely and fair trial.”
The case is People v. Leon, B338022.
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