P. v. Leighton

Filed 4/9/20 P. v. Leighton CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
KENNETH LEIGHTON,
Defendant and Appellant.
B297093
(Los Angeles County
Super. Ct. No. BA226413)
APPEAL from an order of the Superior Court of Los
Angeles County, Larry P. Fidler, Judge. Affirmed.
Tracy A. Rogers, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Acting
Senior Assistant Attorney General, Amanda V. Lopez and
Theresa A. Patterson, Deputy Attorneys General for Plaintiff and
Respondent.
_________________________

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INTRODUCTION
Kenneth Leighton appeals from the superior court’s order
denying his petition under Penal Code section 1170.95,1 which
allows certain defendants convicted of murder under a felony
murder or natural and probable consequences theory to petition
the court to vacate their convictions and for resentencing.
Leighton argues that his petition stated a prima facie case for
relief under the statute and that the superior court erred in
denying the petition without a hearing and without appointing
him counsel. Because Leighton was not convicted under a felony
murder or natural and probable consequences theory, he did not
state a prima facie case for relief under section 1170.95.
Therefore, the superior court did not err in denying his petition.
PROCEDURAL AND FACTUAL BACKGROUND
A. A Jury Convicts Leighton and a Co-defendant on Two
Counts of First Degree Murder with Special
Circumstances, and This Court Affirms
In 2003 a jury convicted Leighton and his friend Randall
Williams of murdering Jamie Navaroli and April Mahoney, two
witnesses who were going to testify against Leighton in a
burglary case. (People v. Williams (June 27, 2006, B166126)
[nonpub. opn.].) After giving statements to the police about the
burglary, Navaroli and Mahoney hid first in a motel and then at
a friend’s house, where Williams found them and shot them with
a nine-millimeter handgun. Navaroli died at the scene; Mahoney
1 Statutory references are to the Penal Code.

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died several days later, on Christmas Eve, although she
identified Williams as the shooter before she died.
While Navaroli and Mahoney were hiding from Leighton,
witnesses heard Leighton say Navaroli “was dead because that’s
what happens to rats”; “When I see Jamie, he’s dead”; “Jamie is
finished” and “will be dealt with”; referring to Navaroli’s death,
“[L]et’s just say snitches belong in ditches”; and, referring to
Mahoney’s death, “Well, you can’t leave any witnesses.” When
Mahoney died, Leighton said, “Do you know what I got Jamie for
Christmas? I got him April.” After the police arrested Williams,
Leighton made deposits to Williams’s inmate trust account and
accepted 23 collect telephone calls from Williams. (People v.
Williams, supra, B166126.)
The jury convicted Leighton of murdering Navaroli and
Mahoney on the theory he aided and abetted Williams. The jury
also found true the special circumstance allegations of lying-in-
wait, multiple murders, and killing of witnesses. The trial court
sentenced Leighton to two consecutive terms of life imprisonment
without the possibility of parole. In 2006 this court affirmed his
convictions. (People v. Williams, supra, B166126.)
B. The Superior Court Denies Leighton’s Petition for
Resentencing
In January 2019 Leighton filed a petition for resentencing
under section 1170.95. Although the petition is not in the record,
a minute order reflects that the court denied it in March 2019
without having a hearing and without appointing counsel. The
court ruled Leighton was not eligible for relief under section
1170.95 because he “failed to make out a prima facie case for
relief.” The court stated: “In the murders for which [Leighton]

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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.” Leighton timely
appealed the order denying his petition.
DISCUSSION
Senate Bill No. 1437, which became effective on January 1,
2019 (see Stats. 2018, ch. 1015, § 4), amended “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); see People v. Larios (2019) 42
Cal.App.5th 956, 964.) Among other things, Senate Bill No. 1437
added section 189, subdivision (e), which provides that a person
is liable for murder “only if one of the following is proven: [¶] (1)
The person was the actual killer. [¶] (2) The person was not the
actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted
the actual killer in the commission of murder in the first degree.
[¶] (3) The person was a major participant in the underlying
felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.” (See Larios, at
p. 964.)

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Senate Bill No. 1437 also added section 1170.95,
subdivision (a), which provides that “[a] person convicted of
felony murder or murder under a natural and probable
consequences theory may file a petition with the court that
sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining
counts when all of the following conditions apply: [¶] (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. [¶] (3) The
petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective January
1, 2019.” (§ 1170.95, subd. (a); see People v. Gutierrez-Salazar
(2019) 38 Cal.App.5th 411, 417 [§ 1170.95 provides “a procedure
by which those convicted of murder can seek retroactive relief if
the changes in the law would affect their previously sustained
convictions”]; People v. Martinez (2019) 31 Cal.App.5th 719,
722-723 [same].)
Section 1170.95, subdivision (c), provides that, once a
person files a petition, “[t]he court shall review the petition and
determine if the petitioner has made a prima facie showing that
the petitioner falls within the provisions of this section. If the
petitioner has requested counsel, the court shall appoint counsel
to represent the petitioner. The prosecutor shall file and serve a
response within 60 days of service of the petition and the
petitioner may file and serve a reply within 30 days after the

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prosecutor response is served. These deadlines shall be extended
for good cause. If the petitioner makes a prima facie showing
that he or she is entitled to relief, the court shall issue an order to
show cause.” Section 1170.95, subdivision (d)(1), states: “Within
60 days after the order to show cause has issued, the court shall
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 been previously been [sic] sentenced, provided
that the new sentence, if any, is not greater than the initial
sentence. This deadline may be extended for good cause.”
Leighton does not argue he was convicted of felony murder
or murder under a natural and probable consequences theory.
Nor does he argue the superior court erred in ruling that he was
a major participant and that he aided and abetted two special
circumstances murders. Indeed, Leighton states: “The issue is
not whether the court reached the correct result.”
Instead, Leighton argues that, if a petition under section
1170.95 “contains the required allegations, the court (a) must
appoint counsel if so requested, and (b) consider[ ] a response
from the prosecutor and an optional reply from petitioner’s
counsel.” Leighton contends the superior court erred by denying
the petition “without appointing counsel and without affording
even minimal opportunity to be heard” which “violated the
express mandates of the statute . . . .” Leighton argues that
section 1170.95 does not allow a court to deny a petition unless
“counsel is appointed, a response is received from the prosecutor,
and an optional reply is received from petitioner” and that, “[a]t
that point, the court determines if a prima facie showing of
entitlement to relief continues to exist.” Leighton asserts that,

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“[u]pon receipt of a petition that is complete on its face and that
requests appointment of counsel,” the court must appoint counsel
and that the court may not “declin[e] to appoint counsel,
conduct[ ] its own inquiry, and summarily rul[e] on the petition.”
According to Leighton, “unless a petition is lacking on its face one
or more of the required averments to state a claim for relief,” the
court must appoint counsel if the petitioner requests it and “must
receive information from the parties before it decides whether a
petition that is facially sufficient may be dismissed or may go
forward.”
In People v. Verdugo (2020) 44 Cal.App.5th 320, review
granted March 18, 2020, S260493 (Verdugo), this court rejected
these very arguments. We explained that “the relevant statutory
language, viewed in context, makes plain the Legislature’s intent
to permit the sentencing court, before counsel must be appointed,
to examine readily available portions of the record of conviction to
determine whether a prima facie showing has been made that the
petitioner falls within the provisions of section 1170.95—that is,
a prima facie showing the petitioner may be eligible for relief
because he or she could not be convicted of first or second degree
murder following the changes made by [Senate Bill No.] 1437 to
the definition of murder in sections 188 and 189.” (Verdugo, at
p. 323.) We further explained that, if “the court concludes the
petitioner has failed to make the initial prima facie showing
required by subdivision (c), counsel need not be appointed.”
(Id. at pp. 332-333; accord, People v. Torres (Mar. 26, 2020,
B296179) ___ Cal.App.5th ___, ___ [2020 WL 1465632, p. 5]; see
People v. Lewis (2020) 43 Cal.App.5th 1128, 1140 [“the trial
court’s duty to appoint counsel does not arise unless and until the
court makes the threshold determination that petitioner ‘falls

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within the provisions’ of the statute,” and because “the trial court
denied defendant’s petition based upon his failure to make a
prima facie showing that the statute applies to his murder
conviction, defendant was not entitled to the appointment of
counsel”].) Here, Leighton failed to make a prima facie showing
he is entitled to relief under section 1170.95, and the trial court
did not err in denying his petition.
Finally, contrary to Leighton’s assertion, the superior
court’s (in Leighton’s words) “summary and ex parte adjudication
of the petition” did not violate his right to counsel under the
Sixth Amendment to the United States Constitution. The relief
afforded by section 1170.95 is “not subject to Sixth Amendment
analysis. Rather, the Legislature’s changes constituted an act of
lenity that does not implicate defendants’ Sixth Amendment
rights.” (People v. Anthony (2019) 32 Cal.App.5th 1102, 1156;
accord, People v. Lopez (2019) 38 Cal.App.5th 1087, 1114-1115,
review granted Nov. 13, 2019, S258175.) Moreover, as we
explained in Verdugo, “the standard for subdivision (c)’s second
review—‘a prima facie showing that he or she is entitled to
relief’—is identical to the standard for issuance of an order to
show cause in a habeas corpus proceeding.” (Verdugo, supra, 44
Cal.App.5th at p. 328.) And there is no constitutional right to
counsel in a habeas corpus proceeding. (See In re Barnett (2003)
31 Cal.4th 466, 474 [“there is no federal constitutional right to
counsel for state habeas corpus proceedings”]; McGinnis v.
Superior Court (2017) 7 Cal.App.5th 1240, 1244, fn. 2 [“[a]ny
right to habeas corpus counsel, absent an order to show cause, is
purely statutory”]; Redante v. Yockelson (2003) 112 Cal.App.4th
1351, 1357 [“a criminal defendant has no constitutional right to
counsel in habeas corpus proceedings”]; cf. In re Sanders (1999)

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21 Cal.4th 697, 717, fn. 11 [“once an order to show cause issues in
a noncapital case, indicating the petitioner has made a prima
facie showing of entitlement to relief, ‘the appointment of counsel
is demanded by due process concerns’”]; People v. Shipman (1965)
62 Cal.2d 226, 232-233 [court need not appoint counsel for a writ
of coram nobis in the absence of allegations stating a prima facie
case].) Nor did the court deny Leighton due process. Leighton is
not entitled to relief under section 1170.95 because he was not
convicted of murder under a felony murder or natural and
probable consequences theory. No amount of additional briefing,
oral argument, or other process can change that. (See People v.
Cornelius (2020) 44 Cal.App.5th 54, 58 [petitioner not entitled to
counsel under section 1170.95 where “he is indisputably ineligible
for relief”].)
DISPOSITION
The order denying the petition is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J. DILLON, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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