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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MIEKO MICHELLE LEGGETT,

Defendant and Appellant.

 D079060

 (Super. Ct. No. CC079620)

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. 
2

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.) 
3

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. 
4

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 semiautomatic 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.” 
5

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. 
6

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 
7

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. 
8

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 
9

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 felonymurder 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. 
10

(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 
11

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 felonymurder 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 
12

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. 
13

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 
14

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.) 
15

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.
16

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. 
17

(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.