People v. Tate CA5

INTRODUCTION

In 2003, petitioner Leroy Tate, Jr., pled no contest to the second degree murder of his infant stepson (Pen. Code,1 § 187, subd. (a)), and admitted having suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12).2 For this offense, the trial court sentenced petitioner to a term of 30 years to life. In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95. The court denied the petition without issuing an order to show cause after reviewing the probation report and determining that petitioner was the actual killer and acted with at least implied malice, disqualifying factors pursuant to section 1170.95, subdivision (a)(3). On appeal, petitioner asserts he established a prima facie claim for resentencing relief, and the court therefore erred in denying the petition without issuing an order to show cause or holding an evidentiary hearing. The People concede the court engaged in improper factfinding at the prima facie stage, but argue the record nonetheless demonstrates petitioner was prosecuted as the actual killer and is therefore ineligible for relief as a matter of law. We agree with petitioner that the record does not establish…