The opinion
Filed 2/24/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re B310753
PAUL PALALAUA TUILAEPA, (Los Angeles County
Super. Ct. No. A035060)
on Habeas Corpus.
APPEAL from an order of the Superior Court of
Los Angeles County, Laura L. Laesecke, Judge. Reversed and
remanded with instructions.
Cuauhtemoc Ortega, Federal Public Defender, Marta
Vanlandingham and Heather L. Pickerell, Deputy Federal Public
Defenders, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, James William Bilderback II, Senior
Assistant Attorney General, Dana Muhammad Ali and
Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff
and Respondent.
________________________
INTRODUCTION
In March 2016, Paul Palalaua Tuilaepa filed his third
petition for a writ of habeas corpus in the California Supreme
Court. Tuilaepa alleged he was intellectually disabled and his
1987 death sentence violated Atkins v. Virginia (2002) 536 U.S.
304 (Atkins), which held the Eighth Amendment prohibits
execution of the intellectually disabled. He submitted
declarations from two experts diagnosing him with an
intellectual disability and another declaration from a third expert
recanting flawed testimony about Tuilaepa’s intellectual capacity
at his original trial.
In November 2016, California voters enacted
Proposition 66, the Death Penalty Reform and Savings Act of
2016 (as approved by voters, Gen. Elec. (Nov. 8, 2016), § 1). The
initiative sought to limit the length of death penalty appeals and
postconviction proceedings. To achieve this goal, it added
section 1509 to the Penal Code, which barred untimely or
“successive” capital habeas petitions “unless the court finds, by
the preponderance of all available evidence . . . that the
defendant is actually innocent . . . or is ineligible for the
sentence.” (§ 1509, subd. (d).)1 This exception expressly provides
that a court may consider claims of ineligibility for the death
penalty by reason of “intellectual disability, as defined in
Section 1376.” (Ibid.)
This appeal raises issues of first impression about the
application of section 1509 to petitions like Tuilaepa’s that were
filed but not adjudicated before Proposition 66 was enacted. The
trial court concluded Tuilaepa’s petition was procedurally barred
1 All undesignated statutory references are to the Penal
Code.
2
under section 1509 and that it did not state a prima facie case for
relief on the basis of intellectual disability. The People now
concede, and we agree, the trial court erred on both counts.
Accordingly, we reverse and remand to the trial court with
directions to issue an order to show cause on Tuilaepa’s Atkins
claim.
FACTUAL AND PROCEDURAL BACKGROUND
A. Conviction and Sentence
In 1986, Tuilaepa and an accomplice robbed a Long Beach
bar and its patrons at gunpoint. When a patron resisted the
robbery, Tuilaepa shot him in the jaw, which killed him.
Tuilaepa then shot and injured three other bystanders.
In 1987, a jury convicted Tuilaepa of first degree murder
(§ 187, subd. (a)), six counts of robbery (§ 211), one count of
attempted robbery (§§ 211; 664), and two counts of assault with a
firearm (§ 245, subd. (a)(2)). The jury found true a special
circumstance allegation that Tuilaepa committed the murder
during the commission of a robbery. (§ 190.2, subd. (a)(17)(i).)
At the penalty phase, Tuilaepa presented mitigation
evidence about his upbringing and expert evidence regarding his
intellectual ability. The defense expert, Dr. Michael Maloney,
testified he administered psychological and intelligence tests to
Tuilaepa and interviewed Tuilaepa’s family. Dr. Maloney
learned that Tuilaepa “grew up in Samoa and Hawaii and then
came to Long Beach and spent the last perhaps ten years, nine
years in the Long Beach area.” Dr. Maloney testified:
“It appears that [Tuilaepa] probably had normal
intellectual potential or near there, but he simply has
3
a deficit in terms of what he has learned, his word
knowledge in English and so forth, and this is not
surprising given the different cultural background.
“His mother speaks no English at all. . . . So a lot of
his interaction was in the Samoan language, and his
early interaction was almost completely in the
Samoan language.
“So, in terms of tests, he scores below average, but he
seems to have had the potential to do much better
than that. . . . You can come up with an IQ number,
but it’s really based on a lot of different variables.
But if I had to do that and accepting the fact that [the
IQ test] takes a lot of verbal things into account, he’d
probably be in the low 70’s, which would place him in
the bottom five percent of the population.”
After the close of the penalty proceeding, the jury returned
a death sentence.
The California Supreme Court affirmed Tuilaepa’s
convictions and capital sentence on direct appeal. (See People v.
Tuilaepa (1992) 4 Cal.4th 569, 577.) The United States Supreme
Court granted certiorari in Tuilaepa’s case to review the
constitutionality of California’s death penalty jury instructions
and affirmed the judgment against Tuilaepa. (See Tuilaepa v.
California (1994) 512 U.S. 967, 980.)
4
B. Prior Habeas Petitions
Tuilaepa filed a petition for a writ of habeas corpus with
the California Supreme Court in 1992, which the court denied in
1995. In 1997, Tuilaepa filed a habeas petition in federal district
court, amending his federal petition later that year to remove
some newly stated, unexhausted claims. 2
Tuilaepa filed a second state habeas petition in 1997 to
exhaust his new state claims, which the California Supreme
Court denied in 2006. Tuilaepa then amended his federal
petition in 2006 to reflect the exhaustion of these state claims.
In 2007, Tuilaepa moved to amend his federal habeas
petition again, to add a claim that he was intellectually disabled
and his death sentence violated Atkins. The district court
granted Tuilaepa leave in 2008 to file a third amended petition
and stayed the federal habeas proceedings so that he could
exhaust his Atkins claim in state court. Tuilaepa successfully
moved to relieve his postconviction counsel in 2015, and the
district court appointed the Office of the Federal Public Defender
to represent him.
C. Present Habeas Petition
On March 15, 2016, through his new counsel, Tuilaepa filed
a third state habeas petition in the California Supreme Court,
asserting a claim under Atkins that he was ineligible for the
death penalty due to intellectual disability. Tuilaepa submitted
declarations from Dr. James Patton and psychologist Dr. Dale
2 “Under federal law, remedies in state court must be
exhausted (see 28 U.S.C. § 2554(b)(1)(A)) before a state prisoner
can seek habeas corpus relief in the federal courts.” (In re
Zamudio Jimenez (2010) 50 Cal.4th 951, 956.)
5
Watson attesting that, in their expert opinion, Tuilaepa met the
diagnostic criteria for intellectual disability under clinical
standards and as defined in section 1376, subdivision (a). At the
time of Tuilaepa’s petition in 2016, former section 1376,
subdivision (a), defined “intellectual disability” as “the condition
of significantly subaverage general intellectual functioning
existing concurrently with deficits in adaptive behavior and
manifested before 18 years of age.” (Stats. 2012, ch. 448, § 42,
ch. 457, § 42; see In re Hawthorne (2005) 35 Cal.4th 40, 45-47
(Hawthorne) [extending definition of intellectual disability in
section 1376 to postconviction Atkins claims on habeas review].)
Dr. Watson opined that Tuilaepa’s academic background
and his history of intellectual testing demonstrated “significant
impairments in intellectual functioning” manifesting before the
age of 18. For instance, school records showed that Tuilaepa
received an IQ score of 69 at 10 years old, more than “two
standard deviations below the mean” and in the “Mildly
Retarded” range. 3 By fourth grade, Tuilaepa was placed in full-
time special education classes for “educationally handicapped”
students “due to both academic and behavioral deficits.” At
13 years old, Tuilaepa could “read most three letter words” and
“compute simple math” but did not “speak in complete sentences”
and lacked “multiplication [and] division” skills. Juvenile
incarceration records stated that, at 20 years old, Tuilaepa was
still “function[ing] at the 4th to 5th grade level academically.”
On subsequent IQ tests administered in 1987 (at age 21) and in
1997, Tuilaepa continued to perform “significantly below
average.”
3 This IQ range is now known as “Extremely Low.”
6
Based on interviews with Tuilaepa’s family members and
educators and review of his social history, Dr. Patton and
Dr. Watson both concluded that Tuilaepa exhibited significant
impairments in adaptive functioning beginning in his youth. 4
Relatives reported that Tuilaepa was “illiterate or nearly
illiterate” through his teenage years, had difficulty verbally
expressing himself except in one-word answers, used informal
sign language to communicate, and never “ha[d] a full
conversation with anyone.” As a child, Tuilaepa “was unable to
understand, focus on, or complete, basic household tasks,” like
emptying the garbage, cleaning the bathroom, fetching a glass of
water, buying groceries, telling time, or bathing and dressing
himself. He was “unable to understand the rules” of children’s
games like hide and seek, flag football, or basketball, and he had
“few, if any friends” because of his “trouble communicating.”
Family members described Tuilaepa as “suggestible,” “gullible,”
“vulnerable to manipulation,” “a follower,” and “a frequent
scapegoat for others’ misdeeds.” As a young adult, Tuilaepa was
unable to drive, use public transportation, or perform “simple
job[s]” such as picking produce or loading furniture.
After Tuilaepa’s family moved from Samoa to the United
States when he was five years old, his siblings recalled that
4 “Adaptive functioning,” also known as “adaptive behavior,”
describes a person’s “ability to function in the real world” and
“meet[] community standards of personal independence and
social responsibility, in comparison to others of similar age and
sociocultural background.” Adaptive functioning skills include
“communication, self-care, home living, social/interpersonal
skills, use of community resources, self-direction, functional
academic skills, work, leisure, health, and safety.”
7
Tuilaepa had “by far the most trouble, out of all the children in
the family, learning English.” Tuilaepa also “never learned to
speak or understand Samoan, even though he lived in Samoa
until age five and his parents spoke [Samoan] exclusively at
home.” For example, Tuilaepa could not recite the daily rosary
with his family in Samoan, despite physical punishment for his
failure to do so.
Tuilaepa attached a third declaration from Dr. Maloney,
the defense expert in Tuilaepa’s 1987 trial. Dr. Maloney declared
that in his original evaluation of Tuilaepa, he administered
various intelligence tests, which indicated impaired intellectual
functioning with “significant deficits in [Tuilaepa’s] word
knowledge and verbal reasoning.” In assessing the test results,
Dr. Maloney sought to “account, or correct, for any possible
influences of Mr. Tuilaepa’s Samoan cultural background and
native Samoan language.” 5
Dr. Maloney stated:
“When I testified at Mr. Tuilaepa’s trial in 1987, I did
not know that Mr. Tuilaepa had not learned to speak
the Samoan language fluently, despite growing up in
a household where Samoan was the predominant
language spoken and where both parents spoke only
Samoan. It is unusual for a child to fail to become
fluent in a language under those circumstances. . . .
5 The Penal Code now provides, “The results of a test
measuring intellectual functioning shall not be changed or
adjusted based on race, ethnicity, national origin, or
socioeconomic status.” (§ 1376, subd. (h).)
8
“Had I known at the time of trial that Mr. Tuilaepa
had not learned to speak Samoan fluently, I would
have testified that th[is] fact strongly supported the
conclusion that his intellectual functioning is
impaired. . . .
“I also did not know at the time of trial that
Mr. Tuilaepa was not given responsibilities for
household chores in his family, or that he had
difficulty with routine tasks such as emptying all the
trash cans in the household. This information
further indicates that Mr. Tuilaepa’s low IQ scores
are not a result of cultural factors or of English not
being his native language. Rather, they are a
reflection of intellectual impairments not totally
related to culture.”
The People filed an informal response opposing Tuilaepa’s
habeas petition as untimely, arguing the United States Supreme
Court decided Atkins in 2002 and Tuilaepa’s filing of his petition
in 2016 constituted “unjustified and substantial delay.” The
People further contended the petition failed to state a prima facie
case for relief on the basis of intellectual disability because the
expert declarations failed to establish Tuilaepa’s “significantly
subaverage general intellectual functioning.”
While Tuilaepa’s habeas petition was pending, voters
approved Proposition 66 on November 8, 2016, which became
effective in 2017. (See Briggs v. Brown (2017) 3 Cal.5th 808, 822,
862 (Briggs).) In May 2019, the California Supreme Court
transferred Tuilaepa’s petition to the Los Angeles County
9
Superior Court, pursuant to the new jurisdictional provisions of
Proposition 66. (See § 1509, subds. (a), (g).)
In December 2020, the superior court denied Tuilaepa’s
habeas petition at the prima facie stage without issuing an order
to show cause. The court first ruled the petition was procedurally
barred because Tuilaepa “failed to justify [his] substantial delay
of 14 years” before filing his petition after the Atkins decision.
The court declined to consider Tuilaepa’s petition under the
exceptions to untimeliness outlined in In re Clark (1993)
5 Cal.4th 750, 797-798 (Clark) because the petition did not allege
a fundamental miscarriage of justice. 6
The superior court further determined that, even if the
petition were timely, it did not state a prima facie case for relief
on the basis of intellectual disability under section 1376,
subdivision (a). The court faulted the expert declarations for
failing to address what it perceived to be inconsistencies in
Tuilaepa’s test results and academic record, or the potential
impact of Tuilaepa’s childhood drug use, truancy, and juvenile
incarceration on his adaptive functioning skills. Because
Tuilaepa failed to state a prima facie case for relief, the court
6 At the time Tuilaepa filed his petition, Clark, supra,
5 Cal.4th 750 allowed courts to consider an untimely or
successive habeas petition if the petitioner alleged a fundamental
miscarriage of justice. (See id. at pp. 797-798.) By the time the
superior court considered Tuilaepa’s petition, Proposition 66
replaced the Clark test with the narrower exceptions specified in
section 1509. (See In re Friend (2021) 11 Cal.5th 720, 742
(Friend).) Although the superior court concluded section 1509
applied to Tuilaepa’s petition, it also determined Tuilaepa’s
petition did not satisfy the exceptions in Clark.
10
decided his habeas petition did not satisfy any exception to
untimeliness under section 1509 and must therefore be denied.
Tuilaepa timely appealed, consenting to appellate
representation by the federal public defender. On October 5,
2022, this court granted Tuilaepa a certificate of appealability
under section 1509.1, subdivision (c), on two issues: (1) whether
the superior court erred in dismissing the habeas petition as
successive; and (2) whether the court erred in dismissing the
petition without issuing an order to show cause and conducting
an evidentiary hearing on the Atkins claim. 7
DISCUSSION
Tuilaepa contends his habeas petition is not procedurally
barred and that he has established a prima facie case for relief on
the basis of intellectual disability. The People agree and concede
the case should be remanded to the superior court. The parties
disagree whether Proposition 66, effective 2017, and recent
amendments to the statutory definition of intellectual disability,
effective 2021 and 2025, apply to Tuilaepa’s earlier-filed petition.
A. Legal Background and Standard of Review
Our state Constitution secures the right to petition for a
writ of habeas corpus. (See Cal. Const., art. I, § 11; see also
7 A “‘successive’” petition is one “raising claims that could
have been presented in a previous petition” without “adequate
justification for the failure to present a particular claim . . .
earlier.” (Friend, supra, 11 Cal.5th at p. 731.) For this reason,
we construed the trial court’s dismissal order as deeming
Tuilaepa’s petition “‘successive.’”
11
People v. Duvall (1995) 9 Cal.4th 464, 474 (Duvall).) The
Legislature has implemented the right to petition for habeas
corpus through section 1473, subdivision (a). (See In re Cook
(2019) 7 Cal.5th 439, 452 (Cook).) “In exercising habeas
jurisdiction, the courts ‘“must abide by the procedures set forth”’”
in the Penal Code. (Id. at p. 457; see §§ 1473 to 1509.1.)
“When presented with a petition for a writ of habeas
corpus, a court must first determine whether the petition states a
prima facie case for relief—that is, whether it states facts that, if
true, entitle the petitioner to relief—and also whether the stated
claims are for any reason procedurally barred.” (People v.
Romero (1994) 8 Cal.4th 728, 737 (Romero); accord, Cook, supra,
7 Cal.5th at p. 457; Maas v. Superior Court (2016) 1 Cal.5th 962,
974.) If the petition states a prima facie case and is not
procedurally barred, “the court must issue a writ of habeas
corpus or order to show cause, receive a return and traverse, and
may, if necessary, order an evidentiary hearing on the claims.”
(Cook, at p. 457; accord, Romero, at pp. 737-739; see § 1376,
subd. (g) [when a habeas petitioner “makes a prima facie showing
of intellectual disability, the reviewing court shall issue an order
to show cause”].) An evidentiary hearing enables the court to
find facts and make credibility determinations necessary to
adjudicate the petition. (See Cook, at p. 457.) Ultimately, the
petitioner bears the burden to “‘prove, by a preponderance of the
evidence, facts that establish a basis for relief on habeas corpus.’”
(In re Price (2011) 51 Cal.4th 547, 559; see § 1376, subd. (g).)
We review de novo the trial court’s legal determinations
that Tuilaepa’s petition is procedurally barred and does not state
a prima facie case for relief. (See In re Taylor (2015) 60 Cal.4th
1019, 1035; In re Hill (2024) 104 Cal.App.5th 804, 825 (Hill).) As
12
this appeal involves the application of Proposition 66 and
section 1376, we interpret their provisions de novo. (See People v.
Gonzales (2018) 6 Cal.5th 44, 49.) We also review de novo
whether the statute applies retroactively. (See In re Marriage of
Fellows (2006) 39 Cal.4th 179, 183; Dragones v. Calkins (2024)
98 Cal.App.5th 1075, 1081.)
B. Tuilaepa’s Petition Is Not Procedurally Barred
We first consider whether Tuilaepa’s Atkins claim is “for
any reason procedurally barred” (Romero, 8 Cal.4th at p. 737),
and the effect of Proposition 66 on his petition.
To prevent “abuse of the writ [of habeas corpus] process,”
courts have traditionally barred petitioners from filing
“successive” habeas petitions. (Friend, supra, 11 Cal.5th at
pp. 720, 727-728; accord, In re Maury (2024) 105 Cal.App.5th 645,
661; In re Seumanu (2024) 100 Cal.App.5th 599, 620.) Under this
rule, a habeas petitioner must “present all known claims in a
single, timely petition,” and “[b]efore a successive petition will be
entertained on its merits the petitioner must explain and justify
the failure to present claims in a timely manner in his prior
petition or petitions.” (Clark, supra, 5 Cal.4th at pp. 774, 797,
superseded by statute as stated in Briggs, supra, 3 Cal.5th 808.)
In Clark, the California Supreme Court articulated four
exceptions to the traditional rule. A court may consider a
successive petition that alleges “a fundamental miscarriage of
justice” through (1) fundamentally unfair constitutional error
without which no reasonable trier of fact would have convicted
the petitioner; (2) actual innocence; (3) imposition of the death
penalty based on a “grossly misleading profile of the petitioner”
without which no sentencing authority would have imposed
13
death; or (4) conviction or sentence under an invalid statute.
(Clark, supra, 5 Cal.4th at pp. 797-798.)
With Proposition 66, which took effect on October 25, 2017,
California voters changed habeas proceedings in capital cases.
The initiative was intended as “an extensive reform of the entire
system of capital punishment to make it more efficient, less
expensive, and more responsive to the rights of victims.” (Briggs,
supra, 3 Cal.5th at p. 831.) As relevant here, Proposition 66
added sections 1509 and 1509.1, which imposed a one-year filing
deadline for capital habeas petitions (§ 1509, subd. (c)), redirected
such petitions from the California Supreme Court to the
sentencing courts (§ 1509, subd. (a)), and adopted new procedures
for appellate review of capital habeas petitions (§ 1509.1,
subd. (a)). (See Friend, supra, 11 Cal.5th at pp. 725-726.)
Proposition 66 amended section 190.6 to direct the Judicial
Council to adopt rules expediting capital appeals and habeas
proceedings, and to provide that “[w]ithin five years of the
adoption of [these] rules or the entry of judgment, whichever is
later, the state courts shall complete the state appeal and the
initial state habeas corpus review in capital cases.” (§ 190.6,
subd. (d); see Briggs, at pp. 823-824, 858 [holding five-year
deadline is not mandatory].)
Proposition 66 also modified, for capital cases, the common-
law rule against successive petitions. As relevant here,
section 1509, subdivision (d), provides: “An initial petition which
is untimely under subdivision (c) or a successive petition
whenever filed shall be dismissed unless the court finds, by the
preponderance of all available evidence, whether or not
admissible at trial, that the defendant is actually innocent of the
crime of which he or she was convicted or is ineligible for the
14
sentence.” The statute further states, “‘Ineligible for the sentence
of death’ means that circumstances exist placing that sentence
outside the range of the sentencer’s discretion. Claims of
ineligibility include . . . a claim that the defendant has an
intellectual disability, as defined in Section 1376.” (§ 1509,
subd. (d).)
In Friend, supra, 11 Cal.5th 720, the California Supreme
Court explained that, after Proposition 66, second or subsequent
habeas claims are not barred as “successive” under section 1509,
subdivision (d), “if the petitioner offers adequate justification for
the failure to present a particular claim in an earlier petition.”
(Friend, at p. 731.) This includes claims based on newly
discovered evidence; a new, retroactive change in the law; or the
ineffective assistance of prior counsel. (See ibid.) But when a
petitioner cannot justify raising new claims in a subsequent
petition, section 1509, subdivision (d), “replace[s] . . . Clark’s
substantive exception for fundamental miscarriages of justice
with a narrower exception limited to claims of innocence or
ineligibility.” (Friend, at pp. 739-740.) Accordingly, “under the
law as amended by Proposition 66, habeas corpus petitioners
must make a showing of actual innocence or death ineligibility if
they seek a second chance to make an argument they could have
made earlier.” (Id. at p. 724.)
1. Section 1509, Subdivision (d), Added by
Proposition 66, Applies Retroactively to Tuilaepa’s
Petition
Tuilaepa argues that, because he filed his petition before
the passage of Proposition 66, “[s]ection 1509(d) is a prospective
statute that cannot be applied retroactively to [his] Atkins claim.”
15
He argues instead that Clark should apply, and that he has
shown justifiable delay in bringing his Atkins claim, or in the
alternative, that he has demonstrated a “fundamental
miscarriage of justice” under Clark.8
We conclude that section 1509, subdivision (d), applies
retroactively to Tuilaepa’s petition because his petition was
pending on the date Proposition 66 became effective. 9 “Although
statutes ‘are generally presumed to operate prospectively and not
retroactively,’ this presumption is rebuttable.” (Preston v. State
Bd. of Equalization (2001) 25 Cal.4th 197, 222 (Preston).)
Whether a law applies retroactively turns on “the intent of the
Legislature, or in the case of a ballot measure, the intent of the
electorate.” (People v. Superior Court (Lara) (2018) 4 Cal.5th
299, 307; accord, Californians for Disability Rights v. Mervyn’s,
LLC (2006) 39 Cal.4th 223, 230.) We consult the usual indicators
of the electorate’s intent: first, the initiative’s language, then
extrinsic sources like the voter ballot pamphlet, and finally, “‘“the
object in view, the evils to be remedied, the history of the times
8 Tuilaepa does not argue he has a due process interest in
the application of the prior standard. (See In re Marriage of
Bouquet (1976) 16 Cal.3d 583, 592; cf. Friend, supra, 11 Cal.5th
at p. 740, fn. 14 [leaving undecided any constitutional issues
raised by the replacement of the Clark standard].)
9 The People contend that we need not address “the superior
court’s determination of successiveness and untimeliness”
because “[o]n remand, Tuilaepa can overcome section 1509,
subdivision (d)’s prohibition on successive petitions if he can
demonstrate ‘by the preponderance of all available evidence . . .
that [he] . . . is ineligible for [his death] sentence.’” We reach the
issue to provide guidance to superior courts applying
Proposition 66.
16
and of legislation upon the same subject.”’” (Evangelatos v.
Superior Court (1988) 44 Cal.3d 1188, 1209-1210, 1212
(Evangelatos); see In re Marriage of Bouquet (1976) 16 Cal.3d
583, 587.) “Even without an express declaration [of
retroactivity], a statute may apply retroactively if there is ‘“a
clear and compelling implication”’ that the Legislature [or voters]
intended such a result.” (People v. Alford (2007) 42 Cal.4th 749,
753 (Alford).)
Although section 1509 itself does not contain an express
retroactivity provision, the language of Proposition 66 clearly
reflects retroactive intent such that section 1509, subdivision (d),
applies to petitions pending on its effective date. Section 19 of
Proposition 66 declared “all sections of this act take effect
immediately upon enactment and apply to all proceedings
conducted on or after the effective date.” (Initiative Measure
Prop. 66, § 19, approved Nov. 8, 2016, eff. Oct. 25, 2017.)
Subdivision (a) of section 1509 states, without limitation, “This
section applies to any petition for writ of habeas corpus filed by a
person in custody pursuant to a judgment of death.” Further,
subdivision (g) provides for transferring already-pending
petitions from the California Supreme Court to the superior
court: “‘If a habeas corpus petition is pending on the effective
date of this section, the court may transfer the petition to the
court which imposed the sentence.’” (In re Robinson (2019)
35 Cal.App.5th 421, 426 (Robinson) [concluding Proposition 66
applies retroactively to capital habeas petitions filed before its
enactment, because “the statute specifically contemplates what to
do to pre-Proposition petitions”]; see Bank of America v. Angel
View Crippled Children’s Foundation (1999) 72 Cal.App.4th 451,
457-458 [discerning retroactive intent from statutory provision
17
indicating application to pending cases]; Yoshioka v. Superior
Court (1997) 58 Cal.App.4th 972, 980-981 [same].)
Extrinsic indicators confirm the voters intended
section 1509, subdivision (d), would apply retroactively. The
“Analysis by the Legislative Analyst” in the ballot pamphlet
explained that “the vast majority” of individuals subject to the
death penalty “are [in] various stages of the direct appeal or
habeas corpus petition process” and “[t]hese legal challenges . . .
can take a couple of decades to complete.” (Voter Information
Guide, Gen. Elect. (Nov. 8, 2016) analysis of Prop. 66, p. 105.)
The pamphlet stated that the proposed five-year time limit on
appeals and initial habeas proceedings “would apply to new legal
challenges, as well as those currently pending in court.” (Id. at
p. 106.) The analysis explained, “In order to help meet [these]
time frames, the measure places other limits on legal challenges
to death sentences. For example, the measure does not allow
additional habeas corpus petitions to be filed after the first
petition is filed, except in those cases where the court finds that
the defendant is likely either innocent or not eligible for the
death sentence.” (Id. at p. 106.) From these representations, it is
clear the electorate contemplated that Proposition 66’s new
limitations on successive claims would impact pending habeas
petitions. (Cf. Evangelatos, supra, 44 Cal.3d at p. 1212 [where no
analysis or statements “in the ballot pamphlet spoke to the
retroactivity question . . . there is no reason to believe that the
electorate harbored any specific thoughts or intent with respect
to the retroactivity issue at all”].)
The purpose underlying Proposition 66 further supports
retroactive application of section 1509, subdivision (d). As our
colleagues in Division Two of the Second District have observed,
18
“Proposition 66 was enacted to ‘[r]eform[] the existing inefficient
appeals process for death penalty cases,’ in part by removing the
backlog of habeas corpus petitions pending before the Supreme
Court by redistributing those petitions to the pertinent superior
courts around the state for orderly disposition. [Citation.] This
purpose is furthered by subjecting all pending petitions to
Proposition 66’s new process.” (Robinson, supra, 35 Cal.App.5th
at pp. 426-427 [italics omitted]; see Alford, supra, 42 Cal.4th at
p. 754 [determining court fee statute applied retroactively
because prospective application would not “produce[] the needed
revenue” in the time described]; People v. Vinson (2011)
193 Cal.App.4th 1190, 1199 [legislative purpose to offset costs of
prison overcrowding supported retroactive application].)
2. Section 1509, subdivision (d), Does Not Bar
Tuilaepa’s Claim of Ineligibility for the Death Penalty
Although we conclude section 1509, subdivision (d), applies
to Tuilaepa’s petition, Tuilaepa contends, the People concede, and
we agree Tuilaepa’s petition is not procedurally barred as a
“successive petition” or untimely petition. Section 1509,
subdivision (d), authorizes successive or untimely habeas
petitions from capital defendants that show by a “preponderance
of all available evidence . . . that the defendant is actually
innocent . . . or is ineligible for the sentence.” 10 Because we
conclude below that Tuilaepa establishes a prima facie case for
10 Tuilaepa maintains his Atkins claim is not untimely or
successive, primarily because his prior attorneys rendered
ineffective assistance from 2009 to 2015. In light of our
conclusion that his petition is not procedurally barred, we need
not reach this argument.
19
relief on the basis of intellectual disability under Atkins, he has
sufficiently demonstrated at this juncture that he “is ineligible
for the sentence” and his petition is not barred by section 1509,
subdivision (d). (See Friend, supra, 11 Cal.5th at p. 727 [courts
may consider successive petitions that are “[]accompanied by a
showing of innocence or ineligibility for the death penalty”].)
C. Tuilaepa’s Petition States a Prima Facie Case for Relief
We consider next whether Tuilaepa stated a prima facie
Atkins claim—that is, whether he “states facts that, if true,
entitle [him] to relief.” (Romero, supra, 8 Cal.4th at p. 737.)
Tuilaepa argues, the People concede, and we agree, that Tuilaepa
made the requisite prima facie showing under section 1376 as
amended and is entitled to an evidentiary hearing.
In Atkins, the United States Supreme Court established
that the Eighth Amendment prohibits the execution of
intellectually disabled defendants. (See Atkins, supra, 536 U.S.
at p. 321.) The Court observed that “clinical definitions of mental
retardation require not only subaverage intellectual functioning,
but also significant limitations in adaptive skills . . . that became
manifest before age 18,” but it left to the states “‘the task of
developing appropriate ways to enforce the constitutional
restriction upon [their] execution of sentences.’” (Id. at pp. 317-
318.)
Drawing upon Atkins, in 2003 the Legislature added
section 1376 to the Penal Code. That provision defines
intellectual disability, provides that intellectually disabled
individuals are ineligible for the death penalty, and creates
procedures for adjudicating claims of intellectual disability in
capital prosecutions. (Stats. 2003, ch. 700, § 1; see Hawthorne,
20
supra, 35 Cal.4th at p. 47 [extending section 1376 to
postconviction habeas claims of intellectual disability].) As
stated, at the time Tuilaepa filed his petition in 2016,
section 1376 defined intellectual disability as “the condition of
significantly subaverage general intellectual functioning existing
concurrently with deficits in adaptive behavior and manifested
before 18 years of age.” (Stats. 2012, ch. 448, § 42.)
After Tuilaepa filed his petition and the trial court denied
it, the Legislature has twice amended the definition of
intellectual disability in section 1376, aligning its definition with
clinical standards.
Effective 2021, the Legislature determined that intellectual
disability must manifest “before the end of the developmental
period, as defined by clinical standards,” rather than before the
age of 18. (§ 1376, subd. (a)(1), as amended by Stats. 2020,
ch. 331, § 2.) This amendment also clarified that a “‘[p]rima facie
showing of intellectual disability’ means that the defendant’s
allegation of intellectual disability is based on the type of
evidence typically relied on by a qualified expert in diagnosing
intellectual disability, as defined in current clinical standards, or
when a qualified expert provides a declaration diagnosing the
defendant as intellectually disabled.” (§ 1376, subd. (a)(2), as
amended by Stats. 2020, ch. 331, § 2.)
The Legislature further amended section 1376 and as of
2025, that provision clarified that “‘[m]anifested before the end of
the developmental period’ means that the deficits were present
during the developmental period. It does not require a formal
diagnosis of intellectual disability, or tests of intellectual
functioning in the intellectual disability range, before the end of
21
the developmental period.” (§ 1376, subd. (a)(2), as amended by
Stats. 2024, ch. 908, § 2.)
Tuilaepa suggests that because he filed his petition in 2016
and his expert declarations utilized the pre-2021 definition of
“intellectual disability,” we should apply the unamended
statutory provision.11 The People argue that the “current
version” of section 1376 applies. We conclude the current
statutory definition applies to Tuilaepa’s petition because the
intervening amendments altered the procedural standards
applicable to prima facie determinations. (See, e.g., Friend,
supra, 11 Cal.5th at p. 743 [“Employing current statutory
procedures in current litigation is not ordinarily considered a
retroactive application of the statute.”]; Tapia v. Superior Court
(1991) 53 Cal.3d 282, 288 (Tapia) [procedural amendments apply
prospectively to all future procedural events, even if proceedings
were pending prior to amendment].) The amendments, which
broaden the definition of intellectual disability and lower the bar
for establishing a prima facie case, are also ameliorative because
they enlarge the class of intellectually disabled capital
defendants eligible for relief. (See Tapia, at p. 301, citing In re
Estrada (1965) 63 Cal.2d 740, 745.)
11 Although Tuilaepa’s expert declarations are tailored to the
2016 definition of intellectual disability, as the trial court
observed, not all the evidence the experts discussed “pre-dated
[Tuilaepa’s] 18th birthday in 1983.” Other evidence of
intellectual disability included “declarations and reports . . .
written in preparation for trial in 1986,” when Tuilaepa was 21.
In light of the changes in the law since Tuilaepa filed his petition,
on remand he is entitled to file supplemental declarations or
other probative evidence of intellectual disability under the
current definition of “developmental period” in section 1376.
22
In all events, Tuilaepa has made a prima facie showing for
relief based on intellectual disability under any applicable
version of section 1376. A prima facie showing under Atkins is
made with an expert declaration “set[ting] forth a factual basis
for finding the petitioner has significantly subaverage intellectual
functioning and deficiencies in adaptive behavior,” which either
manifested before the age of 18 (under the version of section 1376
in effect when Tuilaepa filed his petition) or the end of the
clinically defined developmental period (under the current
version of section 1376). (Hawthorne, supra, 35 Cal.4th at p. 48;
accord, People v. Powell (2018) 6 Cal.5th 136, 192; see § 1376,
subd. (a)(1); former § 1376, subd. (a), as amended by Stats. 2012,
ch. 457, § 42.)
At the prima facie stage, “the court takes petitioner’s
factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if the
petitioner’s factual allegations were proved. If so, the court must
issue an order to show cause.” (Cal. Rules of Court,
rule 4.551(c)(1); see In re Jenkins (2023) 14 Cal.5th 493, 519.) A
petitioner must “state fully and with particularity the facts on
which relief is sought” and “include copies of reasonably available
documentary evidence supporting the claim, including pertinent
portions of trial transcripts and affidavits or declarations.”
(Duvall, supra, 9 Cal.4th at p. 474.) “‘“Conclusory allegations
made without any explanation of the basis for the allegations do
not warrant relief.”’” (Jenkins, at p. 519.) Likewise, if the record
“contain[s] facts refuting the allegations made in the petition . . .
the court is justified in making a credibility determination
adverse to the petitioner.” (In re Serrano (1995) 10 Cal.4th 447,
456 (Serrano).
23
Here, Tuilaepa submitted two expert declarations that met
the criteria for intellectual disability under both the former and
amended version of section 1376, and another declaration that
retracted contrary evidence at his original trial. Dr. Watson’s
declaration diagnosed Tuilaepa as intellectually disabled under
clinical standards, stating, “[I]n my professional opinion, the
evidence supports the conclusion that Mr. Tuilaepa suffers from
Intellectual Disability (“ID”), as that term is defined under
California law, as well as by the AAIDD [American Association
on Intellectual and Developmental Disabilities] Manual and
DSM-5 [American Psychological Association’s Diagnostic and
Statistical Manual].” (See § 1376, subd. (a)(3).) The declarations
also tracked the statutory definition for intellectual disability.
(See id., subd. (a)(1).) Citing Tuilaepa’s testing and social
history, Dr. Watson identified “significant impairments” in
Tuilaepa’s intellectual functioning and adaptive functioning
manifesting before age 18. Dr. Patton, a special education expert,
concurred that Tuilaepa “exhibited significant adaptive deficits”
before 18, as defined by the AAIDD and the DSM-5. These
declarations made an “evidentiary showing sufficient to meet the
statutory threshold entitling [Tuilaepa] to a hearing” on the
question of his intellectual disability. (Hawthorne, supra,
35 Cal.4th at p. 51 [neuropsychologist’s declaration describing
petitioner’s childhood impairments and subaverage IQ testing
met prima facie standard].)
The trial court did not accept as true Tuilaepa’s allegations
and supporting expert declarations. Instead, it erred by weighing
the facts from the expert declarations against other facts in the
24
record, and by assessing the credibility of the expert
conclusions. 12
By way of example, the superior court rejected Dr. Patton’s
conclusion that school records and firsthand accounts of
Tuilaepa’s childhood demonstrated impaired adaptive functioning
because Dr. Patton did not address the potential impact of
Tuilaepa’s “intermittent [juvenile] incarceration” or “drug use” on
his adaptive functioning. The trial court similarly disputed Dr.
Watson’s assertion that Tuilaepa had significantly subaverage
intellectual functioning. Although Dr. Watson factually based
this conclusion on Tuilaepa’s IQ test results and academic record,
the court dismissed Dr. Watson’s conclusion with evidence of
Tuilaepa’s “Cs” and “Bs” grades while in juvenile detention.
These countervailing facts cited by the court did not entirely
“refut[e]” Tuilaepa’s allegations, such that the court could reject
his allegations altogether. (Serrano, supra, 10 Cal.4th at p. 456.)
“At the prima facie stage, the trial court should have focused on
the accuracy and significance of [Tuilaepa’s] proffered facts,
rather than weighing his evidence against . . . contrary . . .
testimony.” (Finley v. Superior Court (2023) 95 Cal.App.5th 12,
24; cf. People v. Lewis (2021) 11 Cal.5th 952, 972 [prima facie
inquiry does not entail “‘factfinding involving the weighing of
evidence’”].)
The trial court also prematurely assessed the credibility of
the expert declarations. For instance, Dr. Watson explained that
Tuilaepa achieved an “average” score on the Leiter IQ test,
designed for “those who do not speak English,” but he explained
12 The People did not argue, and the trial court did not
conclude, that Tuilaepa’s experts were not qualified or that their
declarations were inadmissible on evidentiary grounds.
25
“the Leiter score provides an incomplete assessment of
[Tuilaepa’s] intellectual functioning, because it excludes
consideration of verbal intelligence,” which was “shown to be
impaired in Mr. Tuilaepa’s case.” The trial court rejected this
assertion, concluding that Tuilaepa’s average Leiter score
“contradicted” Dr. Watson’s finding of intellectual disability and
commenting that “under [Dr. Watson’s] reasoning, the Leiter test
should never be given.” The trial court also credited
Dr. Maloney’s trial testimony that Tuilaepa had “normal
intellectual potential” over Dr. Maloney’s new opinion, which was
informed by more context about Tuilaepa’s upbringing, that
Tuilaepa’s “intellectual functioning is impaired.” (See Serrano,
supra, 10 Cal.4th at p. 456 [habeas court should not reject a
petitioner’s allegations on credibility grounds “without first
conducting an evidentiary hearing”].)
At the prima facie stage, Tuilaepa “was not required to
prove his allegations, only to demonstrate that a claim would be
stated if the allegations were true.” (Hill, supra, 104 Cal.App.5th
at p. 834.) Accepting the allegations in his habeas petition as
true, Tuilaepa established a prima facie case for relief on the
basis of intellectual disability.
D. Tuilaepa Does Not Establish Grounds for Judicial
Disqualification Under Code of Civil Procedure
Section 170.1
For the first time in his reply brief, Tuilaepa asserted the
trial court’s order denying his habeas petition “exhibit[ed]
prejudice against the qualified experts, [and] the evidence on
which they based their conclusions.” He requested to have his
case assigned to a different judge on remand under section 170.1,
26
subdivision (c), of the Code of Civil Procedure on this basis. 13 The
People moved to strike this argument or in the alternative
requested leave to file a sur-reply addressing this new argument.
We granted the latter and consider Tuilaepa’s argument on the
merits.
Section 170.1 provides for disqualification if “[a] person
aware of the facts might reasonably entertain a doubt that the
judge would be able to be impartial.” (Code Civ. Proc., § 170.1,
subd. (a)(6)(A)(iii).) “An appellate court must exercise its power
to disqualify a judge under that statute sparingly, and only when
the interests of justice require it.” (People v. LaBlanc (2015)
238 Cal.App.4th 1059, 1079.) While the trial court erred in
denying Tuilaepa’s petition, “[m]ere judicial error does not
establish bias and normally is not a proper ground for
disqualification.” (Ibid.) Without more facts suggesting judicial
bias, we decline Tuilaepa’s request to assign this case to a
different trial judge on remand. (See id. at p. 1080 [although
trial judge erred, he was not biased where his understanding of
the legal standards comported with the applicable statute and he
made no comments suggesting “he could not come to a different
conclusion” on remand]; accord, Rab v. Weber (2023)
91 Cal.App.5th 1337, 1353 [“‘[e]rroneous rulings against a
litigant . . . do not establish a charge of bias and prejudice’”].)
13 This section provides: “At the request of a party or on its
own motion an appellate court shall consider whether in the
interests of justice it should direct that further proceedings be
heard before a trial judge other than the judge whose judgment
or order was reviewed by the appellate court.” (Code Civ. Proc.,
§ 170.1, subd. (c).)
27
DISPOSITION
The order denying the petition for a writ of habeas corpus
is reversed. The matter is remanded to the trial court with
directions to issue an order to show cause.
MARTINEZ, P. J.
We concur:
FEUER, J.
STONE, J.
28