Opinion
A163253
03-16-2023
In re DARNELL GRIER, on Habeas Corpus.
NOT TO BE PUBLISHED
(Solano County Super. Ct. Nos. FCR356428, VCR219393)
Miller, J.
In 2018, a jury convicted petitioner Darnell Grier of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)) and discharge of a firearm with gross negligence (§ 246.3, subd. (a)). In these habeas corpus proceedings, petitioner asks us to vacate his convictions, arguing that his trial counsel provided ineffective assistance by failing to consult experts, and put on expert testimony, on the related subjects of eyewitness identifications and the limited illumination produced by firearm "muzzle flashes" and by failing to request a standard jury instruction concerning the reliability of eyewitness identifications. He further contends that the cumulative impact of counsel's omissions prejudiced his defense. In the alternative, petitioner asks us to send the petition to the trial court for an evidentiary hearing on the underlying ineffective assistance of counsel claims.
Further undesignated statutory references are to the Penal Code.
In light of the three declarations submitted with the petition (from trial counsel, a firearms expert on the subject of illumination from muzzle flashes, and a psychologist/perception expert on eyewitness identifications), as well as issues raised in the return, traverse, and oral argument, we conclude that an evidentiary hearing is necessary to dispose of petitioner's claims. We therefore direct issuance of a new order to show cause, returnable in the superior court, conferring jurisdiction upon that court to take evidence and decide the petition.
BACKGROUND
Facts Described in the Direct Appeal
In petitioner's direct appeal (People v. Grier (Sept. 5, 2019, A155038) [nonpub. opn.]), we described the facts pertinent to the issues raised on appeal as follows.
We granted petitioner's motion to take judicial notice of the transcripts and other records in People v. Grier, supra, A155038. Now, on our own motion, we also take judicial notice of our opinion in that appeal.
"Vallejo Police Officer Joe McCarthy, the arresting officer and only eyewitness to the shooting who testified, was the chief prosecution witness. Around 8:40 [p.m.] on November 14, 2013, while stopped at a traffic light at the intersection of Springs Road and Oakwood Avenue in Vallejo, McCarthy heard gunfire. He was initially unable to discern where it was coming from, but after he opened the passenger window and looked to his right, he saw 'muzzle flashes' coming from a parking lot adjacent to the Blue Rock Bar, which was 200 to 300 feet away. He immediately observed a person quickly firing approximately six rounds, which took only two or three seconds. Officer McCarthy was unable to identify the shooter's target, but was able to observe the gunman pointing the gun straight ahead in a westerly direction toward the bar, 50 or 75 feet away.
"In court, Officer McCarthy identified [petitioner] as the shooter. He also stated that when the person stopped shooting, he ran toward and entered the passenger door of a silver coupe parked about 10 feet from him, which then sped away.
"McCarthy saw other vehicles and people in the parking lot but was unable to see what the people were doing because he was fixated on the shooter. The driver of the silver coupe remained in the car while the shooting took place. As the car left, he was only able to see the driver's silhouette.
"When [petitioner] stopped shooting and ran toward the silver coupe, McCarthy called for backup. McCarthy turned left on Springs Road, away from the scene, and then immediately made a U-turn toward the bar and was able to see inside the silver coupe, which was then travelling in his direction. McCarthy testified that the two occupants were both African-American men and the driver had darker skin. McCarthy then made another U-turn and followed the departing vehicle. After quickly stopping the coupe, McCarthy ordered [petitioner] and the driver, later identified as Eric Anthony Burrus, out of the car and detained them. [Petitioner] had been sitting in the passenger seat.
"Burrus was charged by the same information as [petitioner], with possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 3), and accessory after the fact with knowledge of the offense of discharge of a firearm, with gross negligence (count 4). After numerous continuances on the basis of Burrus's serious medical condition, Burrus died in early 2018, and the court granted the prosecutor's motion to dismiss the case as to him. On the first date of the trial of [petitioner], the court denied [petitioner's] motion to dismiss the case, and granted his alternative motion to exclude the fact of Burrus's death." (People v. Grier, supra, A155038.)
"Vallejo Police Officer Ritzie Tolentino arrived at the scene when McCarthy stopped the vehicle and ordered the occupants to exit. He testified that he and Officer McCarthy found an unloaded .45 caliber semiautomatic firearm in plain view on the floorboard of the driver's side of the car. The weapon 'was warm and smelled of gunpowder,' indicating it had been 'recently fired.'
"After [petitioner] was arrested and taken to the police department, McCarthy conducted a videotaped interview. McCarthy asked [petitioner] whether his DNA would be found on the firearm, and said he planned to swab [petitioner's] mouth to collect his DNA, test the gun for fingerprints, and do gunpowder residue testing on his clothing and the vehicle he occupied. During direct and cross-examination, McCarthy explained that he had often tested arrestees suspected of using a firearm for gunpowder residue and sometimes tested vehicles for such residue. McCarthy said he did not do those things in this case, nor test the gun for fingerprints or DNA, because he personally 'saw [petitioner] shooting it,' trusted his own observations, and felt forensic evidence would be unnecessary. The reasons McCarthy was sure [petitioner] was the shooter were that (1) the shooter was wearing short pants, as was [petitioner] at the time he was arrested a few minutes later, and Burrus was wearing long pants; and (2) McCarthy saw the shooter run to Burrus's car and enter the passenger side, which is where [petitioner] was seated at the time McCarthy stopped the vehicle.
"Detective Sean Kenney went to the Blue Rock Bar after hearing Officer McCarthy's call for assistance and arrived there after McCarthy left in pursuit of the silver coupe. He found several people in the parking lot, which was not then well lighted. Only seven or eight people were willing to speak to him or offer information, some of which he passed on to other officers. Kenney acknowledged that he sometimes obtained the identification of persons unwilling to identify themselves but he did not try to do so here. Officer Kenney also retrieved six shell casings from the parking lot.
"The parties stipulated that Vallejo Police Officer Richard Botero test fired the gun found in the vehicle [petitioner] used to leave the scene. That weapon was booked into evidence by Stephanie Dailey, a senior police assistant assigned to the evidence and property room charged with crime scene investigation. Daily also booked into evidence casings from the test fire of the gun by Officer Botero. All eight casings were mailed to the forensic laboratory of the San Mateo County Sheriff's Office for testing....
"Eugene Bangan-an, a criminalist and examiner employed by the San Mateo County forensic laboratory testified for the prosecution as an expert witness regarding firearm identification and analysis. Bangan-an examined the eight casings sent to his laboratory and concluded that all were fired from the same weapon found in Burrus's car and test fired by Officer Botero.
"[Petitioner] testified in his own defense and was the only defense witness. After acknowledging he previously had been convicted of four felonies involving moral turpitude, [petitioner] stated that he did not 'handle or possess a gun' on November 13, 2013.
At trial, both defense counsel and the district attorney referred to the date of the incident interchangeably as November 13, 2013 and November 14, 2013. According to the parties' briefs and the record as a whole, the incident occurred on November 14, 2013.
"[Petitioner] said that on that date, after finishing his work as a plumber, he went to the Bottle Shop liquor store and got into a fist fight that lasted about 10 minutes with a man he knew as 'Moe,' and some of Moe's friends. When he went home afterward, he received two threatening phone calls, apparently from Moe, which he did not initially take seriously. Two or three hours later, [petitioner] and his wife heard gunshots. When they went outside, they saw that his car had been 'shot up.'
"A short while later, [petitioner's] long-time friend Eric Burrus came to his house and they discussed [petitioner's] fight with Moe and the shooting of [petitioner's] car. [Petitioner] asked Burrus to accompany him to speak with Moe to ensure that the hostility between him and [petitioner] did not escalate. [Petitioner], who testified that he was unarmed, said he was unaware Burrus was then armed. [(Fn. omitted.)]
"Burrus first drove [petitioner] to the Bottle Shop, but was told by the owner that Moe had recently left to go to the Blue Rock Bar. Burrus then drove to the parking lot of the bar, where he and [petitioner] saw Moe and several friends standing close to Moe's blue van. [Petitioner] then exited the car and said to Moe, 'Let me talk to you, man.' Moe then began shooting at [petitioner], who ducked behind parked cars. At that point, [petitioner] testified, Burrus got out of the car and began shooting back at Moe. According to [petitioner], when McCarthy's police car came up behind Burrus's car, Burrus put the gun under the seat, close to where it was found by Officers McCarthy and Tolentino. [(Fn. omitted.)]
"Implying that Officer McCarthy mistook him for the shooter, [petitioner] also stated that he and Burrus were about the same size but he had darker skin than Burrus. When the prosecutor asked if he thought Officer McCarthy lied on the stand, [petitioner] stated, 'I know he's lying.'
"Finally, [petitioner] testified that neither he nor his clothing was ever tested for gunshot residue and his DNA and fingerprints were never taken, as Officer McCarthy said would happen.
"On cross-examination, [petitioner] was asked by the district attorney why '[y]ou never told anyone-absent your attorney-you didn't tell the cops, you didn't tell my office that [Burrus] was the shooter, ever, until in court this week?' [Petitioner] said that was 'correct,' and the reason he didn't earlier tell anyone Burrus was the shooter was that he 'didn't want to be labeled a snitch' and also because he felt guilty for involving Burrus at all in his dispute with Moe. Asked whether he was now 'okay with being labelled a snitch?' [petitioner] answered 'I'm just here to tell the truth.' When the prosecutor asked why 'the truth took five years to come out,' [petitioner] pointed out that there were 'a lot of continuances on this case.'
"The prosecutor then pointed out that after [petitioner] told Officer McCarthy that he arrived in the parking lot with Burrus but that another partner, who was 'up out of Frisco,' was already in the parking lot when they arrived, the person who did the shooting then 'jumped over the fence' and ran away. When the prosecutor asked whether [petitioner] lied to Officer McCarthy, and just 'made up' the 'other friend,' [petitioner] agreed. He lied, he said, because 'he didn't want to tell on my friend [Burrus].' [Petitioner] emphasized that he spoke openly to Officer McCarthy despite the fact he had been told he was not required to do so, because 'I was just trying to tell him what really happened. But I didn't tell him that my partner was part of the shooting because I didn't want to get him in trouble.'" (People v. Grier, supra, A155038.)
Conviction and Appeal
In July 2018, after a three-day jury trial, petitioner was convicted of possession of a firearm by a felon (§ 29800, subd. (a)(1)) and discharge of a firearm with gross negligence (§ 246.3, subd. (a)), and sentenced to a total term of six years in state prison.
Petitioner appealed, arguing the trial court erroneously excluded evidence that he had entreated Officer McCarthy to subject him to DNA and gunpowder residue testing and take his fingerprints. In September 2019, we affirmed the judgment. (People v. Grier, supra, A155038.)
Habeas Corpus Proceedings
On August 13, 2021, petitioner filed the instant petition after first seeking, and being denied, relief in the superior court. Petitioner argues that his trial attorney, Daniel Russo, was ineffective for failing to present expert testimony at trial on eyewitness identifications, including testimony on the limited and fleeting illumination produced by firearm muzzle flashes, and ineffective for failing to request CALCRIM No. 315, the standard jury instruction relating to the reliability of eyewitness identifications, and that these failures cumulatively prejudiced him.
In August 2020, Petitioner was paroled from his prison sentence. At the time he filed his petition he was living with his family in Suisan City, California, and was under parole supervision.
In support of his petition, petitioner submitted the declarations of attorney Russo, forensic scientist Chris Coleman and psychologist Daniel Reisberg, Ph.D. According to petitioner, Mr. Coleman and Dr. Reisberg "could have apprised the jurors that it was highly implausible that Officer McCarthy could actually have perceived many of the details he described."
On May 20, 2022, after receiving an informal opposition and a reply, we summarily denied the petition.
On August 10, our Supreme Court granted review of our summary denial. The matter was transferred back to us with instructions that we vacate our May 20 order and issue an order directing respondent Secretary of the California Department of Corrections and Rehabilitation to show cause why petitioner is not entitled to relief on the ground he received ineffective assistance at trial. We complied, and respondent filed a return, and petitioner, a traverse. We then heard oral argument on February 22, 2023.
DISCUSSION
Ineffective Assistance of Counsel
"A criminal defendant is guaranteed the right to the assistance of counsel by the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. (People v. Doolin (2009) 45 Cal.4th 390, 417.) We summarized the well-established standard for a successful ineffective assistance of counsel claim in People v. Mackey (2015) 233 Cal.App.4th 32, 119: "A defendant claiming ineffective assistance of counsel must demonstrate both deficient performance and resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 691-692 . . .; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) On the first prong he must show that 'counsel's representation fell below an objective standard of reasonableness . . . [¶] . . . under prevailing professional norms.' (Strickland, supra, at p. 688.) And under the second, he must show that in the absence of the error it is reasonably probable that a result more favorable to him would have been obtained. A reasonable probability is 'a probability sufficient to undermine confidence in the outcome.' (Id. at p. 694.)"
As we have described, Officer McCarthy's identification of petitioner as the shooter was based largely on "his certitude that the shooter entered Burrus's car through the passenger side, which is where [petitioner] was found by McCarthy when he stopped the vehicle several minutes later." (People v. Grier, supra, A155038.) The identification of Grier as the shooter at trial was almost wholly dependent on the reliability and credibility of McCarthy's eyewitness testimony. Although the prosecution presented other evidence connecting Grier to the shooting, the only evidence identifying Grier as the shooter came from McCarthy. As we have noted, McCarthy testified to observing the shooting, lasting just a few seconds, from at least 200 feet away, at night, and through a cracked patrol-car window, with his attention directed to the scene only upon hearing the initial shots. McCarthy testified to absolute confidence in his identification of Grier, supporting it with claims that in his "25 plus years" as an officer he had never been mistaken in his observations at a shooting, and that even in an "incident [that] happened within a matter of seconds," in his case "it seems like ten-minutes because my mind happens to slow down and absorb the information that's happening in front of me." (Italics added.)
The context of this testimony about McCarthy's powers of observation was this: McCarthy testified on recross examination that he had called the district attorney the night before (during trial) after he had heard part of the questioning from the jury, at which time he told the district attorney about what he agreed he had described as "a kind of slowing your mind down kind of thing" relating to his powers of observation. In further redirect examination, the trial court allowed McCarthy to explain that he told the district attorney this information the night before because it was about his "state of mind." McCarthy explained: "Critical incidents, um, when there are firearms involved and a lot of danger things happen quickly, in a matter of seconds. In an [o]bservation from a distance there's a lot of information coming at the person. In my particular instance, it is that the incident happened within a matter of seconds. But sometimes in critical incidents I've been involved in it seems like ten-minutes because my mind happens to slow down and absorb the information that's happening in front of me."
Petitioner argues his trial counsel was ineffective in failing to consult with experts and in failing to present expert testimony on eyewitness identifications, the limited illumination produced by "muzzle flashes," as well as in failing to request CALCRIM No. 315, entitled "Eyewitness Identifications."
Declaration of Trial Counsel Russo
Russo's declaration states that he did not consult with any eyewitness identification expert in preparation for petitioner's trial, nor did he present any, despite the fact that he had presented such experts in other trials. He does not recall why he did not do so in this case; he believes he was "overconfident because [he] viewed" McCarthy's identification testimony as "unbelievable." He also did not consult any firearm expert on questions "regarding the extent or duration of any illumination that muzzle flashes from this particular firearm could have produced or whether those flashes would have permitted someone in Officer McCarthy's position to be able to see the events clearly from that distance." Finally, he did not request CALCRIM No. 315, which he attributes to an "oversight" without any tactical reason for foregoing the instruction. He concludes in hindsight that several of the CALCRIM No. 315 factors were relevant to McCarthy's observations, "including distance, lighting, obstructions, and the cross-racial character of the identification."
CALCRIM No. 315 provides: "You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. [¶] In evaluating identification testimony, consider the following questions: [¶] Did the witness know or have contact with the defendant before the event? [¶] How well could the witness see the perpetrator? [¶] What were the circumstances affecting the witness's ability to observe, such as lighting, weather conditions, obstructions, distance, [and] duration of observation . . . ? [¶] How closely was the witness paying attention? [¶] Was the witness under stress when he or she made the observation? [¶] Did the witness give a description and how does that description compare to the defendant? [¶] How much time passed between the event and the time when the witness identified the defendant? [¶] Was the witness asked to pick the perpetrator out of a group? [¶] Did the witness ever fail to identify the defendant? [¶] Did the witness ever change his or her mind about the identification? [¶] Are the witness and the defendant of different races? . . . [¶] [How certain was the witness when he or she made an identification?] [¶] Were there any other circumstances affecting the witness's ability to make an accurate identification? [¶] .... "[A witness's expression of certainty about an identification, whether the identification was made before or at the trial, may not be a reliable indicator of accuracy. Among the factors you may consider when evaluating the significance of the witness's certainty in the identification are the following: "[How soon after the event did the witness express certainty about the identification?] [¶] [If the witness made an identification before trial, did the witness express certainty at the time of that identification?] [¶] [Before the identification, did the witness express confidence in being able to make an identification?] [¶] [How confident was the witness in making the identification?] [¶] [Did the witness receive information before or after the identification that may have increased the witness's level of confidence?] [¶] [Did the police use procedures that increased the witness's level of confidence about the identification?] [¶] .... "The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty." (Italics added.)
Declarations of Expert Witnesses
Petitioner submitted the declarations of forensic scientist Chris Coleman and psychologist Daniel Reisberg, Ph.D., whose testimony he claims "could have apprised the jurors that it was highly implausible that Officer McCarthy could actually have perceived many of the details he described."
Chris Coleman is a Senior Forensic Scientist at the Forensic Analytic Crime Laboratory in Hayward, with over 24 years' experience in forensic science with law enforcement agencies. As noted, Coleman's declaration focuses on the ability of someone in Officer McCarthy's position to discern details of the shooter "during the momentary illumination of the muzzle flashes," which occurs when a gun is discharged and typically last from 5 to 7 milliseconds. Coleman describes the particular firearm in this case, and the nature of its muzzle flash. He visited the scene of the incident and determined that the distance between where McCarthy indicated he was located and the Blue Rock Bar was approximately 250 feet. Specifically, Mr. Coleman states that if he were to observe a person "in a controlled observation setting" with an "unobstructed line of sight" firing the same gun that was used in this case, from a distance of 250 feet away in dark lighting, he would only be able to see the muzzle flash and no physical details of the shooter "relative to the muzzle flash," and he would not be able to see "whether there was one or more person(s) in the nearby area or their position(s) relative to the muzzle flash." Further, the ability of an observer in real-time "to perceive details of a shooting in an unexpected and dynamic situation in the field is significantly more difficult that a controlled observation setting such as a firing range."
The other expert witness, Dr. Reisberg, now an emeritus professor of psychology at Reed College in Oregon, specializes in cognitive psychology, a field described by him as "the scientific study of how people perceive the world [and] how they remember what they have perceived." He is the author of hundreds of journal articles and professional papers on perception, memory, eyewitness observations, and related topics, some of which are listed on his 21-page CV. Dr. Reisberg provided a comprehensive declaration, running to eight single spaced pages, based on his review of case materials including McCarthy's and Grier's trial testimony, the preliminary hearing transcript, police reports, exhibits, and firearm expert Coleman's declaration regarding muzzle flashes and their illumination. Taking into account the "physical parameters that define this episode," his expertise in the "functioning of human vision," and the "normal functioning of human perception and memory," Dr. Reisberg's "overall assessment" was that "[v]arious factors in this case . . . suggest that some portion of Officer McCarthy's testimony is likely to reflect his inferences and assumptions about the event. In other words, part of what the Officer is reporting is likely not rooted in his actual visual perception." In Dr. Reisberg's view, "These points raise concerns about the reliability of Officer McCarthy's report that the shooter was the man who got into the car's passenger seat, and likewise his claim that the driver remained in the car."
Taking into account the statement in Coleman's declaration testimony that muzzle flashes last only 5-7 milliseconds and comparing that to the "30 times longer" as the "time needed for an eye movement," Dr. Reisberg stated that, "Plainly, then, Officer McCarthy did not have the option of looking at more than one spot during each muzzle flash. By the time he moved his eyes to a different spot, the illumination from the muzzle flash was long gone. Thus, if there were six gunshots, Officer McCarthy would have gotten (at most) only six 'snap-shots' of the scene, each one lasting only a few thousandths of a second." And even if Officer McCarthy could see Grier's outline in the vicinity of the muzzle flashes, "there is a reasonable likelihood that Officer McCarthy, with his distant view blocked either by Grier's torso or by the car, had no direct line of sight toward the gun, and so had no direct visual evidence regarding who was holding the gun." Dr. Reisberg opined on the physiological limitations precluding McCarthy from seeing the entire event, supported by his detailed explanation about the anatomy of the human eye. Also, the presence of "multiple people, moving around in the time during and immediately after shooting," "would have made it difficult for the Officer to keep track of the movements of every individual within the scene," based on Dr. Reisberg's understanding of the "research of visual attention." This, plus Coleman's testimony about the limits caused by the lack of illumination of the muzzle flashes, gave Dr. Reisberg "powerful reason to believe Officer McCarthy would not have been able to observe how various people were positioned or moving during the gunshots, leaving Officer McCarthy with a limited understanding of how the event unfolded."
Dr. Reisberg went on in some detail about "implausible elements" of McCarthy's testimony, in light of various factors outlined above.
Dr. Reisberg also explained the concept of "the constructive nature of perception." In his habeas petition, petitioner argues that the "most important contribution of Dr. Reisberg's review" is the understanding that the evaluation of the reliability of McCarthy's account requires more than an inquiry into whether he "was telling the truth or 'lying'-i.e., consciously giving a false account." As Dr. Reisberg put it, McCarthy "may be reporting more than he actually saw. That is, some aspects of the Officer's account may indeed represent what he actually saw with his eyes. But other aspects more likely represent inferences he drew from the limited information he actually took in through vision.... [W]hat a person 'perceives' and 'remembers' involves a mix of information actually obtained through the sense organs and actually recorded into memory, and then further information that is derived from a mix of inference, assumption, and prior belief This mixing together is inevitable, automatic, and uncontrollable." And this: "It is possible that Officer McCarthy did not notice that the car's driver was actually in the circle of people close to the gun fire, and therefore may have been the shooter. It is possible that Officer McCarthy's claim of having seen Grier holding the gun may have been the officer's inference, based on his overall understanding of the episode, and not actually rooted in what he was able to see."
Dr. Reisberg identified circumstances which in his view raised doubts about whether McCarthy's account was in fact rooted in actual perceptions, despite the sincerity of his belief: "[M]ultiple facts suggest that at least some of . . . McCarthy's report reflects his inferences, assumptions, and after-the-fact reconstruction, rather than what he was actually able to perceive with his eyes. As such, there was a risk of error. This point flows from a consideration of the physical layout of the scene (including the distance, the lighting, and the commotion caused by multiple people moving around)."
Finally, Dr. Reisberg makes this point, pertinent to Officer McCarthy's testimony about his exceptional powers of perception: "It is sometimes assumed that police officers, because of their training and experience, are more accurate perceivers than civilians are, and therefore more reliable witnesses. There is, however, little evidence to support this claim."
Necessity for an Evidentiary Hearing
Defense counsel Russo's declaration states that he did not consult experts and explains why it was a mistake not to have done so. Counsel also concedes a lack of tactical basis for failing to request CALCRIM No. 315, which petitioner asserts "easily satisfies the deficient performance prong of Strickland ...." Respondent's response is in essence that the declaration isn't persuasive, and that it is "common[]" for defense counsel to provide declarations to assist their clients on appeal by stating they lacked a strategic basis for their action. Such questions about the credibility of counsel's declaration cannot be resolved without an evidentiary hearing. (See In re Serrano (1995) 10 Cal.4th 447, 456.)
The declarations of the eyewitness identification expert and the firearm expert here go to the prejudice prong of the asserted ineffective assistance of counsel claim. Respondent has not discussed the substance of those declarations in its return or in its memorandum.
Although arguing that the habeas petition is without merit, counsel for respondent acknowledged at oral argument that if this court finds there are factual issues surrounding the identification of Grier then an evidentiary hearing is appropriate. Both parties agree that the appropriate place for that hearing is the superior court.
We conclude from our review that petitioner's entitlement to relief on the ground he received ineffective assistance at trial depends on an evidentiary hearing to consider the persuasiveness of the expert testimony. (Cal. Rules of Court, rule 4.551(f).) Acknowledging that "[a]ppellate courts are not equipped to conduct evidentiary hearings," we agree with the parties that the hearing in this petition should be held in superior court. (Rose v. Superior Court (2000) 81 Cal.App.4th 564, 574.) We therefore direct issuance of a new order to show cause, returnable in the superior court, conferring jurisdiction on that court to take evidence and to decide the petition.
DISPOSITION
We direct issuance of an order, returnable before the Presiding Judge of the Solano County Superior Court, directing respondent California Department of Corrections and Rehabilitation to show cause why petitioner is not entitled to relief on the ground he received ineffective assistance of counsel at trial on the grounds asserted in this petition. We confer jurisdiction upon the superior court to hold the required evidentiary hearing and to grant or deny relief based upon the law and the facts so determined. Our decision is final as to this court immediately. (Cal Rules of Court, rule 8.387(b)(3)(A).)
WE CONCUR: Stewart, P.J., Richman, J.