Court of Appeal orders counsel for Racial Justice Act claim

Filed 1/27/ 26; Certified for P ublicat ion 2/19 /26 (ord er attac hed) IN THE COURT OF APPEAL OF THE STATE OF CALIFO RNIA SECOND APPELL ATE DISTRIC T DIVISION ONE In re TOMMIE LAWSON LYNEX, on Habeas Corpus. B 344569 (Los Angeles Co unty Super. Ct. No. P A0341 26) ORIGINAL PROCE EDING; petiti on for writ of h abeas corpus, Kevin S. Ro senberg, Judge. Petition cons trued as a petition for writ of mandate. Pet ition g ranted. Tommie Lawson Ly nex, in pro. per., for Petition er. David Lee, Court Co unsel, for Respo ndent Superi or Court of Los Angeles Coun ty. Nathan J. Hochman, District Attorn ey of Los Ang eles County, Cassandra Thorp an d Matthew Brown, Deputy District Attorneys, for R eal Party in Interest the People of the State of California. __________________ __________

2 In 2000, a jury convicted pet itioner Tom mie Lawson Lynex of first degree murd er and fo und true a firearm enhanceme nt allegation under Pe nal Code sectio n 12022.53, subdivision (d). 1 The trial court sent enced Lynex to 50 years to li fe in prison. Approximately 20 y ears later, the Legislature en acted the California Racial Ju stice Act of 20 20 (Ra cial Justice Act or t he Act; Stats. 2020, ch. 317), which a uthorizes prison ers to see k habeas relief o n the ground th e state so ught or obtained the ir convictions or sente nces based on r ace, ethnicity, or nationa l origin. (Standards of Review & Ap plicable Law, part B, pos t [describing the Act].) In 2025, Ly nex, who claim s to be an African American m an, 2 filed a petition f or writ of habe as corpus under the Racial Ju stice Act. Lynex attached to his petition a chart from the Los Angeles County District Atto rney ’s Office (District Attorney) that discl oses the rac ial and ethnic makeup of individuals who wer e charged with murder and a firearm enhancement under section 1202 2.53, subdivisi on (d) in 19 98, 199 9, and 20 00. A mong other thin gs, the chart s hows that the District Attorney ch arged far more Black defend ants with 1 Undesignated stat utory references are to the P enal Code. When Lynex perpet rated the murd er in 1999, s ection 1202 2.53, subdivision (d) provi ded in pertinen t part: “[A]ny person wh o is convicted of a felony specified in su bdivision (a), [e.g., murder,] . . . and wh o in the commis sion of that fe lony intentionally and pe rsonally dischar ged a firearm and proximately caused. . . death, to a ny person other than an accomplice, shall be punished by a term of impris onment of 25 years to life in th e state prison, which shall b e imposed i n addition and consec utive to the pu nishment pre scribed for that felony.” (See Stats. 1998, ch. 936, § 19.5.) 2 (See fn. 5, post.)

3 murder and the fire arm allegatio n than White de fendants d uring that three-year peri od. Lynex soug ht appointm ent of couns el in his petition. The tri al court denied Lynex’s peti tion in its entirety. We issue a writ of m andate directin g the trial cour t to vacate its order den ying Lynex’s p etition. First, we conclud e the trial court erred in ruling tha t Lynex had to ma ke a prima f acie showing of entitlem ent to relief to s ecure appoin tment of co unsel. Rather, to obtain co unsel, the Raci al Justice Act r equires h abeas petitioners to plead a plausible al legatio n of a violation of the Act. Second, the trial cou rt’s denial of L ynex’s request for counse l was erroneous because regardles s of whethe r he satisfied t he minimal pleading standard g overning that r equest, the co urt was un aware of its discretion to g rant him leave to amend th e petition to plead a plausible allegati on of a Ra cial Justice Act violation. Lastl y, the trial court erred in invoking the prohibition on successi ve habeas petitions because Lynex wa s not required to address procedural bars to r elief at this ini tial stage of t he proceedi ngs. Upon issuance of ou r writ of mand ate, the trial c ourt shall a ssess whether Lynex’s pet ition states a plausible clai m under the Racial Justice Act, a nd, if it finds L ynex failed to satisfy that standard, then the c ourt shall consi der whether t o exercise its discretion to permit him to file an amended plea ding.

4 PROCEDURAL B ACKGROUND 3 We summarize only those facts pert inent to our d isposition of this writ proc eeding. Lynex fatally shot a nother man in 19 99. In 2000, a ju ry convicted Lynex of f irst degree mur der and foun d true a fir earm enhancement allega tion under secti on 12022.5 3, subdivisi on (d). The trial court sent enced Lynex to a prison term of 50 years to life. This court affir med the judgm ent in an unp ublished op inion. (People v. Lynex (J uly 17, 2 001, B 145 639) [nonpu b. opn.] at pp. 1, 5.) 4 In January 20 24, Ly nex filed a peti tion in the tri al court for writ of habeas corpu s under the Raci al Justice Act. Lynex claimed, inter alia, t he police failed to preserve th e victim’s clothing and the firearm enh ancement v iolated the Ra cial Justice Act’s prohibition on imposition of a sentence bas ed on a defendant’s race. T he trial court de nied the peti tion in April 2024. 3 We derive our Proc edural Backgro und in part fr om admissions in the p arties’ briefing, undisputed a spects of th e trial court’s ruling, and a ssertions made by the Distric t Attorney that Lynex does not disp ute in his reply brief. (See As sociation fo r Los Angeles Deputy Sheriffs v. Count y of Los Ange les (2023) 94 Cal.App.5th 76 4, 772, fn. 2, 773– 7 74 (Association for Los Angeles Deputy Sheriffs) [employ ing this app roach]; see also Reygoza v. Superior Court (1991) 2 30 Ca l.App.3d 514, 519 & fn. 4 [criminal case in wh ich the Court of Appeal assu med that an assertion made by t he respondent was correct bec ause the “defendant did not d ispute [the] resp ondent’s clai m in his reply”].) 4 We, sua sponte, ta ke judicial notic e of the prior opinio n affirming the judgm ent. (Evid. Cod e, §§ 452, su bd. (d), 459.)

5 On January 2, 2025, Lynex filed an other petition for writ of habeas corpus unde r the Racial Ju stice Act in th e trial cour t. Lynex requested ap pointment of co unsel to prep are a discov ery motion under the Ac t, and raised t hree claims: (1) the police improperly disposed of the victim’s property; (2) t he police’s identification proce dures were undu ly prejudici al and impermissibly suggestive; a nd (3) there exist racial di sparities in charging and senten cing criminal de fendants. 5 Included with Lyne x’s petition is a chart he obtained from the District Attorne y that shows fil ings and decli nations regarding charges f or murder with a firearm all egation und er section 12022.53, s ubdivisio n (d) for the years 19 98, 1999, and 2000. 6 We reproduce th a t chart below: 5 In a declaration Ly nex filed in sup port of the pe tition, he identified himself as an African Am erican man. 6 Although the chart ’s heading indic ates it covers “ CALENDAR YEA RS 1997 - 200 0,” the District Attorney represents the chart shows “no filin gs from 199 7” because section 12022.53 di d not beco me effectiv e until Januar y 1, 1998.

6 On February 13, 20 25, the trial co urt denied Ly nex’s habeas petition. 7 The court found Ly nex’s Racial Justice Act claims were success ive and thus pr ocedurally b arred. The court also found Lynex fai led to allege f acts showing th at the polic e’s destruction of the vi ctim’s property “was tinged b y explicit o r implicit racial anim us,” or that raci al animus or bias played any role in the police’s i dentification pr ocedures. Ad ditionally, the court ruled Lynex fa iled to “make any specific alle gation of r acial disparity in the pros ecution’s seekin g or obtainin g conviction s” “or raci al disparity i n sentencing.” Last ly, the court sta ted: “Prior to the court a ppointing couns el and giving leave for c ounsel to amend the petitio n, [Lynex] must first allege f acts that w ould 7 The trial judge wh o denied this h abeas petition is not the judicial officer who sentenced Lyne x.

7 establish a violatio n of section 745, subd ivision (a) to m ake a prima facie showing that he is enti tled to relief. (§ 1473, subd. (e).) Because [Lynex] has fai led to make a prima faci e showing establishin g a violation of section 745, subdivision (a), [Lynex] is not entitl ed to appoint ment of counsel under section 1473, subdiv ision (e).” 8 On March 10, 2025, Lynex filed in t his court a pe tition for writ of habeas corpu s in pro. per. O n June 4, 20 25, the court clerk directed the P eople to file an opposition to the petition by July 2, 2025. The People did not re spond to the c lerk’s correspondence. On August 22, 2025, this court const rued Lynex’ s pending habeas petition as a petition for writ of mandate and ordered the trial court either to (1) vacate its Febru ary 13, 2025 order “denying [Lynex’s] r equest for appo intment of cou nsel in preparation for filin g a Racial Jus tice Act petitio n” and issu e a new order appointin g counsel for Ly nex, or (2) sho w cause w hy this court should no t issue a writ of mandate di recting the trial court to do so. The t rial court’s coun sel thereafter submitted a minute order from t he trial court d ated Septem ber 5, 2025. In th at minute or der, the trial court st ated: “The co urt respect fully declines to vacate it s February 13, 2025 order denying .. . Lynex’s request for appointment o f counsel to a ssist in the preparation of filing a Racial Just ice Act petition. As noted i n the 8 As we explain in o ur Standards of Review & A pplicable Law, parts B. 1–B. 2, post, section 745, s ubdivision (a) s ets forth four categories of co nduct that est ablish a violat ion of the R acial Justice Act, and sec tion 1473, su bdivision (e) gov erns, inter alia, the appointment of counsel for habe as petitioners raising R acial Justice Act claims.

8 court’s February 13, 2025 order, [L ynex’s] claims are proced urally barred and he failed to make a pri ma case [sic ] for r elief und er the RJA.” On October 16, 202 5, this court ord ered the trial court to show cause why a p eremptory writ should not iss ue directin g the trial court to vacate its February 1 3, 202 5 order and issue a new order appointing co unsel for Lynex. Th ereafter, t he Distric t Attorney filed a ret urn in oppositio n to the petit ion for writ of mandate on behalf o f the People, a nd Lynex filed a reply. STANDARDS OF REVIEW AND AP PLICABLE LA W A. Standards of Revi ew “[W]hen the issue [o n review] . . . is purely legal, such as the proper interpret ation and app lication of a st atute or constitutional provi sion, our review is de novo.” (See In re Lugo (2008) 164 C al.App.4th 152 2, 1535.) “ Our funda mental tas k in interpreting a statu te is to ascerta in the Legisla ture’s intent so as to effectuate its p urpose. [Citati on.] We begin with the t ext of the statute and give the words their usual mean ing while construing them in l ight of the stat utory framewo rk as a wh ole. [Citation.] If the st atutory langua ge i s unambiguous, then its plain meaning contr ols. [Citation.] If the langua ge ‘ “ ‘permits more than one reaso nable interpret ation, courts m ay conside r other aids, such as t he statute’s pu rpose, legislat ive history, and public policy.’ [Cita tion.] . . . . ” ’ [Citation.]” (Peo ple v. Cart er (2023) 97 Cal.App. 5th 960, 967 (Carter).) “Discretionary decis ions by the tri al court are ge nerally subject to appellate review under th e abuse of dis cretion standard to determi ne if they were within the bo unds of so me

9 applicable legal crit eria.” (People v. Hodge (202 4) 107 Cal.App. 5th 985, 998.) B. The Racial Justice Act In 2020, the Legisl ature enac ted the Ra cial Justice Act. (McIntosh v. Sup erior Court (2025) 110 Cal.App.5t h 33, 39, 43 (McIntosh).) “The p urpose of the [Ac t] is to ‘purg e racial discrimination from our criminal jus tice system’ [citation]” (McIntosh, at p. 43), and to “ ‘ensure tha t race plays no role at all in seeking or obtain ing convictions o r in sentenci ng’ [citatio n]” (People v. Lawson (2025) 10 8 Cal.App. 5th 990, 993 (Lawson), quoting Stats. 202 0, ch. 317, § 2, subd. (i)). “In passing the [A]ct, the Legislature reco gnized that raci al bias ‘persi sts’ in our criminal justice syst em ‘because co urts generally only addres s racial bias in i ts most extre me and blatant form s.’ [Citatio n.] The [A]ct acknowled ges that ‘all p ersons possess i mplicit bia ses’ that ‘impact the cri minal justice sy stem,’ and these biases ‘tend to disfavor people of co lor.’ [Citation.] ” (Lawson, a t p. 993, quoting Stats. 2020, ch. 31 7, § 2, sub ds. (c) & (g).) The Racial Justice Act added secti on 745 (see Stats. 2020, ch. 317, § 3.5), which sets for th legal sta ndards governin g a claim for relief under the Act. (See Stan dards of Revie w & Applic able Law, part B.1, post.) “ ‘[T]he [Act al so] amended section 147 3, which identifies bas es for prosecutin g a petition f or writ of habeas corpus, to ad d a subdivisio n governing the litigation of R[acial Justice Act] claims [,]’ ” to wit, su bdivision (e) of the statute. (See McInt osh, supra, 110 Cal.App.5th at p. 43.) We next describe in furt her detail provi sions of sectio n 745 and subdivision (e) of se ction 1473 th at are pertinent to this wri t proceeding.

10 1. Section 745 “The state shall not seek or obtain a criminal co nviction or seek, obtain, or imp ose a sentence o n the basis o f race, ethni city, or national origin.” (§ 745, subd. (a).) “[S] ection 745, subdivision (a). . . sets forth f our categories of con duct that, if proven by a prepond erance of the evi dence, estab lish a viola tion of the [Racial Justic e A]ct.” (Lawso n, supra, 108 Cal.App.5th at p. 998.) “The defendant doe s not need t o prove intentional discrimination.” (§ 745, subd. (c)(2).) As relevant here, se ction 745, sub division (a)(3) p rovides a violation of the Act occurs if: “The d efendant w as charged or convicted of a more serious offense t han defenda nts of other races, ethnicities, or national origi ns who have e ngaged in si milar conduct and are sim ilarly situated, and the evide nce establi shes that the prosecution more frequentl y sought or o btained convictions for more serious offenses against pe ople who sh are the defendant’s race, ethnicity, or n ational origin in the coun ty where the convictio ns were sought or obtained. ” (§ 745, subd. (a)(3).) Similarly, section 7 45, subdivisio n (a)(4)(A) appli es when: “A longer or mor e severe sentence w as imposed on the defe ndant than was imposed o n other similarl y situated in dividuals convicted of the sam e offense, and l onger or more severe sentences were mor e frequently im posed for tha t offense on people that share th e defendant’s r ace, ethnicity, or national origin than on defen dants of other r aces, ethniciti es, or natio nal

11 origins in the count y where the sen tence was i mposed.” (§ 745, subd. (a)(4)(A).) 9 Section 745, subdivi sion (e) sets fort h the remedi es available in the eve nt the trial cour t finds a viol ation of subdivision (a). (See § 745, subd. (e).) For insta nce, “After a judgment has been entered, if the c ourt finds tha t a convicti on was sought or obtai ned in violatio n of subdivisi on (a) [of section 745], t he court shall v acate the conviction and sente nce, find that it is legally invalid, and o rder new procee dings consistent with sub division (a). If the court finds that the o nly violation of subdivis ion (a) that occu rred is base d on paragraph (3) of sub division (a), the court may modify the judgment to a lesser included or less er related of fense. On resentencing, the co urt shall not i mpose a new s entence gre ater than that previousl y imposed.” (I d., subd. (e)(2)(A).) Anot her provision of subdivi sion (e) states: “After a judg ment has b een entered, if the court finds that only the sentence w as sought, obtained, or impose d in violation o f subdivision (a), the cou rt shall vacate the sen tence, find that it is legally i nvalid, and impose a new sente nce. On resente ncing, the cou rt shall no t impose a new sente nce greater tha n that previo usly impos ed.” (Id., subd. (e)(2)(B).) Subdivision (h) of se ction 745 defin es certain ter ms used in the statute, includin g “ ‘[m]ore frequ ently sought or obtained ’ or 9 Neither party clarifies whether a firear m enhancement under section 12022.53, subdivisio n (d) constitute s an “ offen se” for purposes of secti on 745, subdi vision (a)(3) or a “sentence ” under subdivision (a)(4)(A). We need not decide that issue because its resolutio n would not im pact our dispo sition of th e instant writ petition.

12 ‘more frequently im posed’ ” (§ 745, subd. (h)(1)), “ ‘[p]ri ma facie showing[,]’ ” (id., su bd. (h)(2)), and “ ‘[s]imilarly s ituated’ ” (i d., subd. (h)(6)). Of no te, “ ‘[m]ore fre quently sough t or obtain ed’ or ‘more frequently im posed’ means [in pertinent p art] that the totality of the evide nce demonstrat es a significan t differ ence in seeking or obtaining convictions or in imposing se ntences comparing individu als who have e ngaged in sim ilar conduc t and are similarly situate d, and the pros ecution cannot establish race- neutral reasons for the disparity.” (Id., subd. (h)(1).) “The evidence may includ e statistical ev idence, aggreg ate data, o r nonstatistical evide nce. Statistica l significance is a factor t he court may consider, but is not neces sary to esta blish a signif icant difference. In evalu ating the total ity of the evide nce, the co urt shall consider whet her systemic an d institution al racial bi as, racial profiling, and historical patt erns of racially biased policing and prosecution ma y have contribu ted to, or caus ed differen ces observed in, the dat a or impacted the availabili ty of data o verall.” (Ibid.) 2. Section 1473, Subdivision (e) As a preliminary m atter, we note that the Distric t Attorney assumes that the ve rsion of section 1473, subdivision (e) that became effectiv e on January 1, 2026 ap plies to the ins tant writ proceedings because it went into eff ect “before res olution of this petition . . . .” Lyne x makes that assumption as well. Accordingly, we pro ceed on the ass umption that version of subdivision (e) of se ction 1473 ap pl ies. (See Willi ams v. Su perior Court (1964) 2 26 Ca l.App.2d 666, 674 [“ ‘An expre ss concessi on or assertion in a brief i s frequently tre ated as an ad mission of a legal or factual poin t, controlling in t he dispositi on of the ca se[,]’ ” second & third italic s added]; see a lso People v. Tr an (2022)

13 13 Cal.5th 1 169, 1206 – 1207 [noting tha t statutory amendm ents may apply retroacti vely to crimina l cases under c ertain circumstances]; Cou nty of Los Angele s v. Niblett (2025) 116 Cal.App. 5th 454, 458, fn. 2 [assuming for the sake of an appeal that the par ties ident ified the ve rsion of the rele vant statute that governe d review of the trial court’s rul ing].) Section 1473, subdi vision (e)(1) clar ifies that “[a ]ny and all definitions and legal thresholds spec ified in Sectio n 745 are controlling for purp oses of claims alleging a viol ation of subdivision (a) of Se ction 745 cont ained within a habeas peti tion filed under this sect ion.” (§ 1473, subd. (e)(1).) Similar ly, subdivision (e)(2) of section 1473 e mploys the foll owing lang uage to incorporate by ref erence the disco very procedure s provide d in section 745: “A peti tioner, or their c ounsel, may file a motio n for relevant evidence u nder subdivisio n (d) of Sectio n 745 upon the prosecution of a peti tion under this subdivision, o r in prepar ation to file a petition.” (§ 1473, subd. (e)(2)). Subdivis ion (d) of section 745 in turn permits a defe ndant to move for “disclosure . . . of all evidence relev ant to a pote ntial violati on of subdivision (a) [of se ction 745] in t he possession or control of the state,” which motio n is subject to a “good cause” standard. (See § 745, subd. (d).) Regarding appoint ment of counsel for a habea s petition raising a Racial Jus tice Act claim, section 1473, subdivision (e)(5) provides: “The petit ion shall state if the petition er requests appointment of cou nsel and the co urt shall app oint counsel if the petitioner cannot aff ord counsel and either the pe tition plead s a plausible allegation of a violation o f subdivision (a) of S ection 745 or the State Public Defender reques ts counsel be appointed.

14 Newly appointed co unsel may am end a petition f iled before their appointment.” (§ 14 73, subd. (e)(5), italics added.) The statute require s the trial court to “issue an o rder to show cause why reli ef shall not be granted and h old a n evidentiary hearing ” “[i]f the petiti oner makes a prima facie showing . . . .” (See § 1473, subd. (e)(7)(B).) The statute also res tricts the trial c ourt’s authori ty to invoke procedur al bars to a habea s petit ion raising a R acial Justice Act claim: “ A petition raisi ng a claim of this nature for the first time, or on the basis of ne w discovery pro vided by t he state or other new e vidence that co uld not have been previo usly known by the petiti oner with due d iligence, shall not be dee med a successive or abusiv e petition.” (§ 1473, subd. (e) (3).) Lastly, “[i]f the cour t finds a violat ion of subdivis ion (a) [of section 745], the cou rt shall impose one or more of the appli cable remedies outlined i n subdivision (e) of Section 7 45.” (See § 147 3, subd. (e)(8).) As we observed in our Standards of Review an d Applicable Law, par t B. 1, ante, sect ion 745, sub division (e) authorizes a court t o, inter alia, re duce the sente nce impose d on the defendant. 3. The Legislative F indings Accompan ying the Amendments to Se ction 1473, S ubdivision (e) and McIntosh ’s Interpretation of th e Statute As we noted above, section 1473, subdivision (e) (5) requires the trial court to ap point counsel for an indigent habeas petitioner if he or sh e “pleads a pl ausible allega tion of a viol ation of subdivision (a) of Section 745 . .. .” (See § 14 73, subd. (e)(5).) This text is terse. A ccordingly, we co nsider the fi ndings incl uded in the legislation th at added this provision to th e Racial Ju stice Act as an aid in inte rpreting the “pl ausible alle gation” stan dard

15 set forth in the stat ute. (See ibid.; see also Carter, supr a, 97 Cal.App.5th at pp. 967 – 96 8 [“ If the [sta tutory] la nguage ‘ “ ‘permits more than one reasonable interpretatio n, courts ma y consider other aids, such as the sta tute’s purpose, legislative history, and public policy. ’ [Citation.] .. .” ’ [Citation. ] [¶] ‘In considering the pur pose of legislat ion, statemen ts of the int ent of the enacting body co ntained in a pr eamble, while not conclus ive, are entitled to consi deration.’ [Cit ation.] Althou gh such uncodified statemen ts do not confer power, they ‘ properly m ay be utilized as an aid in construing a st atute.’ ”].) In the legislation a mending sectio n 1473, sub division (e) effective January 1, 2026, the Legislatu re empha sized the “extremely low” sho wing a petitio ner must mak e to obtain counsel: “The [Act’s ] threshold to se cure counsel i s extremel y low, and yet courts have denied co unsel to litig ants raising R [acial Justice Act] claims far more than they h ave appoint ed counsel. . . . The Le gislature reaffir ms that the t hreshold showing for appoint ment of counsel does not req uire a prim a facie showing, as correctl y held by McInt osh v. Superi or Court (2 025) 110 Cal.App.5th 3 3, and sho uld be const rued as a mini mal pleading requireme nt.” (See Stat s. 202 5, ch. 721, § 1, subd. (b) [Assem. Bill No. 107 1, filed with S ec’y of State o n Oct. 13, 2025 ]; see also Stats. 2025, ch. 721, § 3 [a mending Pen. Code, § 147 3].) Because the Legisla ture cited McInt osh with ap proval, we detail its analysis of the pleading s tandard gover ning reque sts for appointment of cou nsel. (Cf. People v. Brown (2 016) 247 Cal.App. 4th 1430, 143 6 [“If the Le gislature amends or reenacts the statute without changi ng the interpr etation pl aced on that statute by t he courts, ‘ “the Legislature i s presume d to have been aware of, and acquiesced in, the courts’ constructi on of

16 that statute.” ’ ”].) I n McIntosh, a Bl ack criminal defendant filed a habeas petition ra ising claims un der the Racia l Justice Ac t, and sought appointment of counsel to he lp him prosec ute his pet ition. (McIntosh, supra, 110 Cal. App.5th at pp. 39–4 0.) The defe ndant maintained, among other things, th at the San Di ego District Attorney’s Office vio lated the Act b y “charg[ing] g ang enhancements (§ 18 6.22, subd. (b)) and enhance ments for personal use of a fir earm (§ 1202 2.53, s ubd. (d)) more fr equently against similarly sit uated people who share [the defendant’s ] race than others . . . .” (See McIntosh, a t p. 40.) Th e trial court denied the defendant’s req uest for counsel based on its finding tha t he had not made the pr ima facie show ing required f or issuance of an order to show cause. (Id. at p. 39.) The defendan t subseque ntly filed a habeas petiti on in the Court of Appeal, w hich the appellate court cons trued as a peti tion for writ of mandate concerning the trial court’s denial of the defendan t’s request for counsel. (See id. at pp. 40– 41, 4 6 – 47.) The McIntosh court issued a writ of man date directing t he trial court to vacate its order denyin g the habea s petition an d reconsider the defen dant’s request for appointm ent of couns el. (See McIntosh, supra, 110 Cal.App.5th at pp. 39–40, 46, 48.) The Court of Appeal hel d, “[T]he plain language of s ection 1473, subdivision imp oses a duty on trial courts to c onsider w hether indigent petitioners who request cou nsel . . . are e ntitled to appointed counsel b ased on an ass essment of the adequacy of the factual allegations i n the habeas c orpus petition, not an assessment of the o verall sufficiency of the prim a facie sho wing that must be met to obtain a n [order to s how cause].” (M cIntosh, at pp. 39–40.) McIn tosh explained the version of s ection 147 3, subdivision (e) in eff ect prior to Jan uary 1, 202 6 “require[d]

17 courts to determine whether ‘ the peti tion alleges fa cts that would establish a violation of [the Act ].’ ” (See McIntosh, at p. 44.) On the other hand, that prior version of the statute “require[d] c ourts to determine wheth er ‘ the petitioner has made a prima facie showing of entitleme nt to relief.’ ” (See i bid.) 10 McIntosh held, “[S]ection 1473, su bdivision li mits the inquiry before the a ppointment of c ounsel to an assessment of the facial sufficiency of the factual all egations in the petition, a nd to consideration of wh ether they ade quately allege a violation of the [Act]. By contrast, t he inquiry befor e issuance of an [order t o show cause] is mani festly broader t han mere revi ew of the adequacy of the fact ual allegation s that appear in the petition.” (McIntosh, supra, 110 Cal. App.5th at pp. 44–4 5.) The cour t found the two inquiries dif fer in these resp ects, regardle ss of whet her “the prima facie sho wing that has long governed when an [or der to show cause] w[ou ld] issue . . . [in] habeas corpu s proceedi ngs” applies to Racial Ju stice Act habea s petitions or the “definit ion of ‘prima facie showin g’ . . . found in s ection 745, s ubdivision (h)(2)” instead governs. (S ee McIntosh, at pp. 41, 43 – 45.) 11 “The trial 10 Conversely, the sta tute now requir es the appoin tment of counsel for an indig ent habeas pe titioner if “the p etition ple ads a plausible allegation of a viol ation of [the Racial Justice Act,]” (see § 1473, subd. (e)(5)), and obligates the court to “d etermine if the petitioner has made a prima facie showing” (see i d., subd. (e)(7)(A)), inst ead of “ ‘a pri ma facie showin g of entitle ment to relief ’ ” (see Mc Intosh, supra, 110 Cal.App.5th at p. 44, some italics omitted). 11 Section 745, sub division (h)(2) sta tes a “ ‘[p]rim a facie showing’ ” has been made if “the d efendant prod uces facts t hat, if true, establish that there is a subst antial likeli hood that a violation of subdivis ion (a) occurred. For purpose s of this se ction,

18 court therefore er red when it denie d counsel on the ground that [the defendant] faile d to meet the prima facie sho wing that i s required to obtain a n [order to show cause].” (Id. at p. 46.) The McIntosh court also provided g uidance to the trial court for its reasses sment of the de fendant’s req uest for cou nsel. (McIntosh, supra, 110 Cal. App.5th at pp. 47–4 8.) Specifically, “The purpose of the informal first st age [ ] where . . . the cour t decides whether to appoint counsel when R[acial Justice Ac t] claims are raised[ ]i s to allow for t he ‘identificati on of facial ly deficient petitions,’ ones that are s o clearly lackin g in merit the court is justified in ‘ reject[ing] them summarily, without requiring formal ple adings.’ [Cita tions.]” (Id. at p. 47.) Alt hough “ ‘ “[c]onclusory alle gations made without any e xplanation of the basis for the allegati ons” ’ are inad equate to esta blish a petitioner’s initial p leading burden in habeas pr oceedings[,] [citation]” “the initi al pleading re quirements . .. ‘do[ ] not place upon an indigent pr isoner . . . any burden of comp lying with technicalities; [they] simply deman d[ ] of him a measure of frankness in disclosi ng his factual s ituation.’ [Cit ation.]” (I d. at p. 48.) “ ‘[T]o assist the cou rt in determinin g the petitio n’s sufficiency, the c ourt may re quest an informal res ponse fro m the petitioner’s custodia n or the real pa rty in interest.’ [Citatio n.]” (McIntosh, supra, 110 Cal. App.5th at pp. 42– 43; see also id. at p. 47 [“The informal response and re ply, if reques ted, serve t o assist the court in t his ‘screening fu nction.’ ”].) Further, as we note in greater deta il in Discussion, part B, post, McInto sh a ‘substantial likeli hood’ requires more than a mere possibil ity, but less than a stan dard of more li kely than not.” (§ 745, subd. (h)(2).)

19 recognized the trial court has discret ion at the in formal first stage to permit ame ndment of the petition or den y the petiti on without prejudice. (McIntosh, at p. 47.) DISCUSSION As we noted earlier, section 1473, subdivision (e)(5) provides in relevant part that a h abeas petition r aising a cl aim under the Racial Ju stice Act “shall state if the pe titioner req uests appointment of cou nsel and the co urt shall app oint counsel if the petitioner cannot aff ord counsel and. . . the petit ion pleads a plausible allegation of a viol ation of sub division (a) of Section 745. .. .” (See § 1473, s ubd. (e) (5).) The Distri ct Attorney “do[es] not dispute that Lynex cannot af ford couns el.” The District Attorne y nonetheless a rgues we shou ld deny wr it relief to Lynex beca use he did not plead a plausi ble allegat ion of a violation of the Act. The District At torney further maintain s the trial court correctly found that Lyn ex’s habeas petition is procedurally barred. In our Discussion, p arts B and C, p ost, we reject these arguments. Before turning to those issues, we e xplain that the trial court applied t he wrong legal standard in assessing L ynex’s request for counsel. (Discussion, pa rt A, post.) 12 12 In a letter filed on May 23, 202 5, Lyne x requested judicial notice of a n otice of filing of a notice of ap peal seekin g review of an ord er the trial court is sued on Febr uary 28, 20 25. We deny Lynex ’s request for judicia l notice beca use he fails to explain what releva nce this docume nt has on our review of t he trial court’s Februar y 13, 2025 or der den ying his habea s petition. (Association for Los Angeles Deputy Sheriffs, supra, 94 Cal.App.5th at p. 792, fn. 23 [n oting that an appell ate court

20 A. The District Attor ney Concede s, and We Ag ree, the Trial Court Erred In Requiring Lynex To Ma ke a Prima Facie Sho wing of Entitleme nt to Relief To Secure Appointm ent of Counse l The District Attorne y acknowledges the trial cour t “applied the wrong legal stan dard” (boldface omitted) whe n it denied Lynex’s request for counsel based o n its conclusio n he “fail ed to make a prima facie showing that h e was entitle d to relief.” The District Attorney maintains Lynex’s ent itlement to cou nsel hinges on whether h e pleaded a “ ‘ plausible alle gation of a violation of [the Rac ial Justice Act]. . . . ’ ” (Quoting § 1 473, subd. (e)(5).) We ag ree. (Procedural Background, ante [noti ng the trial court denie d Lynex’s requ est for counsel on the gro und he failed to ma ke a prima facie sho wing of entitl ement to re lief].) B. We Reject the District Attorney ’s Contentio n We Should Deny Lyn ex Writ Relief on the Ground He Failed To Plead a Plausible Rac ial Justice A ct Claim Notwithstanding th e trial court’s e mployment of the wrong legal standard to as sess Lynex’s re quest for appo intment of counsel, the District Attorney argue s we should n ot remedy this error by way of a wr it of mandate becau se Lynex failed to “plead[ ] ‘a plausibl e allegati on of [a Rac ial Justice Act violation]’ ” for purp oses of section 1 473, subdivis ion (e)(5). I n particular, the Distr ict Attorney m aintains, (1) “T he bare rac ial breakdown of offend ers in a given p eriod does not raise any inference of bias,” a nd (2) Lynex “ made no showi ng that the re was any chargi ng rate dispar ity between similarly situated may deny a request for judicial notic e of materia ls not releva nt to its determination of the issues on re view].)

21 suspects, i.e., that s ome significant number of Wh ite people (or some other group) w ho murdered so meone with a gun could have been charged with murder with [a] gun allegati on [under section 12022.53, s ubdivisio n (d)], but w ere not.” By arguing that Ly nex cannot secur e appointm ent of counsel “even under the correct stan dard,” the D istrict Atto rney seems to be in voking the following rule of appell ate procedu re: “ ‘ “ ‘[A] ruling or de cision, itself corr ect in law, will not be disturbed . . . merel y because [it w as] given for a wrong reason.’ ” ’ ” (See Pe ople v. Camach o (2022) 14 C al.5th 77, 1 24.) That rule is inapplic able here. As we explain be low, regardl ess of whether Lynex plea ded a plausibl e allegation of a Racial J ustice Act violation, the tri al court’s denia l of Lynex’s re quest for appointment of cou nsel was errone ous because the court w as unaware of its discr etion to permit Lynex to am end his peti tion to satisfy the minimal pleading burde n governing his request f or counsel. “ ‘ “If the court’s dec ision is influenc ed by an erro neous understanding of ap plicable law or reflects an un awareness of the full scope of its discr etion, the court has not prope rly exercis ed its discretion under the law. [Citatio n.] Therefore, a discretion ary order based on an a pplication of i mproper criteria or incorre ct legal assumptions is not an exercise of informed discretion and is subject to reversal.” [Citation.] Si mply stated, “ an abuse of discretion arises if t he trial court b ased its decisi on on impermissible facto rs [citation] or o n an incorrect l egal standard.” ’ [Citati on.]” (Peo ple v. K.D. (2025) 110 C al.Ap p.5th 1, 19 (K.D.).) In asserting we may review the suffi ciency of Lyn ex’s pleading in the first instance under section 147 3,

22 subdivision (e)(5), t he District Atto rney overlook s a key discretionary compo nent of a trial c ourt’s ruling o n a reques t for appointment of cou nsel in this cont ext. Specifically, the Mc Intosh court explained, “D uring this initi al, informal st age,” the tr ial court “ ‘ has the authority to invite amended or su pplemental habeas corpus petiti ons in the inter ests of justice.’ [Citation.]” (See McIntosh, supra, 110 Cal.App.5th at pp. 46 –47.) McIntosh observed that “the p olicy of ‘[l]ibera lity in permit ting amend ment is the rule’ as it is in civil cases,” an d “[t]he avail ability of procedures permitti ng amendment of an unrepre sented petitioner’s petition is exceptionall y important in the contex t of R[acial Justice Act] claims given the sta ted objective of the Legislature that liti gants have me aningful opport unities to present their claims.” (See id. at p p. 47– 48.) 13 Thus, before ruling on a request to appoint coun sel, a trial co urt may ex ercise its discretion to per mit a defenda nt to amend his or her peti tion to satisfy section 14 73, subdivisio n (e)(5)’s plead ing standar d. As we explained in our Discussion, part A, ante, the trial court faulted Lynex for failing to m ake a prima f acie showin g of entitlement to relief under the Act, which is a m ore exacting showing than that r equired by sub division (e)(5) o f section 1 473. The trial court’s ruli ng predated: (1) McIntosh ’s cl arification th at (a) a request for appointment of counsel does not call for “an assessment of the o verall sufficiency of the prim a facie sho wing that must be met to obtain a n [order to s how cause]” an d (b) a 13 McIntosh further explained, “An i nexpertly draf ted petition may also a ppropriate ly be denie d without preju dice to filing a new petition that meets th e requirements for stating a habeas corpus claim.” (See McIntosh, supra, 110 Cal. App.5th at p. 47.)

23 trial court has discr etion to permit a defendant t o amend hi s or her petition to alleg e sufficient facts to secure ap pointment of counsel (see McInto sh, supra, 110 Cal.App.5th at pp. 40, 4 6– 48 [opinion issued on Mar. 28, 202 5]); and (2) the Legisl ature’s findings that (a) McIntosh “cor rectly held” “the t hreshold sh owing for appointment of c ounsel does not require a pri ma facie showing ” and (b) the standa rd for appoi ntment of counsel is “extremely low” and “should be cons trued as a minimal plea ding requirement” (see S tats. 2025, ch. 721, § 1, sub d. (b) [Asse m. Bill No. 1071, filed with Sec’y of S tate on Oct. 13, 2025 ]). Accordingly, when t he trial court de nied Lynex’s request for appointment of cou nsel, the court w as unaware of its discr etion to allow him to amend his petition to meet a pleadi ng standard that is lower than the pri ma facie showi ng required for issuance of an order to show cause. Because a “ ‘ “decision. . . influence d by . . . an unawareness of t he full scope of [the court’s] discretio n” ’ ” or “ ‘ “incorrect legal as sumptions” ’ ” is erroneous a nd “ ‘ “ subject to reversal ” ’ ” (see K.D., supra, 110 C al.App.5th at p. 19), we d o not agree with t he Distri ct Attorn ey’s appar ent argument t hat in denying Lynex’s req uest for counsel, the trial cour t merely c ited an erroneous re ason for arriv ing at the legally cor rect result. If the trial court ulti mately determ ines after issu ance of our writ of mandate that Lynex ha s not “plead[e d] a plausib le allegation of a viola tion” of th e Racial Ju stice Act (see § 147 3, subd. (e)(5)), the cou rt may then con sider whether to exercis e its discretion to grant Lynex leave to amend his pe tition. 14 14 Anticipating that Lynex may all ege facts showi ng “the existence of a large disparity in ch arges compare d to a grou p’s percentage of the po pulation,” the District Attorn ey argues s uch averments would no t “inherently ra ise[ ] a plausi ble allegat ion of

24 C. The Trial Court Erred In Denying Lynex’s H abeas Pe tition on the Gr ound It Was Pr ocedurall y Barred In its February 13, 2025 ru ling denying Lynex’s habe as petition, the trial co urt acknowledg ed that Lyn ex claimed t o have offered data “ ‘ show[ing] a pattern of higher chargi ng for peo ple sharing his race in Los Angeles Co unty.’ ” The c ourt found that Lynex’s Racial Justi ce Act claim pre dicated on th is data was “successive” and the refore “procedura lly barred” because the court had rejected a similar claim i n its April 20 24 order de nying his prior habeas pet ition. The District Attorne y argues the tri al court “prop erly invoked [this] proce dural bar[ ] to deny” Lynex’s habe as petition because he “has sho wn no justificat ion for his succ essive cla ims.” (Boldface omitted.) The District At torney further c ontends t he Legislature impliedl y preserved this procedural b ar in the A ct by carving out of the d efinition of “ ‘su ccessive or a busive petition[s]’ ” only th ose pleadings “ ‘raising a clai m of this nature for the first time, or on the basis of new discovery provid ed by the bias.” Specifically, t he District Atto rney mainta ins (1) “no one reasonably believes that gun murde rs are evenly distribute d throughout the coun ty”; and (2) “there is no reason to pr esume, in the absence of evide nce, that the . .. District Atto rney . . . w as not charging virtually every gun homici de as a murd er with the appropriate gun alle gation during t h[e] time” peri od in quest ion. We decline to rende r an advisory o pinion as to t he viability of allegations Lynex may include in an amended petition. If Lynex later alleges f acts indicative of a large dis parity in ch arges compared to a r acial group’s percentage of the population, th en the trial court may pass upon the s ufficiency of t hose aver ments at the appropriate j uncture.

25 state or other new e vidence that co uld not have been previo usly known by the petiti oner with due d iligence . . . .’ ” (Quoting § 1473, su bd. (e)(3).) In essen ce, the Dis trict Attorney maintains that at th e “initial” “ ‘screeni ng’ ” stage of the habeas proceedings (see McIntosh, supra, 110 Cal.Ap p.5th at p. 47), Lyn ex was required to anticipate the b ar on succes sive petitions and explain why he did not prev iously offer the aforemention ed data to support his Racial J ustice Act claim. We disagre e. Mc Intosh held that habeas petitio ners raising R acial Justice Act claims a re not required to “address a nd explain potential procedural bars” “to obt ain app ointment of counsel . . . .” (See McIntosh, supra, 110 Cal.A pp.5th at p. 45.) McIntosh explained that “sec tion 1473, subdivision limits the inquiry before the a ppointment of c ounsel to an assessment. . . of whether [the petitio n] adequately allege[s] a viol ation of the R[acial Justice Act,]” and does not call f or a “broader” assessment of whether the petit ioner is “ ‘entitl e[d] to relief’ ” under the statute. (See McIntosh, at pp. 44 – 45.) Accordingly, the tri al court erred in denyi ng Lynex’s req uest for counsel on accou nt of his failure to anticip ate and refute the potential applicabilit y of the procedural bar o n successive pet itions. We further note that whether the D istrict Attorn ey’s data is “evidence that co uld . . . have b een previously known by t he petitioner with due diligence” (see § 147 3, subd. (e)(3)) i s far from clear. The trial cour t did not mak e any findings on Lynex’s due diligence as to disco very of this evi dence. Further more, t he District Attorney ac knowledges: (1) Lynex obta ined the da ta in question through “a Public Records Act request” “from the L os Angeles County Dis trict Attorney’s Office,” and (2) the District Attorney respon ded to this Public Records Act re quest via

26 correspondence date d April 11, 2024. I n any eve nt, as we explained above, wh ether Lynex dil igently sought discovery of this evidence is not relevant to the trial court’s initial “assessment of the f acial sufficiency of the factua l allegatio ns in the petition [ ] and . .. whether they adequately a llege a viola tion of the R[acial Justic e Act].” (See Mc Intosh, supra, 110 Cal.App. 5th at pp. 44– 45.) DISPOSITION Let a writ of manda te issue directin g the trial co urt to (1) vacate its February 13, 2025 order d enying petition er Tommie Lawson Lynex ’s petition for w rit of habe as corpus, and (2) conduct furth er proceedin gs consistent with t his opinion. We deny the request for judicial notice Lynex filed on May 23, 2 025. BENDIX, J. We concur: ROTHSCHILD, P. J. M. KIM, J.

Filed 2/19/ 26 CERTIFIED FO R PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFO RNIA SECOND APPELL ATE DISTRIC T DIVISION ONE In re TOMMIE LAWSON LYNEX, on Habeas Corpus. B344569 (Los Angeles Co unty Super. Ct. No. P A034126) CERTIFICATIO N AND ORDER FOR PUBLICATION [NO CHANGE I N JUDGMENT] The opinion in the a bove-entitled matter filed on January 27, 2 026 w as not certified for publicatio n in the Official Reports. Fo r good cause, it now appears that the opi nion should be published in the Official Reports, and i t is so orde red. There is no change i n the judgment. CERTIFIED FOR P UBLICATION. __________________ ______________ ____________ __________ ______ ROTHSCHILD, P. J. BENDIX, J. M. KIM, J.