People v. Leon CA4/1 ( 2022 )

Filed 10/20/22 P. v. Leon CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080512
Plaintiff and Respondent,
v. (Super. Ct. No. SCS179354)
JOSE LUIS LEON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Garry G. Haehnle, Judge. Affirmed.
Robert E. Boyce, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL BACKGROUND
In 2005, a jury convicted Jose Luis Leon of second degree murder (Pen.
Code,1 § 187, subd. (a)). The jury also determined a principal in the offense
1 All further statutory references are to the Penal Code.
personally discharged a firearm causing death (§ 12022.53, subds. (d), (e)(1)),
and that the offense was committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)). In addition, the jury convicted Leon of the crime of
making a criminal threat (§ 422), and also found he personally used a firearm
during the offense (§ 12022.5), and that he committed that offense for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court
sentenced him to 40 years to life in prison, consisting of 15 years to life on the
principle offense, and a consecutive term of 25 years to life for the firearm
enhancement.
In 2006, Leon appealed his conviction, asserting (among other grounds)
there was insufficient evidence to prove he aided and abetted the victim’s
murder. In an unpublished opinion (People v. Leon (Mar. 25, 2008,
D048306) [nonpub. opn.]), this court rejected the assertion and affirmed the
judgment.
In 2019, Leon filed a petition to recall his sentence under former
section 1170.95.2 The trial court appointed counsel and solicited briefing.
The court reviewed the record of Leon’s conviction, including transcripts, jury
instructions, appellate briefs, and the opinion of this court in case no.
D048306. It then denied Leon’s petition by written order, finding that Leon
was not convicted on a probable consequence theory or on a felony murder.
The court found Leon was a direct aider and abettor who shared the
perpetrator’s intent to kill and was an active participant in the crime.
2 Former section 1170.95 was renumbered as section 1172.6 without
substantive change on June 30, 2022. (See Stats. 2022, ch. 58 (Assem. Bill
No. 200) § 10, eff. June 30, 2022.) We shall refer to the subject statute by its
current number throughout this opinion.
2
In 2020, Leon appealed the court’s order denying his petition to recall
his sentence to this court. We appointed appellate counsel. Counsel filed a
brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) stating he
had not been able to identify any arguable issues for reversal on appeal, and
asked the court to review the record for error as mandated by Wende. We
offered Leon the opportunity to file his own brief on appeal, but he did not
respond. We reviewed the entire record as required by Wende and Anders v.
California (1967) 386 U.S. 738 (Anders), and discovered no arguable issues
for reversal. We affirmed the order denying Leon’s petition to recall his
sentence under section 1172.6 in an unpublished opinion. (People v. Leon
(Dec. 8, 2020, D077745) [nonpub. opn.].)
On May 11, 2022, Leon filed a second petition to recall his sentence
under section 1172.6 and for appointment of counsel. On May 16, 2022, the
trial court summarily denied Leon’s petition in a written order. The court
first noted that it had previously reviewed the first petition, the return, and
the reply, and had found Leon failed to make a prima facie showing that he
was entitled to relief; it had previously found he aided and abetted the actual
killer with the intent to kill. Reviewing the second petition, the court found
Leon did “not set for[th] any change of circumstances” since the first denied
petition to allow Leon to “relitigate this issue.”
On June 9, 2022, Leon appealed the order denying the second petition.
This court, again, appointed appellate counsel. Appellate counsel, again,
filed a Wende brief, stating counsel has not been able to identify any arguable
issues for reversal on appeal and asks this court to review the record for error
as mandated by Wende and Anders. We offered Leon the opportunity to file
his own brief on appeal and, again, he did not respond.
3
The facts of the offense were discussed in the first appeal affirming the
judgment of convictions. (People v. Leon, supra, D048306.) We will not
repeat the facts here.
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks us
to review the record for error. To assist the court in its review, and in
compliance with Anders, supra, 386 U.S. 738, counsel has identified the
following possible issue that was considered in evaluating the potential
merits of this appeal: “In considering the section 1172.6 petition, whether
the proper procedures were followed and whether the petition was properly
ruled upon.” We have reviewed the entire record as required by Wende and
Anders. We have not discovered any arguable issues for reversal on appeal.
Competent counsel has represented Leon on this appeal.
DISPOSITION
The order denying Leon’s petition for resentencing under section 1172.6
is affirmed.
DO, J.
WE CONCUR:
McCONNELL, P. J.
BUCHANAN, J.
4