People v. Leon CA4/1 ( 2024 )

Filed 5/21/24 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, D081873
Plaintiff and Respondent,
v. (Super. Ct. No. SCD102189)
JOSE JUAN LEON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Frederick Maguire, Judge. Affirmed.
Patricia L. Brisbois, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Collette
C. Cavalier, Lynne G. McGinnis, and Ksenia Gracheva, Deputy Attorneys
General, for Plaintiff and Respondent.
MEMORANDUM OPINION1
Petitioner Jose Juan Leon appeals from the March 16, 2023 order
denying (at the prima facie stage) his petition for resentencing (Petition)
under Penal Code2 section 1170.95, renumbered and now section 1172.6. He
claims the trial court engaged in inappropriate factfinding and failed to
specify the portion of the record of conviction on which it relied; and instead
should have issued an order to show cause and set the matter for an
evidentiary hearing.
In an information filed in March 1994, the district attorney charged
Leon and codefendant Rodney Alexander Pimentel with the murder of Skip
Ruda. It further alleged that in committing the murder, Leon alone
personally used a deadly and dangerous weapon (a knife). The jury convicted
Leon of first degree murder (§ 187, subd. (a)) and found the personal use of a
weapon enhancement true (§ 12022, subd. (b)). However, the jury was unable
to reach a verdict as to Pimentel. The court sentenced Leon to 25 years to life
in prison on the murder count, plus one year for the weapon enhancement.
We affirmed the judgment in 1997. (See People v. Leon (Mar. 24, 1997,
D023772) [nonpub. opin.].)
Leon filed his Petition in 2020. The trial court summarily denied it in
August 2021. In December 2022 we reversed the order and remanded the
matter with instructions that it appoint counsel for Leon and conduct further
proceedings. (People v. Leon (Oct. 12, 2022, D079522) [nonpub. opin.].) On
remand, the court ruled Leon was statutorily ineligible for relief under
1 This case is appropriate for resolution by memorandum opinion
because it raises “no substantial issues of law or fact.” (Cal. Stds. Jud.
Admin., § 8.1; see People v. Garcia (2002) 97 Cal.App.4th 847.)
2 All further statutory references are to the Penal Code.
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section 1172.6, finding he was Ruda’s “only killer.” In making this finding,
the court relied on the record of conviction, which included a certified copy of
the abstract of judgment and our opinion in Leon, supra, D023772.
Effective 2019, the Legislature amended the Penal Code to “ ‘more
equitably sentence offenders in accordance with their involvement in
homicides.’ ” (People v. Curiel (2023) 15 Cal.5th 433, 448.) A defendant who
participated but was not the direct perpetrator in a murder can no longer be
convicted of murder based on imputed malice. (People v. Basler (2022)
80 Cal.App.5th 46, 54.) Rather, a murder conviction requires the defendant’s
personal actions and subjective intent. (Ibid.; see § 189, subd. (e) [“A
participant in the perpetration or attempted perpetration of a felony listed in
subdivision (a) in which a death occurs is liable for murder only if one of the
following is proven: [¶] (1) The person was the actual killer. [¶] (2) The
person was not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted the actual
killer in the commission of murder in the first degree. [¶] (3) The person was
a major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of Section 190.2.”].)
Section 1172.6 provides a mechanism for previously convicted defendants
who would not be convicted under current law to petition the court for relief.
(§ 1172.6, subd. (a).)
A trial court reviewing a section 1172.6 petition must first determine if
the petitioner made a prima facie showing of entitlement to relief. (People v.
Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) The court must generally take the
petitioner’s factual allegations as true, but it is not required to accept factual
allegations that are conclusively refuted by the record of conviction. (Ibid.)
Although the court is permitted to examine the record of conviction to assess
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the petitioner’s claim of eligibility, it may not engage in factfinding, weigh the
evidence, or assess credibility. (Id. at pp. 971-972.) Similarly, the court may
consider the procedural history contained in a prior appellate opinion but
may not rely on the opinion’s factual summary. (See People v. Flores (2022)
76 Cal.App.5th 974, 988 (Flores).)
The court may deny a petition at the prima facie stage only if the
record of conviction establishes the petitioner is ineligible for relief as a
matter of law. (Lewis, supra, 11 Cal.5th at p. 971.) Otherwise, the court
must issue an order to show cause and allow the petitioner to submit
additional relevant evidence. (People v. Ervin (2021) 72 Cal.App.5th 90, 101;
§ 1172.6, subds. (c), (d).) We independently review the trial court’s decision to
deny a section 1172.6 petition for resentencing at the prima facie stage.
(People v. Harden (2022) 81 Cal.App.5th 45, 52 (Harden).)
Here, the trial court denied the Petition without issuing an order to
show cause, finding Leon was the “only killer” of Ruda. (See § 1172.6, subd.
(c).3) Although it appears the court may have impermissibly relied on the
facts of our first Leon opinion in denying the Petition (see Flores, supra,
76 Cal.App.5th at p. 988), we conclude any such error was harmless as a
matter of law. (See Lewis, supra, 11 Cal.4th at p. 973 [“Typically, when an
3 Subdivision (c) of section 1172.6 provides: “Within 60 days after service
of a petition that meets the requirements set forth in subdivision (b), the
prosecutor shall file and serve a response. The petitioner may file and serve
a reply within 30 days after the prosecutor’s response is served. These
deadlines shall be extended for good cause. After the parties have had an
opportunity to submit briefings, the court shall hold a hearing to determine
whether the petitioner has made a prima facie case for relief. If the
petitioner makes a prima facie showing that the petitioner is entitled to
relief, the court shall issue an order to show cause. If the court declines to
make an order to show cause, it shall provide a statement fully setting forth
its reasons for doing so.”
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‘error is purely one of state law, the Watson harmless error test applies.’ ”],
citing People v. Watson (1956) 46 Cal.2d 818, 836; accord, People v. Hurtado
(2023) 89 Cal.App.5th 887, 892 [“the harmless error doctrine provides a
reasonable method to avoid protracted hearings in past cases that are final
and should stay that way”; failure to appoint counsel at the prima facie stage
is state-law error subject to harmless-error analysis].)
The People’s unopposed request for judicial notice (RJN) of the record
in Leon, supra, D023772, which request we granted in February 2024,
includes the jury verdict and jury instructions from petitioner’s 1995
conviction. Of note, in instructing the jury the trial court refused to give
CALJIC 3.02, “Principals -- Liability for Natural and Probable
Consequences”; CALJIC 8.33, “Second Degree Felony-Murder -- In Pursuance
of a Conspiracy”; and CALJIC 8.34, “Second Degree Felony-Murder -- Aider
and Abettor (Penal Code, § 189).” “[I]f the record shows that the jury was not
instructed on either the natural and probable consequences or felony-murder
doctrines, then the petitioner is ineligible for relief as a matter of
law.” (Harden, supra, 81 Cal.App.5th at p. 52.) Leon also concedes that the
“prior appellate record shows that the jury was instructed on only one theory
of first degree murder based on premeditation and deliberation and that only
aiding and abetting instructions were given.” Thus, without engaging in
factfinding involving the weighing of evidence or the exercise of discretion,
the RJN shows as a matter of law that Leon is not entitled to relief under
section 1172.6.
Moreover, in this court’s Harden opinion and in the instant case the
trial court gave CALJIC No. 8.10 when instructing the jury on the elements
of murder. (Harden, supra, 81 Cal.App.5th at p. 58 [relying in part on this
instruction to find that the defendant was the actual killer, thus denying her
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petition for resentencing at the prima facie stage].) It provides in relevant
part: “Every person who unlawfully kills a human being with malice
aforethought is guilty of the crime of murder in violation of Section 187 of the
Penal Code.” ( CALJIC No. 8.10, italics added.) Thus, when the jury
convicted Leon of first degree murder it necessarily found that he “kill[ed] a
human being with malice aforethought” (ibid.), rendering him statutorily
ineligible for relief under section 1172.6 (see Harden, supra, at p. 58).
DISPOSITION
The March 16, 2023 order denying Leon’s Petition is affirmed.
McCONNELL, P. J.
WE CONCUR:
DO, J.
BUCHANAN, J.
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