People v. Leyba CA3

Filed 6/20/23 P. v. Leyba CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C092129
Plaintiff and Respondent, (Super. Ct. No. 10F06425)
v. OPINION ON
TRANSFER
IGNACIO LEYBA,
Defendant and Appellant.
Defendant Ignacio Leyba appeals from the denial of his postconviction petition for
relief under Penal Code section 1172.6.1 Counsel for defendant filed a brief seeking our
independent review under People v. Wende (1979) 25 Cal.3d 436 to determine whether
there are any arguable issues on appeal. Defendant also filed a supplemental brief in
propria persona. We will affirm.
1 Undesignated statutory references are to the Penal Code.
Defendant filed his petition under former section 1170.95. Effective June 30,
2022, the Legislature renumbered former section 1170.95 to section 1172.6 with no
change in the text. (Stats. 2022, ch. 58, § 10.) We will refer to the statute by its current
number.
1
FACTUAL AND PROCEDURAL BACKGROUND
In September 2010, during a late night party in the backyard of a residence,
defendant took offense at an inquiry from victim Oquitzin Bravo, punched and then shot
and killed him, and also shot and wounded his friend, victim J.L. A jury found defendant
guilty of second degree murder (§ 187, subd. (a)), attempted premeditated murder (§§
664, 187, subd. (a)), and being a felon in possession of a firearm. (Former § 12021, subd.
(a)(1).) The jury found true allegations of personal use of a firearm resulting in death or
great bodily injury. (§ 12022.53, subd. (d).) The trial court imposed an indeterminate
term of 72 years to life on the shooting counts and a concurrent term for the firearm
possession. We affirmed the judgment. (People v. Leyba (July 18, 2012, C068671)
[nonpub. opn.].)
In January 2019, defendant filed a form petition for resentencing under section
1172.6, checking boxes declaring that: a complaint, information or indictment was filed
against him that allowed the prosecution to proceed under a felony-murder theory or
under the natural and probable consequences doctrine; he was convicted of first or second
degree murder under the felony-murder rule or natural and probable consequences
doctrine; and he could not now be convicted of first or second degree murder because of
the changes to sections 188 and 189. Defendant also checked a box declaring that he was
convicted of second degree murder under the natural and probable consequences doctrine
or second degree felony murder and could not now be convicted after the changes to
section 188. The trial court appointed the public defender to represent defendant.
The People filed a response to the petition arguing that the petition should be
dismissed because (1) Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019),
which enacted section 1172.6, is unconstitutional, and (2) defendant was the actual killer
and therefore not eligible for relief.
After granting three requests by defendant for an extension of time to file a reply
brief, the trial court denied the fourth.
2
On May 8, 2020, the trial court denied defendant’s petition. The court stated that
it had read and considered the parties’ briefs, the probation report, the jury instructions,
and our unpublished opinion. The trial court noted that it had presided over the trial and
was familiar with the facts. Defendant was charged with an “open” murder count, but the
prosecution in closing abandoned a first degree murder theory and urged the jury to find
defendant guilty of second degree murder. The trial court concluded the prosecution did
not rely on the felony-murder or natural and probable consequences doctrine, so therefore
section 1172.6 was inapplicable to defendant.
Defendant filed a timely appeal.
We appointed counsel to represent defendant on appeal. Counsel filed a brief
under Wende requesting that we independently review the entire record on appeal and
stated that defendant had been advised by counsel of the right to file a supplemental brief
to raise any issues defendant believed deserved review.
We dismissed the appeal as abandoned. The California Supreme Court granted
defendant’s petition for review and deferred the matter pending its decision in People v.
Delgadillo, review granted February 17, 2021, S266305. When the court issued People
v. Delgadillo (2022) 14 Cal.5th 216, the Supreme Court transferred the case back to this
court, directing us to vacate our order dismissing the appeal and to reconsider whether to
exercise our discretion to conduct an independent review or provide any other relief
under Delgadillo. We vacated our order dismissing the appeal and reinstated the appeal.
We informed defendant by letter that appellate counsel had filed a no-issue brief
under Wende. However, because this case arose from an order denying postconviction
relief, defendant was not constitutionally entitled to counsel or independent review of the
record. We notified defendant that under Delgadillo, he had 30 days in which to file a
supplemental brief or letter raising any issue he wished us to consider and that, if we did
not receive a supplemental letter or brief, we may dismiss the appeal as abandoned.
3
Defendant filed a supplemental brief, requesting that this court “independently
review the entire record on appeal” under Chapman v. California (1967) 386 U.S. 18[17 L.Ed.2d 705].
DISCUSSION
Although defendant filed a supplemental “brief” in this appeal, that document does
not raise any arguments for reversal. Instead, it merely reiterates counsel’s request for
independent review. Under Delgadillo, we will “evaluate the specific arguments
presented in [defendant’s supplemental] brief,” but will not undertake an “independent
review of the entire record to identify unraised issues.” (People v. Delgadillo, supra,
14 Cal.5th at p. 232.) Defendant’s supplemental brief has not presented us with any
argument to address. He is not entitled to independent review simply because he has
requested it in a supplemental filing. Further, defendant’s reference to Chapman, which
states the federal test for harmless error beyond a reasonable doubt for errors of a
constitutional dimension (Chapman, supra, 386 U.S. at p. 24), has no effect or
application where, as here, the defendant has not identified any error in the first instance.
DISPOSITION
The order denying defendant’s petition for resentencing under section 1172.6 is
affirmed.
KRAUSE , J.
We concur:
ROBIE , Acting P. J.
EARL , J.
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