People v. Leon CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCS179354
- Trial judge
- Garry G. Haehnle
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Truc T. Do (author), Judith D. McConnell, Buchanan
Analysis
The trial court denied Leon's second petition for resentencing under section 1172.6, finding he had not established a prima facie case for relief and had not shown a change in circumstances to warrant relitigating the issue. The Court of Appeal affirmed the denial after conducting an independent review of the record pursuant to People v. Wende and finding no arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of the second petition for resentencing under section 1172.6“We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal.” | de novo | correct | agree with court The trial court correctly applied the law by denying the second petition because Leon failed to make a prima facie showing of eligibility for resentencing and did not demonstrate a change in circumstances that would justify relitigating the issue previously decided. The appellate court's independent review under Wende confirmed that the trial court's order was supported by the record and that no arguable errors of law or fact existed to warrant reversal. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for arguable issues when they cannot identify any, and mandates the court to conduct an independent review of the record.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from a case where no arguable issues exist, requiring a brief identifying the record and the court's independent review.
The appellate opinion: sound — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for reviewing a case where appointed counsel identifies no arguable issues. The court explicitly states it reviewed the entire record and found no errors, which is the required standard of review in this context.
The San Diego Superior Court summarily denied Jose Luis Leon's second Penal Code section 1172.6 resentencing petition, without appointing counsel, on the ground that he showed no change of circumstances since his first petition was denied on a finding that he directly aided and abetted the killing with intent to kill. On appeal, appointed counsel filed a Wende brief, Leon filed nothing, and the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Summary denial of second section 1172.6 petition because Leon showed no change of circumstances since the denial of his first petition, which had found him a direct aider and abettor with 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.”” | unclear | correct | unsure The result is plausible: a prior final determination that Leon directly aided and abetted with intent to kill would render him ineligible as a matter of law, and a bare successive petition may be denied absent a change in law or fact. But the opinion does not discuss whether intervening developments—People v. Lewis (2021) and Senate Bill 775, both postdating the first denial and its 2020 affirmance—constituted a change in law warranting fresh prima facie review, as People v. Farfan (2021) 71 Cal.App.5th 942 addressed in the same posture. Nor does it state whether the first denial rested on the jury instructions or on impermissible factfinding from the appellate opinion. The opinion offers no analysis, only a conclusory Wende statement. |
Denial of the second petition without appointing counsel despite Leon's request for appointment of counsel“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.” | unclear | correct (procedure) | unsure Under section 1172.6, subdivision (b)(3), as amended by Senate Bill 775, and People v. Lewis (2021) 11 Cal.5th 952, a petitioner who files a facially sufficient petition and requests counsel is entitled to appointed counsel before the prima facie determination; failure to appoint is state-law error reviewed for prejudice under Watson. The trial court appointed no counsel here. The Court of Appeal's finding of no arguable issue implicitly treats this as harmless or as not applying to a successive petition, but the opinion never says so. Harmlessness is likely if the record of conviction shows ineligibility as a matter of law, yet the opinion recites no facts or instructions permitting a reader to confirm that. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal independently reviews the entire record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal without merit must file a brief identifying anything in the record that might arguably support the appeal, and the court then reviews the record.
- missed: People v. Lewis (2021) 11 Cal.5th 952 — A petitioner who files a facially sufficient section 1170.95 petition and requests counsel is entitled to appointed counsel before the prima facie determination; the court may not engage in factfinding at the prima facie stage; failure to appoint counsel is reviewed for prejudice under Watson.
The appellate opinion: sound with gaps — The opinion conducts a Wende/Anders review and affirms in conclusory fashion without addressing whether the trial court's failure to appoint requested counsel violated section 1172.6, subdivision (b)(3) and Lewis, or whether Senate Bill 775 and Lewis constituted a change in law permitting a successive petition as in Farfan. The result is defensible because a prior final finding of direct aiding and abetting with intent to kill would render any error harmless, but the opinion skips those authorities and recites no facts or instructions that would let a reader verify that conclusion.
How this analysis was made · dispute it
record incompleteOpinion
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.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12