People v. Leyva CA2/6

Filed 12/17/15 P. v. Leyva CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B257370 (Super. Ct. No. F489039) Plaintiff and Respondent, (San Luis Obispo County)

v.

DANNY LEYVA,

Defendant and Appellant.

Danny Leyva appeals from the judgment following his conviction by jury of attempted murder (Pen. Code, §§ 664, 187) and assault with a deadly weapon by a prisoner (§ 4501).1 The jury acquitted him of aggravated mayhem (§ 205) and found untrue allegations that he personally inflicted great bodily injury upon the victim of the attempted murder and assault. (§ 12022.7, subd. (a).) In a bifurcated proceeding the trial court found that appellant suffered a prior serious felony conviction and a prior felony strike. (§§ 667, subds. (a), (d), (e), 1170.12, subds. (b), (c).) The court sentenced him to a 23-year prison term. Appellant contends there is insufficient evidence to support his convictions. We affirm.

1 All statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL BACKGROUND On the evening of September 30, 2012, Officer Todd Rodin saw inmate Antwaren Roberts "fly" out of his cell and "fall on his back." His face was covered with blood. Appellant and Arbi Kamali, who were assigned to another cell, crawled from Roberts's cell. Both were "covered in blood."2 Rodin ordered Kamali and appellant to the ground. They complied. Rodin saw blood all over Roberts's cell floor and grew concerned about the welfare of Roberts's cellmate, Golden. Rodin located Golden, who had no injuries, in another room. Meanwhile, other officers saw Kamali and appellant outside the shower area. Both were "wet," and no longer had blood on their skin. Something that resembled blood was on the shower curtain. The shorts that appellant wore, and the inner portion of his right shoe, had blood spots. Officer Edward Nixon examined Roberts's cell and found two "inmate- manufactured weapons" in the toilet. One was a "slashing" weapon constructed from a Bic razor, tape and cloth. The other was a "stabbing" weapon constructed from the metal portion of a mop handle and white "T-shirt type" fabric. Sergeant Daniel Soto searched the cell that appellant and Kamali shared and found a piece of cloth and a roll of tape under a bed. The width and material of the cloth were similar to the cloth on the stabbing weapon. The loose ends of the tape on the roll and the stabbing weapon appeared to match. Roberts was treated at an emergency hospital. He had nine stab or puncture wounds, including two in his left torso, two in his back and neck area, and one under his left armpit. He also had three "slash" wounds, including a two- and a half-inch long wound on his left cheek and a half-inch long wound on his lower chin.