People v. Leon CA4/1

Filed 12/8/20 P. v. Leon CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D077745

Plaintiff and Respondent,

v. (Super. Ct. No. SCS179354)

JOSE LUIS LEON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed. Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2005, Jose Luis Leon was convicted of second degree murder (Pen.

Code,1 § 187, subd. (a)). Leon appealed his conviction, which this court affirmed in an unpublished opinion (People v. Leon (Mar. 25, 2008, D048306) [nonpub. opn.]).

1 All further statutory references are to the Penal Code.

In 2019, Leon filed a petition to recall his sentence under section 1170.95. The 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. The trial court denied Leon’s petition by written order. In its order, the court found 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. Leon filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating he has not been able to identify any arguable issues for reversal on appeal. Counsel asks 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 has not responded.