People v. Leon CA4/1

Filed 10/20/22 P. v. Leon CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 In an unpublished opinion (People v. Leon (Mar. 25, 2008, D048306) [nonpub.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