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Filed 6/20/23 P. v. Leyba CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.