Filed 1/20/22 P. v. Reyes CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B311849
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA053574-02)
v.
LEO ANTHONY REYES,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Kathleen Kennedy, Judge. Affirmed.
Leo Anthony Reyes, in pro. per., and Julie Caleca, under
appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance by Plaintiff and Respondent.
________________
Leo Anthony Reyes was convicted following a jury trial in
2006 of two counts of second degree murder and one count each of
attempted murder and shooting at an occupied motor vehicle and
sentenced to an aggregate indeterminate state prison term of
40 years to life. We affirmed the convictions and sentence on
appeal. (People v. Reyes (2008) 159 Cal.App.4th 214.)
On January 18, 2019 Reyes, representing himself, filed a
petition for resentencing pursuant to Penal Code
section 1170.95.1 The superior court denied the petition after
appointing counsel for Reyes and receiving briefing from the
prosecutor and Reyes’s appointed counsel, finding Reyes
ineligible for relief as a matter of law because, although Reyes
was not the actual shooter, the prosecutor at the trial of Reyes
and his codefendant, Sergio Ginez, had not relied upon, and the
jury was not instructed concerning, the felony-murder rule or the
natural and probable consequences doctrine.
No arguable issues have been identified following review of
the record by Reyes’s appointed appellate counsel. We also have
identified no arguable issues after our own independent review of
the record and analysis of the contentions presented by Reyes in
his supplemental brief. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Gang-related Murders
The evidence presented at Reyes’s joint trial with Ginez—
primarily the testimony of the surviving victim, Juan Cortez,
three eyewitnesses and the People’s gang expert—is summarized
in our opinion affirming Reyes’s and Ginez’s judgments of
conviction. (People v. Reyes, supra, 159 Cal.App.4th 214.)
1 Statutory references are to this code.
2
The shooting took place near Venice Beach in territory
claimed by the Venice 13 criminal street gang. Members of
Venice 13 wear the color blue. Reyes and Ginez were members of
the Culver City Boys gang, a rival of Venice 13. Culver City
Boys’s gang colors are red.
Reyes, driving his reddish colored (maroon) Mercedes, with
Ginez in the passenger seat, pulled up next to a parked blue
Camaro. Cortez, who was wearing blue shorts, a blue shirt and
blue hat, Victor Rodriguez and Jose Acosta were in the Camaro.
Cortez heard Ginez say, “Where you from, ese?” Before Cortez
could answer, “I don’t bang,” Ginez began shooting. He fired
15 shots into the Camaro, five of which hit Cortez. Rodriguez
and Acosta died at the scene. (Cortez, Rodriguez and Acosta were
not Venice 13 gang members. The prosecutor’s theory was that
Ginez believed they were because they were young Latino men
showing blue in territory claimed by Venice 13.)
Following a police emergency call, Reyes and Ginez were
apprehended. Eyewitnesses taken to the site of their arrest
identified both men and the Mercedes as the car involved in the
shooting. Cortez, who was taken directly to the hospital, later
picked Ginez from a six-person photo display, and then identified
him again at the preliminary hearing and at trial. When police
searched the Mercedes, they found a red bandana. In the glove
box were four live cartridges in a sock. The four cartridges
matched the nine-millimeter caliber and the branding of the
15 nine-millimeter shells left at the shooting scene.
The jury convicted Reyes as an aider and abettor on
two counts of second degree murder (§ 187, subd. (a)) and one
count of (unpremeditated) attempted murder (§§ 187, subd. (a),
664), as well as shooting at an occupied vehicle (§ 246), and found
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true associated firearm-use and criminal street gang
enhancements (§§ 12022.53, subds. (d) & (e)(1), 186.22,
subd. (b)).2 Reyes was sentenced to an aggregate indeterminate
state prison term of 40 years to life. We affirmed the conviction
and sentence on appeal. (People v. Reyes, supra, 159 Cal.App.4th
214.)
2. Reyes’s Petition for Resentencing
On January 18, 2019 Reyes filed a petition for resentencing
under section 1170.95. The superior court summarily denied the
petition on March 4, 2019, finding Reyes was ineligible for relief
as a matter of law: “Although [Reyes] was convicted of murder as
an aider and abettor who was not the actual killer, the
prosecution did not rely on a theory of felony murder of any
degree, nor on a theory of natural and probable consequences.
The jury was never instructed on either of these theories.”
On November 15, 2019 the superior court reconsidered
Reyes’s petition, appointed counsel to represent Reyes and
ordered briefing. The prosecutor filed a response opposing the
petition, which attached copies of the jury instructions given at
Reyes’s trial and our opinion affirming the judgment on direct
appeal. Reyes’s appointed counsel filed a supplemental petition
2 The jury convicted Ginez of two counts of first degree
murder (§ 187, subd. (a)), one count of attempted willful,
deliberate and premeditated attempted murder (§§ 187, subd. (a),
664), as well as other felonies, and found true the special
circumstance allegations that Ginez had committed multiple
murders. (§ 190.2, subd. (a)(3).) Ginez was sentenced to
two consecutive terms of life without parole plus 70 years.
4
in August 2020 and an additional points and authorities on
February 22, 2021.3
On April 2, 2021 the superior court again denied Reyes’s
petition, finding him ineligible for relief as a matter of law.4
Reyes filed a timely notice of appeal.
DISCUSSION
1. Senate Bill No. 1437
Senate Bill No. 1437 (Stats. 2018, ch. 1015), effective
January 1, 2019, substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-
843) and significantly narrowing the felony-murder exception to
the malice requirement for murder. (§§ 188, subd. (a)(3), 189,
subd. (e)(3); see People v. Lewis (2021) 11 Cal.5th 952, 957
(Lewis).) It also authorized, through new section 1170.95, an
individual convicted of felony murder or murder based on the
natural and probable consequences doctrine to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not have been convicted
3 On October 13, 2020 the court indicated it had received a
letter (dated October 3, 2020) it considered to be a request for a
Marsden hearing. (People v. Marsden (1969) 2 Cal.3d 118.)
Following a hearing the court denied the request to replace
Reyes’s appointed counsel.
4 Prior to ruling on the section 1170.95 petition on April 2,
2021, the court stated it had received a second letter from Reyes
(dated March 19, 2021) it considered to be a Marsden motion. A
hearing was held, and the second motion was denied.
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of murder because of Senate Bill No. 1437’s changes to the
definition of the crime. (Lewis, at p. 957; Gentile, at p. 843.)
In determining whether a petitioner has carried the burden
of making a prima facie showing he or she falls within the
provisions of section 1170.95 and is entitled to relief, it is
appropriate to examine the record of conviction, “allowing the
court to distinguish petitions with potential merit from those that
are clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 971.)
2. Reyes’s Appeal
In accord with the procedures described in People v. Cole
(2020) 52 Cal.App.5th 1023, review granted October 14, 2020,
S264278, we appointed counsel to represent Reyes on appeal.
After reviewing the record, Reyes’s counsel filed a brief raising no
issues. Appointed counsel advised Reyes on November 15, 2021
that he had 30 days after he filed his no-issue brief to submit a
brief or letter raising any grounds of appeal, contentions or
arguments he wanted the court to consider. We provided a
similar notice to Reyes on the same date.
On December 13, 2021 we received a two-page typewritten
supplemental letter brief from Reyes pointing out that the
Legislature had enacted Senate Bill No. 775 (2021-2022
Reg. Sess.) (Stats. 2021, ch. 551, § 2) (Senate Bill 775), effective
January 1, 2022, which amended section 1170.95 to expressly
include within its reach certain convictions for attempted murder
and voluntary manslaughter. As Reyes indicates in his letter,
section 1170.95, subdivision (a), now provides, “A person
convicted of felony murder or murder under the natural and
probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person’s
participation in a crime, attempted murder under the natural
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and probable consequences doctrine, or manslaughter may file a
petition with the court that sentenced the petitioner to have the
petitioner’s murder, attempted murder, or manslaughter
conviction vacated and to be resentenced on any remaining
counts . . . .” (Italics added.)5
Notwithstanding Senate Bill 775’s expansion of the reach of
section 1170.95’s ameliorative provisions for resentencing, a
direct aider and abettor of murder and attempted murder
remains ineligible for resentencing relief as a matter of law.
(People v. Gentile, supra, 10 Cal.5th at p. 848 [“Senate Bill 1437
does not eliminate direct aiding and abetting liability for murder
because a direct aider and abettor to murder must possess malice
aforethought”]; People v. Jenkins (2021) 70 Cal.App.5th 924, 931
[“Senate Bill 1437 did not change accomplice liability for murder
under direct aiding and abetting principles. [Citation.] ‘One who
directly aids and abets another who commits murder is thus
liable for murder under the new law just as he or she was liable
under the old law’”].) Reyes does not argue otherwise in his
5 In an uncodified statement of its intent in enacting Senate
Bill 775, the Legislature declared the legislation “(a) Clarifies that
persons who were convicted of attempted murder or manslaughter
under a theory of felony murder and the natural probable
consequences doctrine are permitted the same relief as those
persons convicted of murder under the same theories. [¶]
(b) Codifies the holdings of People v. Lewis (2021) 11 Cal.5th 952,
961-970, regarding petitioners’ right to counsel and the standard for
determining the existence of a prima facie case. [¶] (c) Reaffirms
that the proper burden of proof at a resentencing hearing under this
section is proof beyond a reasonable doubt. [¶] (d) Addresses what
evidence a court may consider at a resentencing hearing (clarifying
the discussion in People v. Lewis, supra, at pp. 970-972).”
(Stats. 2021, ch. 551, § 1.)
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supplemental letter brief or present any other basis for us to
reverse the superior court’s order denying his petition.
Because no cognizable legal issues have been raised by
Reyes’s appellate counsel or by Reyes or identified in our
independent review of the record, which included a review of the
confidential reporter’s transcript of the Marsden hearings, the
order denying the postjudgment motions is affirmed. (See People
v. Cole, supra, 52 Cal.App.5th at pp. 1039-1040, review granted;
see also People v. Serrano (2012) 211 Cal.App.4th 496, 503;
see generally People v. Kelly (2006) 40 Cal.4th 106, 118-119;
People v. Wende (1979) 25 Cal.3d 436, 441-442.)
DISPOSITION
The postjudgment order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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