Filed 6/23/22 P. v. Leon CA2/5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B304478
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA085870)
v.
ROBERT LEON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Bruce F. Marrs, Judge. Affirmed.
Leonard J. Klaif, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Zee Rodriguez,
Charles S. Lee, Idan Ivri, and Paul S. Thies, Deputy Attorneys
General, for Plaintiff and Respondent.
I. INTRODUCTION
On January 14, 2021, we affirmed the trial court’s denial of
defendant and appellant Robert Leon’s Senate Bill No. 1437
(Senate Bill 1437) and Penal Code section 1170.951 petition for
resentencing. On March 24, 2021, the California Supreme Court
granted defendant’s petition for review. On January 26, 2022,
the Supreme Court transferred the cause back with directions to
vacate our decision and reconsider the cause in light of Senate
Bill No. 775 (Senate Bill 775) (Stats. 2021, ch. 551) and People v.
Lewis (2021) 11 Cal.5th 952 (Lewis). Having reconsidered the
cause and concluded that defendant remains ineligible for relief
as a matter of law, we affirm.
II. PROCEDURAL BACKGROUND
A jury convicted defendant of attempted willful, deliberate,
premeditated murder. (§§ 664/187, subd. (a).) The jury found
true the allegation that the offense was committed for the benefit
of a criminal street gang within the meaning of section 186.22,
subdivision (b)(1)(C). The trial court sentenced defendant to life
in prison with parole eligibility after 15 years. (People v. Sotelo et
al. (Jan. 24, 2011, B219799) [nonpub. opn.].)
On October 11, 2019, defendant filed a petition for
resentencing pursuant to Senate Bill 1437 and section 1170.95.
Under penalty of perjury, defendant declared that a complaint,
information, or indictment had been filed against him that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
1 All further statutory references are to the Penal Code.
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doctrine; he was convicted of first or second degree murder under
the felony murder rule or the natural and probable consequences
doctrine; and he could not now be convicted of first or second
degree murder due to the January 1, 2019, changes to sections
188 and 189.
Defendant further declared that he was convicted of first
degree felony murder and could no longer be convicted of that
offense due to the January 1, 2019, changes to section 189
because he was not the actual killer; he did not, with the intent to
kill, aid and abet in the murder; he was not a major participant
in the felony or act with reckless indifference to human life in the
course of the felony; and the murder victim was not a peace
officer performing his duties or defendant was not reasonably
aware the victim was a peace officer performing his duties.
Defendant requested the trial court appoint counsel to represent
him.
On December 11, 2019, the Los Angeles County District
Attorney filed an opposition to defendant’s petition, arguing that
defendant was ineligible for relief because Senate Bill 1437 did
not apply to the offense of attempted murder. The same day,
without defendant’s presence, and apparently without appointing
counsel for defendant, the trial court summarily denied
defendant’s petition, ruling that his attempted murder conviction
did not qualify for consideration under section 1170.95. We
affirmed the court’s order.
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III. DISCUSSION
A. Senate Bill 775 and Section 1170.95
On October 5, 2021, the Governor signed Senate Bill 775
which amended section 1170.95 to permit resentencing of certain
persons convicted of attempted murder under a natural and
probable consequences theory. (§ 1170.95, subd. (a); see Sen. Bill
No. 775 (2021–2022 Reg. Sess.), as amended Oct. 5, 2021, p. 3;
Stats. 2021, ch. 551, §§ 1–2.) A petitioner who files a facially
sufficient petition is entitled to the appointment of counsel and,
“only after the appointment of counsel and the opportunity for
briefing may the superior court consider the record of conviction
to determine whether ‘the petitioner makes a prima facie
showing that he or she is entitled to relief.’ (§ 1170.95, subd.
(c).)” (Lewis, supra, 11 Cal.5th at p. 957.)
B. Summary Denial Without the Appointment of Counsel
Defendant contends the trial court erred in summarily
denying his petition without appointing counsel to represent him
because his petition alleged a prima facie case. The Attorney
General concedes that the court erred but argues that the error
was harmless. We agree.
The erroneous failure to appoint counsel under section
1170.95 is reviewed for prejudice under People v. Watson (1956)
46 Cal.2d 818, 836. (Lewis, supra, 11 Cal.5th at pp. 957–958.)
Under that standard, defendant has the burden to show a
reasonable probability that he would have obtained a more
favorable result if the trial court had appointed counsel. (Id. at
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p. 974.) A court’s error in failing to appoint counsel under section
1170.95 is harmless when the jury was not instructed on a
natural and probable consequences theory. (See People v. Daniel
(2020) 57 Cal.App.5th 666, 677 [error in not appointing counsel
under section 1170.95 was harmless because the jury was not
instructed on felony murder or the natural and probable
consequences doctrine], review dismissed, cause remanded
Dec. 1, 2021, No. S266336.) Because the trial court did not
instruct the jury on and defendant was not convicted of
attempted murder under the natural and probable consequences
doctrine, defendant was ineligible for section 1170.95
resentencing as a matter of law. (See People v. Cortes (2022) 75
Cal.App.5th 198, 205 [because the “jury was not instructed on
any theory of liability for murder or attempted murder that
required that malice be imputed to him” he was “ineligible for
resentencing under section 1170.95, subdivisions (a) and (b)”];
People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5, review
granted July 22, 2020, S262835 [“if the jury was not instructed on
a natural and probable consequences or felony-murder theory of
liability, the petitioner could not demonstrate eligibility as a
matter of law”].) Accordingly, any error in summarily denying his
petition was harmless. (See People v. Edwards (2020) 48
Cal.App.5th 666, 675 [because the defendant did not fall within
the provisions of section 1170.95 as a matter of law, any error in
summarily denying the petition was “harmless under any
standard of review [citations]”], review dismissed Jan. 5, 2022,
No. S262481.)
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IV. DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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