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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

IGNACIO LEYBA,

Defendant and Appellant.

C092129

(Super. Ct. No. 10F06425)

OPINION ON 

TRANSFER

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.
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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. 
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On May 8, 2020, the trial court denied defendant’s petition. The court stated that 

it had read and considered the parties’ briefs, the probation report, the jury instructions, 

and our unpublished opinion. The trial court noted that it had presided over the trial and 

was familiar with the facts. Defendant was charged with an “open” murder count, but the 

prosecution in closing abandoned a first degree murder theory and urged the jury to find 

defendant guilty of second degree murder. The trial court concluded the prosecution did 

not rely on the felony-murder or natural and probable consequences doctrine, so therefore 

section 1172.6 was inapplicable to defendant. 

Defendant filed a timely appeal. 

We appointed counsel to represent defendant on appeal. Counsel filed a brief 

under Wende requesting that we independently review the entire record on appeal and 

stated that defendant had been advised by counsel of the right to file a supplemental brief 

to raise any issues defendant believed deserved review. 

We dismissed the appeal as abandoned. The California Supreme Court granted 

defendant’s petition for review and deferred the matter pending its decision in People v. 

Delgadillo, review granted February 17, 2021, S266305. When the court issued People 

v. Delgadillo (2022) 14 Cal.5th 216, the Supreme Court transferred the case back to this 

court, directing us to vacate our order dismissing the appeal and to reconsider whether to 

exercise our discretion to conduct an independent review or provide any other relief 

under Delgadillo. We vacated our order dismissing the appeal and reinstated the appeal.

We informed defendant by letter that appellate counsel had filed a no-issue brief 

under Wende. However, because this case arose from an order denying postconviction 

relief, defendant was not constitutionally entitled to counsel or independent review of the 

record. We notified defendant that under Delgadillo, he had 30 days in which to file a 

supplemental brief or letter raising any issue he wished us to consider and that, if we did

not receive a supplemental letter or brief, we may dismiss the appeal as abandoned.
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Defendant filed a supplemental brief, requesting that this court “independently 

review the entire record on appeal” under Chapman v. California (1967) 386 U.S. 18

[17 L.Ed.2d 705].

DISCUSSION

Although defendant filed a supplemental “brief” in this appeal, that document does 

not raise any arguments for reversal. Instead, it merely reiterates counsel’s request for 

independent review. Under Delgadillo, we will “evaluate the specific arguments 

presented in [defendant’s supplemental] brief,” but will not undertake an “independent 

review of the entire record to identify unraised issues.” (People v. Delgadillo, supra,

14 Cal.5th at p. 232.) Defendant’s supplemental brief has not presented us with any 

argument to address. He is not entitled to independent review simply because he has 

requested it in a supplemental filing. Further, defendant’s reference to Chapman, which 

states the federal test for harmless error beyond a reasonable doubt for errors of a 

constitutional dimension (Chapman, supra, 386 U.S. at p. 24), has no effect or 

application where, as here, the defendant has not identified any error in the first instance.

DISPOSITION

The order denying defendant’s petition for resentencing under section 1172.6 is 

affirmed.

 KRAUSE , J.

We concur:

 ROBIE , Acting P. J.

 EARL , J.