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Filed 6/20/23 P. v. Leyba CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 issue s on appeal. Defendant also filed a supplement al brief in
pro pria per sona . We will affirm.

1 U ndesignated 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.2 FA CTUAL 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 O quitzin 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
po ssession. 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 indictmen t 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 con sequences 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 wa s 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.3

On May 8, 2020, the trial court denied defendant’s petition. The c ourt 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 wi th 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 an d probable consequences doctrine, so therefore
section 1172.6 wa s in applicable 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 rev iew 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 believe d deserve d review. We dismissed the appeal as abandoned. The California Supreme Court gr anted 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 dismis sing 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 ar ose from an order denying postconviction relief, defendant was not constitutionally enti tled to counsel or independent review of the
record. We notified defendant that under Delgadillo , he ha d 30 days in which to file a supplemental brief or letter raising any issue he wished us to consider and that, i f we d id not receive a supplemental lett er or brief, we may dismiss the appeal as abandoned.4

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 d e fendant filed a supplemental “ brief ” in this appeal, that document does not raise any arguments for reversal . In stead , 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.) D efendant ’s supplemental brief has not presented us with any argument to address. He is not entitled to independent review s imply because he has requested it in a supplemental filing . Further, d efendant’s reference to Chapman , which states the federal test for harmless error beyond a reasonable doubt for erro rs 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 s ection 1172.6 is
affirmed.

KRAUSE , J.

We concur:

ROBIE , Acting P. J.

EARL , J.