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,

Plaintiff and Respondent,

v.

LEO ANTHONY REYES,

Defendant and Appellant.

 B311849

 (Los Angeles County

 Super. Ct. No. SA053574-02)

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. 

________________
2

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.
3

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 
4

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.
5

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.
6

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 
7

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.)
8

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.