P. v. Leon
Filed 2/24/06 P. v. Leon CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. DAVID MICHAEL LEON, Defendant and Appellant. | H026042 (Santa Clara County Super. Ct. No. CC093326) |
Statement of the Case
In 1983, Marlon Bass was shot to death. In 2001, defendant David Michael Leon was charged with Bass's murder, and in 2002, a jury convicted him of first degree murder and found that he personally used a firearm. He was sentenced to a term of 25 years to life plus two years for using a firearm. On appeal from the judgment, defendant claims the 17-year delay in charging him denied him a fair trial. He further claims the trial court erred in excluding evidence that someone else killed Marlon and abused its discretion in removing a juror during deliberations. Last, he claims the imposition of restitution and parole revocation fines violates the constitutional ban on ex post facto laws.
We agree that the fines are unconstitutional, reverse the judgment, and remand the matter for a new restitution fine hearing.
Facts
On November 30, 1983, around 5:30 p.m., Lieutenant Palmer Bass, a police officer at the San Francisco Airport, and his wife Annie returned home and found their front door ajar. The glass panel nearest the door latch was broken. They entered and soon discovered the body of their 20-year-old son Marlon in the hallway just outside his bedroom. He had a small bat in his hand.[1] The autopsy and forensic analysis revealed that around 2:00 p.m. that day, someone shot Marlon with a.22 caliber gun five times from at least three feet away. When the first shot was fired, Marlon was in the hallway, facing the shooter, who was in the bedroom; the remaining shots were fired after Marlon had turned and started to flee.
At trial, Mr. Bass testified that knew his son sold marijuana. Days before the murder, he saw around $4200 in Marlon's desk. The night before the murder, he found and removed two buckets of marijuana from Marlon's room and locked them in a car.
Daniel Barnett, defendant's friend from high school, testified that defendant once showed him a gun. Over a year later, Daniel was with defendant waiting for Marlon, and defendant said, â€
