People v. Leavy CA5

INTRODUCTION

Appellant/defendant Marquise D. Leavy (defendant), a member of the Hoover Crips gang, used a shotgun to commit a drive-by shooting at two brothers, Maurice and Marquise Graves, who were affiliated with the rival Northside gang. Maurice Graves was killed and Marquise was wounded. After a jury trial, defendant was convicted of count I, first degree murder of Maurice Graves (Pen. Code, §187, subd. (a))1 with two special circumstances: the murder was committed by intentionally discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)); and the murder was intentional, defendant was an active participant in a criminal street gang, and it was committed to further the activities of a criminal street gang (§ 190.2, subd. (a)(22)). Defendant was also convicted of count II, attempted premeditated murder of Marquise Graves (§ 187, subd. (a)), § 664, subd. (a)), with firearm enhancements found true for both counts (§ 12022.53, subd. (d)).2 Defendant was 16 years old when he committed the murder. As we will discuss below, the United States Supreme Court has held that the Eighth Amendment to the federal Constitution prohibits a mandatory life without parole (LWOP) sentence…