People v. Diego CA2/5 ( 2021 )

Filed 4/21/21 P. v. Diego CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B303304
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. YA000719-01)
PEDRO ALBERTO DIEGO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Hector M. Guzman, Judge. Affirmed.
Lynda A. Romero, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and John Yang,
Deputy Attorneys General, for Plaintiff and Respondent.
In 1991, a jury convicted defendant and appellant Pedro
Alberto Diego (defendant) on murder and attempted murder
charges, among others. More recently, defendant petitioned the
trial court to vacate his first degree murder conviction and both
of his attempted murder convictions pursuant to Penal Code
section 1170.951 and related amendments made by Senate Bill
No. 1437 (2017-2018 Reg. Sess.) (SB 1437). The trial court
appointed counsel for defendant and denied his petition. We
consider whether the trial court correctly concluded defendant is
ineligible for section 1170.95 relief as a matter of law, and this
reduces to two specific questions: (1) could the jury have found
him guilty of first degree murder on a natural and probable
consequences theory, and (2) does section 1170.95 authorize relief
not just for murder convictions but for attempted murder
convictions?
I. BACKGROUND2
The Los Angeles County District Attorney charged
defendant in an information with two counts of murder: the
murder of Charles Long (count one) and the murder of Renee
Johnson (count seven). The information alleged a multiple
1
Undesignated statutory references are to the Penal Code.
2
Defendant moves us to judicially notice the appellate record
in his direct appeal from his convictions (Case Number B059660)
and submits electronic copies of volumes one and two of the
clerk’s transcript and volumes 26 and 27 of the reporter’s
transcript from that prior appeal. Defendant’s motion is granted
as to the excerpts of the record provided with his motion (Cal.
Rules of Court, rule 8.252(a)(3)), and we rely on those excerpts in
setting forth the pertinent background facts for this appeal.
2
murder special circumstance (§ 190.2, subd. (a)(3)) as to
defendant, but not as to his co-defendant Bennie Bellfield—who
was not charged with the murder of Long in count one. In
addition to the murder charges, defendant was charged with two
counts of premeditated attempted murder pertaining to two other
victims (counts eight and nine). There were other charged
offenses as well, but they are not relevant for our purposes.
Defendant’s jury was instructed on the natural and
probable consequences doctrine—but only in connection with the
attempted murder charges in counts eight and nine. As to the
murder charges, the jury was instructed on principles of direct
aiding and abetting only. The multiple murder special
circumstance instruction given to the jury required it to find
defendant had the intent to kill Johnson (the victim alleged in
count seven of the information) to find the special circumstance
allegation true.3
The jury convicted defendant on each of the aforementioned
murder and attempted charges; the jury found the murder of
Johnson (count seven) was first degree murder and the murder of
Long was second degree murder. The jury also found the alleged
multiple murder special circumstance true. The jury fixed
defendant’s penalty at life in prison without possibility of parole,
and that is the sentence the trial court imposed (with other
3
The court’s instruction, patterned on CALJIC No. 8.80,
stated: “As to Count 7, [i]f you find beyond a reasonable doubt
that defendant Diego was an aider or abettor then you must also
find beyond a reasonable doubt that defendant Diego with intent
to kill aided and abetted an actor in commission of the murder in
the first degree, in order to find the special circumstance to be
true.”
3
particulars that are not relevant for our purposes). This court
affirmed the judgment on direct appeal. (People v. Diego et al.
(Aug. 10, 1993, B059660) [nonpub. opn.] (Diego I).)
After passage of SB 1437 in 2018, defendant filed a section
1170.95 petition for resentencing. Defendant, by checking boxes
on a pre-printed form, asserted he was convicted of first or second
degree murder pursuant to the felony murder rule or the natural
and probable consequences doctrine but could no longer be
convicted of murder because of changes made by SB 1437. The
trial court appointed counsel to represent defendant.
The prosecution opposed defendant’s petition and argued
SB 1437 is unconstitutional and defendant is ineligible for section
1170.95 relief regardless because he was victim Long’s actual
killer and a direct aider and abettor in the murder of victim
Johnson. Defendant’s reply brief conceded he was not seeking to
vacate his second degree murder conviction for killing Long, only
his first degree murder conviction for killing Johnson. The reply
made no mention of his attempted murder convictions.
The trial court heard the arguments of counsel at a hearing
and later issued an order denying defendant’s petition based on
its conclusion that he was ineligible for relief as a matter of law.
The court found defendant was not entitled to resentencing on his
first degree murder conviction because Diego I established he was
convicted as a direct aider and abettor, not pursuant to the felony
murder rule or the natural and probable consequences doctrine.
Though defendant’s briefing had not presented any other issue
for decision, the trial court additionally found defendant was not
entitled to resentencing on his second degree murder conviction
(because he was victim Long’s actual killer) or his attempted
4
murder convictions (because section 1170.95 does not authorize
relief for attempted murder).
II. DISCUSSION
The challenged trial court ruling—that defendant is
ineligible for section 1170.95 relief as a matter of law—is correct,
even if part of the court’s rationale unnecessarily relied on
statements made in Diego I. The jury instructions given at
defendant’s trial leave no doubt defendant was convicted of
murder as a direct aider and abettor, which is a ground that
remains valid notwithstanding SB 1437’s amendments to the
Penal Code’s murder statutes. In addition, and assuming for
argument’s sake that the question of relief for defendant’s
attempted murder convictions is properly before us, we follow
precedent holding section 1170.95 does not authorize relief for
attempted murder convictions.
As the judicially noticed portions of the record from
defendant’s direct appeal confirm, defendant’s jury was not
instructed on felony murder and the natural and probable
consequences instruction the jury did receive was expressly
limited to the attempted murder charges in counts eight and
nine. That means the jury could have convicted him of Johnson’s
murder only as a direct aider and abettor,4 and that means he is
ineligible for section 1170.95 relief as to his first degree murder
conviction as a matter of law. (§ 1170.95, subd. (a)(3); People v.
Verdugo (2020) 44 Cal.App.5th 320, 330 [the record of conviction
may establish that defendant “is ineligible for relief as a matter
4
The jury’s true finding on the multiple murder special
circumstance confirms the same.
5
of law because he or she was convicted on a ground that remains
valid notwithstanding Senate Bill 1437’s amendments to sections
188 and 189”], review granted Mar. 18, 2020, S260493; People v.
Martinez (2019) 31 Cal.App.5th 719, 723 [“Senate Bill 1437 was
enacted to ‘amend the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, to ensure
that murder liability is not imposed on a person who is not the
actual killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f))”],
italics added; see also People v. Smith (2020) 49 Cal.App.5th 85,
92 [“If it is clear from the record of conviction that the petitioner
cannot establish eligibility as a matter of law, the trial court may
deny the petition”], review granted Jul. 22, 2020, S262835.)
As for defendant’s attempted murder convictions, the trial
court found section 1170.95 does not authorize vacatur of such
convictions, relying on appellate precedent so holding. That is
right, as we agree section 1170.95 relief can be had only for
murder convictions, not attempted murder convictions. (See, e.g.,
People v. Love (2020) 55 Cal.App.5th 273, 279, review granted
Dec. 16, 2020, S265445; People v. Alaybue (2020) 51 Cal.App.5th
207, 222-225; People v. Dennis (2020) 47 Cal.App.5th 838, 841,
review granted Jul. 29, 2020, S262184; People v. Munoz (2019) 39
Cal.App.5th 738, 753-769, review granted Nov. 26, 2019,
S258234; People v. Lopez (2019) 38 Cal.App.5th 1087, 1103-1112,
review granted Nov. 13, 2019, S258175.)
6
DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
7