People v. Diaz CA2/3 ( 2022 )

Filed 12/30/22 P. v. Diaz CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a).
This opinion has not been certified for publication or ordered published for purposes of rule
8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B313714
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA387967
v.
DONIVAN DIAZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, George G. Lomeli, Judge. Reversed and
remanded with directions.
John A. Colucci, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Marc A. Kohm, William H. Shin, and Lindsay
Boyd, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________________
INTRODUCTION
In 2014, a jury convicted Donivan Diaz and two
codefendants of first degree murder and found true felony-
murder special circumstance allegations that the murder
occurred during a robbery and a burglary (Pen. Code,1 § 190.2,
subd. (a)(17)). The jury’s verdicts did not determine which
defendant was the actual killer. The court sentenced Diaz to life
in prison without the possibility of parole.
After we affirmed his conviction, Diaz filed a resentencing
petition under section 1172.6.2 The trial court denied the petition
without issuing an order to show cause, finding that based on the
jury’s felony-murder special circumstance findings and the facts
of the case, Diaz was a major participant in the underlying
felonies who acted with reckless indifference to human life. The
court concluded Diaz was ineligible for relief as a matter of law.
Diaz appeals the court’s order denying his resentencing
petition, arguing, among other things, the court erred in finding
the felony-murder special circumstance findings rendered him
ineligible for relief as a matter of law. After Diaz filed his appeal,
the California Supreme Court decided People v. Strong (2022) 13
Cal.5th 698 (Strong), holding that a felony-murder special
circumstance finding made before the court’s decisions in People
v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark) does not render a petitioner ineligible for
relief as a matter of law under section 1172.6.
In light of Strong, the People concede the court erred in
denying Diaz’s petition. We agree. Because Diaz made a prima
facie showing of entitlement to relief, we remand the matter with
1 All undesignated statutory references are to the Penal Code.
2Effective June 30, 2022, section 1170.95 was renumbered as section
1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
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directions for the court to issue an order to show cause and hold
an evidentiary hearing under section 1172.6, subdivision (d)(3).
BACKGROUND3
In 2011, Diaz and codefendants Octivan Moore and Michael
Onley committed a residential burglary and robbery during
which one of them shot and killed the victim. The victim was
found dead a few days later with his hands and feet bound and
seven gunshot wounds: four to the back of his head, one to his
neck, and two to his legs.
Diaz, Moore, and Onley were charged with murder (§ 187,
subd. (a)). As to each defendant, the information alleged he
committed the murder while engaged in the crimes of robbery
and burglary (§ 190.2, subd. (a)(17)). The information further
alleged that a principal personally and intentionally discharged a
firearm in the commission of the murder (§ 12022.53, subds. (d) &
(e)(1)) and that each defendant committed the murder for the
benefit of, at the direction of, and in association with, a criminal
street gang (§ 1192.7, subd. (c)(28)).
In 2014, Diaz and the other defendants were tried together
by a single jury. As to each defendant, the jury found him guilty
of murder and found true the felony-murder special circumstance
allegations and the firearm allegation. The jury found not true
the gang allegation as to each defendant. The court sentenced
each defendant to a term of life in prison without the possibility
of parole.
We affirmed Diaz’s conviction.
3A more detailed summary of the facts giving rise to Diaz’s conviction
can be found in our nonpublished prior opinion in People v. Diaz, et al.
(Apr. 15, 2016, B258629).
3
In 2015 and 2016, the California Supreme Court decided
Banks and Clark, respectively, which clarify when an aider and
abettor of a felony murder may be sentenced to life in prison
without the possibility of parole under section 190.2. (Banks,
supra, 61 Cal.4th at p. 794; Clark, supra, 63 Cal.4th at pp. 609–
610.) Banks identified a nonexhaustive set of factors for
determining if the defendant was a major participant in the
underlying felony, and Clark provided a similar set of factors for
determining if the defendant acted with reckless indifference to
human life. (Banks, at p. 803; Clark, at pp. 619–623.)
In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (S.B. 1437), changing, among other
things, the definition of felony murder and creating a procedure
for vacating convictions that predate the amendment and could
not be sustained under the new law. (Stats. 2018, ch. 1015, § 4.)
In 2020, Diaz petitioned for resentencing under section
1172.6. Diaz alleged: (1) he had been convicted of first or second
degree murder under a felony murder or natural and probable
consequences theory; (2) he was not the actual killer; (3) he did
not, with the intent to kill, aid and abet the actual killer; (4) he
was not a major participant in the underlying felony or did not
act with reckless indifference to human life; and (5) he could not
be convicted of murder under a currently valid theory. Diaz asked
the court to appoint him counsel, which the court did.
The People initially opposed Diaz’s petition, arguing the
jury’s felony-murder special circumstance findings rendered him
ineligible for relief as a matter of law. At the very least, the
People argued, the facts established Diaz was a major participant
in the underlying robbery and burglary and acted with reckless
indifference to human life under the standards discussed in
Banks and Clark. In a supplemental brief, the People withdrew
the arguments made in their initial opposition and conceded that
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Diaz was entitled to an evidentiary hearing under section 1172.6,
subdivision (d). According to the People, the jury’s felony-murder
special circumstance findings made before Banks and Clark were
decided did not preclude Diaz from making a prima facie showing
of entitlement to relief under section 1172.6.
In 2021, the court held a hearing at which Diaz’s counsel,
but not Diaz, was present. The court denied Diaz’s petition
without issuing an order to show cause. Although the court found
the petition was facially sufficient, it concluded Diaz was
ineligible for relief as a matter of law because the jury found he
was a major participant in the underlying felonies who acted with
reckless indifference to human life when it sustained the felony-
murder special circumstance findings. The court also found the
evidence established that, under the standards discussed in
Banks and Clark, Diaz was a major participant in the underlying
felonies who acted with reckless indifference to human life.
Diaz appeals the court’s denial of his resentencing petition.
DISCUSSION
1. S.B. 1437 and Section 1172.6
S.B. 1437 limited accomplice liability under the felony
murder rule and eliminated the natural and probable
consequences doctrine to ensure a person’s sentence is
commensurate with his or her culpability. (People v. Gentile
(2020) 10 Cal.5th 830, 842–843.) Now, the felony murder rule
applies only if the defendant: (1) was the actual killer; or (2) with
the intent to kill, aided and abetted the actual killer’s commission
of murder; or (3) acted as a “major participant” in a felony listed
in section 189 and acted with “reckless indifference to human
life.” (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 3; §
188, subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2.)
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S.B. 1437 also added section 1172.6, which provides people
who have been convicted of murder under one of the now-invalid
theories the opportunity to petition for resentencing. (Stats. 2018,
ch. 1015, § 4; Stats. 2022, ch. 58, § 10.) A petitioner is eligible for
relief under section 1172.6 if (1) the complaint or information
allowed the prosecution to proceed under a felony murder theory;
(2) the petitioner was convicted of murder “following a trial or
accepted a plea offer in lieu of a trial at which the petitioner
could have been convicted” of murder; and (3) the “petitioner
could not presently be convicted” of murder “because of changes
to Section 188 or 189.” (§ 1172.6, subd. (a).)
If the petitioner files a facially sufficient petition, the court
must appoint counsel. (§ 1172.6, subd. (b)(3).) Additionally, if the
petitioner makes a prima facie showing of entitlement to relief,
the court must issue an order to show cause (Id., subd. (c)) and
hold an evidentiary hearing at which the prosecution must prove
“beyond a reasonable doubt[ ] that the petitioner is guilty of
murder or attempted murder” under the law as amended by
Senate Bill 1437. (Id., subd. (d)(3)).
Whether a petitioner has made a prima facie showing of
entitlement to relief under section 1172.6 is a “ ‘purely legal
conclusion, which we review de novo.’ ” (People v. Ervin (2021) 72
Cal.App.5th 90, 101.)
2. Diaz is entitled to an evidentiary hearing.
Diaz contends, and the People concede,4 that the court
erred when it found the jury’s pre-Banks and Clark felony-
murder special circumstance findings rendered him ineligible for
4Because Strong was decided while this appeal was pending, we asked
the parties to submit supplemental briefs addressing Strong’s
relevance to this appeal.
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relief as a matter of law under section 1172.6. We agree with the
parties.
In Strong, the Supreme Court held that felony-murder
special circumstance findings made before Banks and Clark were
decided “do not preclude a defendant from making out a prima
facie case for relief under Senate Bill 1437.” (Strong, supra, 13
Cal.5th at p. 710.) The Supreme Court also held that a court’s
independent examination of the record and determination that
sufficient evidence supports a finding that had the defendant
been tried under the standards discussed in Banks and Clark, he
was a major participant who acted with reckless indifference to
human life cannot “suppl[y] a basis to reject an otherwise
adequate prima facie showing and deny issuance of an order to
show cause.” (Id. at p. 720.)
It is undisputed that Diaz’s felony-murder special
circumstance findings predate Banks and Clark. Thus, those
findings do not render Diaz ineligible for relief under section
1172.6. Additionally, the court erred by determining, at the
prima facie stage, that Diaz was ineligible for relief because the
evidence showed he was a major participant in the underlying
felonies who acted with reckless indifference to human life under
the standards discussed in Banks and Clark. (See Strong, supra,
13 Cal.5th at p. 720 [“such a determination would entail
factfinding prohibited at the prima facie stage”].) “And as the
Legislature has made explicit in a recent amendment to the
predecessor to section 1172.6, a court determination that
substantial evidence supports a homicide conviction is not a basis
for denying resentencing after an evidentiary hearing. [Citation.]
Nor, then, is it a basis for denying a petitioner the opportunity to
have an evidentiary hearing in the first place.” (Ibid.)
Because nothing in the record establishes Diaz is ineligible
for relief as a matter of law, the matter must be remanded for the
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court to issue an order to show cause and hold an evidentiary
hearing under section 1172.6, subdivision (d)(3).
3. Disqualification of the trial judge is not warranted.
Diaz asks us to disqualify Judge George G. Lomeli and
transfer the matter to a new judge on remand. Code of Civil
Procedure section 170.1, subdivision (c) provides: “At the request
of a party or on its own motion an appellate court shall consider
whether in the interests of justice it should direct that further
proceedings be heard before a trial judge other than the judge
whose judgment or order was reviewed by the appellate court.”
An appellate court must exercise its power to disqualify a judge
“sparingly” (People v. LaBlanc (2015) 238 Cal.App.4th 1059,
1079), such as when the judge “indicates an animus inconsistent
with judicial objectivity” or exhibits a “whimsical disregard” of
the applicable law (People v. Gulbrandsen (1989) 209 Cal.App.3d
1547, 1562).
According to Diaz, Judge Lomeli “ignored the plain
language of pertinent statutes, proceeded without the presence of
[Diaz], and ignored the concessions of the opposing party. It
appears the trial court has prejudged the issue and has certainly
already judged the issue once. There may be an inherent bias to
reach a similar conclusion on remand.” We deny Diaz’s request to
disqualify Judge Lomeli.
At the time the court considered Diaz’s petition, there was
a split of authority on the primary issue in this appeal—i.e.,
whether a felony-murder special circumstance finding made
before Banks and Clark were decided serves as a categorical bar
to resentencing relief under section 1172.6. (Strong, supra, 13
Cal.5th at pp. 709–710.) Before the Supreme Court decided
Strong, several appellate courts held that pre-Banks and Clark
felony-murder special circumstance findings “categorically
preclude relief unless they have been vacated or set aside on
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direct appeal or collateral review.” (Id. at p. 709.) Other courts
“concluded that pre-Banks and Clark findings do not pose a
categorical bar but may foreclose relief if a court determines that
sufficient evidence supports the findings under the Banks and
Clark standards.” (Ibid.) Accordingly, published authority
supported the court’s rationale at the time it denied Diaz’s
petition. In other words, the court’s ruling was reasonable and
supported by case law at the time it was made. Additionally,
nothing in the record indicates the court’s decision to conduct the
hearing on Diaz’s petition with defense counsel, but not Diaz,
present was motivated by any animus against Diaz.
After reviewing the record, we are confident Judge Lomeli
will proceed in an impartial manner on remand. Diaz’s request to
disqualify Judge Lomeli is therefore denied.5
5Because we reverse the court’s order denying Diaz’s petition and
remand the matter for further proceedings under section 1172.6, we
need not address the other claims of error raised in Diaz’s opening
brief.
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DISPOSITION
The order denying Diaz’s resentencing petition is reversed.
The matter is remanded to the trial court with directions to issue
an order to show cause and hold an evidentiary hearing under
section 1172.6.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
RICHARDSON (ANNE K.), J.*
*Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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