People v. Diaz CA2/3 ( 2020 )

Filed 12/23/20 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B301598
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA225116
v.
JUAN ANTONIO DIAZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Terry A. Bork, Judge. Reversed and
remanded.
Kathy R. Moreno, 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,
Assistant Attorney General, Charles Lee and David E. Madeo,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Juan Antonio Diaz appeals from the superior court’s
denial of his petition for resentencing under Penal Code section
1170.95.1 The Attorney General agrees the court erred in
denying the petition without issuing an order to show cause and
proceeding to an evidentiary hearing. Accordingly, we reverse
the court’s order denying Diaz’s petition and remand for further
proceedings.
FACTS AND PROCEDURAL BACKGROUND
A jury convicted Diaz of first degree murder and attempted
second degree robbery in the October 2001 shooting of Hector
Quevado. (People v. Diaz (Aug. 30, 2004, B169353) [nonpub.
opn.].) The jury found true allegations that Diaz committed
the crimes for the benefit of a criminal street gang and that
a principal personally and intentionally discharged a firearm
causing Quevado’s death. (Ibid.) The trial court—the Honorable
Marsha N. Revel—sentenced Diaz to a term of 50 years to life
in prison. (Ibid.) On August 30, 2004, we affirmed Diaz’s
conviction. (Ibid.)
After Senate Bill No. 1437 (SB 1437) took effect, Diaz
filed, on April 22, 2019, a petition for resentencing under section
1170.95. The petition was assigned to Department 128 of the
Los Angeles Superior Court in downtown Los Angeles. The
judge now assigned to that court is the Honorable Terry A. Bork.
The Office of the Alternate Public Defender was appointed
to represent Diaz. The District Attorney filed an opposition
to the petition, Diaz’s counsel filed a reply, and the prosecution
filed a surreply.
Judge Bork held a hearing on the petition on September 30,
2019. Diaz was present with counsel. The court stated it had
read the written submissions as well as the court of appeal’s
1 References to statutes are to the Penal Code.
unpublished opinion affirming Diaz’s conviction. After hearing
counsel’s arguments, the court denied the petition. Judge Bork
noted he had not presided over the trial “and so therefore [his]
knowledge of the facts . . . is, of course, derivative.” The court
stated, “I rely on the court of appeal’s statement of facts for the
factual background of this case and make my determinations
based upon that.”
“Turning to the facts of this case as they are reported by
the court of appeal,” Judge Bork noted Diaz and his co-defendant
Abel Lopez were fellow gang members. After detailing the
evidence at trial as set forth in the opinion on direct appeal,
the court stated Diaz “was a ringleader in the robbery” who
“directed” Lopez to make a gang challenge to the victim, “first
introduced violence by striking the victim,” and “then stood
and watched without objection as [Lopez] fired four or five shots
at the victim.” Judge Bork concluded, “the evidence at trial,
as described in the court of appeal’s opinion, show[s] that
the defendant was a major participant in the crime and acted
with reckless indifference” to human life within the meaning
of sections 189, subdivision (e)(3) and 190.2, subdivision (d).
The court stated Diaz therefore was “not eligible for relief”
and denied his petition.
DISCUSSION
On appeal, Diaz contends the superior court erred by
denying his petition based on the court of appeal’s opinion
without permitting him to present new evidence as well as
argument on accomplice liability under People v. Banks (2015)
61 Cal.4th 788. The Attorney General agrees.
The Attorney General notes “the superior court must
engage in a two-step procedure before it may issue an order
to show cause.” Here, “[t]he parties completed that process,
which revealed that [Diaz’s] murder conviction could have been
based on a felony murder theory.” The Attorney General states,
“While the trial court’s characterization of the facts [as stated
in this Court’s appellate opinion] appears to be correct, there
is no indication in the record that [Diaz] was ineligible for relief
as a matter of law.” The Attorney General concludes, “Therefore,
the trial court should have issued an order to show cause and
held an evidentiary hearing under section 1170.95, subdivision
(d), to weigh the evidence and decide whether relief should be
granted.”
The Attorney General explains,
“Here, there is nothing in the record that
indicates [Diaz] was necessarily convicted of
felony murder based on a theory that he was
a major participant in the robbery and acted
with reckless indifference to human life. The
finder of fact was not specifically required
to consider that question because he was not
charged with special circumstance[s] felony
murder under section 190.2. Nor would it have
been required to find [Diaz] was the actual
killer or acted with actual malice. Before
Senate Bill 1437, section 189 permitted
a conviction for felony murder by simply
imputing malice to those who commit a felony
inherently dangerous to human life which
results in homicide. (People v. Chun (2009)
45 Cal.4th 1172, 1184.) Also, the jury was
instructed on the pre-Senate Bill 1437 version
of felony murder. (SCT 104; CALJIC No. 8.21.)
As a result, the court’s observations about the
evidence in the record in support of a major
participant/reckless indifference finding are
insufficient to show that [Diaz] is absolutely
ineligible for section 1170.95 relief as a matter
of law. (See [People v.] Verdugo [(2020)] 44
Cal.App.5th [320,] 329-330.)”
In short, the parties agree we must remand the case for
the trial court to issue an order to show cause and to proceed to
an evidentiary hearing at which the prosecution has the burden
of proving beyond a reasonable doubt that Diaz is ineligible
for resentencing and both parties may offer new or additional
evidence to meet their respective burdens. (§ 1170.95, subd.
(d)(3).)
Two additional points: First, the Attorney General notes
that, if the trial court grants Diaz’s resentencing petition on the
murder count, the firearm enhancement cannot be imposed. The
court at that juncture would resentence Diaz on the remaining
attempted robbery count and the applicable enhancements.
Second, our colleagues in Division 5 recently held that
section 1170.95, subdivision (b)(1) requires the judge who
originally sentenced the petitioner to rule on the petition for
resentencing, unless that judge is unavailable. (People v. Santos
(2020) 53 Cal.App.5th 467, 472-473.) Accordingly, the Honorable
Marsha N. Revel—who presided over Diaz’s trial and sentenced
him—should hear and decide Diaz’s petition unless she is
unavailable.
DISPOSITION
We reverse the superior court’s order denying Juan Antonio
Diaz’s petition for resentencing and remand the case for further
proceedings consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.