People v. Diaz ( 2023 )

Filed 12/18/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B319020
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA482366
v.
JOSE DIAZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Lynn M. Hobbs, Judge. Remanded with
directions.
Edward J. Haggerty, 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, Senior
Assistant Attorney General, and Mark A. Kohm and David A.
Wildman, Deputy Attorneys General, for Plaintiff and
Respondent.
____________________
Jose Diaz shot a street vendor to death for selling on
someone else’s turf. Diaz appeals his conviction for first-degree
murder. He claims police lacked probable cause to arrest him.
But during a surveillance, police spotted Diaz and his distinctive
neck tattoo in an incriminating place at an incriminating time,
which supplied ample probable cause. Diaz also argues,
incorrectly, that the prosecutor committed misconduct by
sandbagging his closing argument. Other arguments fail as well,
but Diaz does raise sentencing issues with more success. We
remand for the trial court to consider whether People v. Tirado
(2022) 12 Cal.5th 688 (Tirado) and Senate Bill No. 81 (2021-2022
Reg. Sess.) (SB 81) have any bearing on Diaz’s sentence. We
otherwise affirm. Statutory citations are to the Penal Code.
I
We recount the facts in favor of the prevailing trial party.
A
William Garcia, age 22, worked at a taco stand. On
October 24, 2019, Garcia and his co-worker Joachin Tomas
Gonzalez set up their stand on a public sidewalk. A black pickup
came to the curb. A man later identified as Diaz got out of the
passenger side and said they “couldn’t be there, that someone
else was paying for that spot.” Diaz left in the pickup.
The next day Garcia and Gonzalez tried a different location
but made less money. The day after that, on October 26, 2019,
the pair set up where Diaz told them not to be. Diaz appeared on
foot, knocked over their table, and said “You didn’t get it, did
you?”
Diaz drew a gun and pulled its trigger but it did not fire.
He drew another gun and fatally shot Garcia. Diaz left in the
same pickup as before.
Gonzalez told police the shooter was a Hispanic man with a
neck tattoo. This tattoo was of a blue flower with a red center, on
2
the right side of the neck. A detective said Gonzalez told her “it
looked like a flower, maybe a rose.”
Gonzalez also said the shooter had black shaved hair and
brown eyes, was 5 foot 8 to 5 foot 10 and 30-36 years of age, with
a medium build and a dark complexion. Diaz’s driver license lists
his hair as black, eyes as brown, height as 5 foot 9 inches, weight
as 180 pounds, and birth date as July 27, 1982. Diaz was 37
when he shot Garcia.
Gonzalez worked with a police sketch artist to create the
shooter’s image, which Gonzalez did not think was a good
likeness of the killer. The sketch showed a flower tattoo on the
right side of the man’s neck. Police included this sketch in a one-
page crime alert.
B
Witnesses heard the shot and saw someone enter the
passenger side of a black pickup some distance from Garcia’s
stand. A dash camera recorded the pickup’s license plate, which
identified Felix Toco as the pickup’s owner. Police went to Toco’s
residence at 117 South Fresno Street, but found no pickup. They
did find Toco’s employees, who said he ran taco stands in Los
Angeles. These employees said Toco had them prepare food for
his stands at his warehouse on 3144 First Street, adjacent to
Toco’s house.
Police knew two people had been in the pickup, so they had
two suspects at large: Toco and a nameless man. One had the
flower tattoo on his neck. Police suspected a close relationship
between the two.
Police got warrants to search Toco’s home and warehouse
and to arrest Toco. In the morning of October 31, 2019, some 20
officers began watching the warehouse and home on the
3
southwest corner of Fresno Street and First Street. This
surveillance team hoped to arrest Toco and to search both places.
After about four hours, a man walked past one of the
surveillance cars to Toco’s warehouse gate, where he spoke with
Toco’s workers. Team members saw a large flower tattoo on the
right side of this man’s neck. They arrested him and found he
was Jose Diaz. They put his photo in a six-pack array and
showed it to Gonzalez, who identified Diaz.
C
Toco considered the public street corner in question to be a
taco stand location he owned. Toco’s business involved preparing
taco ingredients at his warehouse. His crews then would drive
the ingredients to Los Angeles locations where they would set up
stands. Toco’s home and warehouse were about a 15- or 20-
minute drive from the murder scene.
Witness interviews, video footage, and mobile telephone
records allowed police to reconstruct events of the two key dates:
the warning day of October 24, 2019, and the murder day of
October 26, 2019.
On the warning day, Toco learned from employees a
business rival had set up a taco stand on the corner where Garcia
was. This spot was profitable: a prize location. Toco contacted
Diaz, who lived a few houses from Toco’s warehouse and from
Toco’s house. In his pickup, Toco drove Diaz to the corner where
Garcia and Gonzalez were selling tacos. Diaz got out, told the
two not to sell tacos there, and left with Toco.
Two days later, on the day of the murder, Garcia and
Gonzalez returned to that corner. Phone records and videos
showed Toco again contacting Diaz and driving him to the corner.
Toco parked a distance away. Diaz walked to Garcia, shot him,
4
and returned to Toco’s pickup. Toco drove Diaz back to their
neighborhood. A video showed Toco giving Diaz money.
D
Prosecutors charged Diaz with first degree murder. Toco is
not involved with this appeal.
Before his preliminary hearing, Diaz moved for a ruling
that police arrested him without probable cause. The court heard
this motion at the same time it conducted the preliminary
hearing. After hearing the evidence, the court denied this
motion, citing “the distinctiveness and the location of the tattoo
on his neck.”
Diaz appealed the denial of his suppression motion to the
trial court. He offered evidence 93% of the population in that
neighborhood is Hispanic. ~(2CT 340)~ The court took
testimony. This court also denied Diaz’s motion and ruled police
had probable cause to arrest Diaz.
This second court made findings about the crime alert the
arresting officers had seen, which included the sketch artist’s
rendering. The court stated the flower pictured on the neck in
the crime alert sketch “appears to be a computer-generated type
of rose. It doesn’t even seem like a drawing of a rose; rather, it
appears to be kind of like an icon that’s placed on the neck.”
Regarding the description as a “male Hispanic,” the court
found “in that area of our city . . . that is somewhat of a
nondescriptor. . . . [H]undreds of thousands of people” would
meet that description.
The court found that Diaz’s neck tattoo “is unique. Judge
Sullivan [who first ruled on the motion to suppress] found it to be
unique; th[is] court finds it to be unique.” “[T]he description of
what the court sees on his neck matches distinctively with what
5
the victim described at the time, it being a blue flower—it could
have been a rose—but a blue flower, blue ink. . . . I note[d] the
redness one day that I was looking at it and one of the photos
shows it as well, there’s redness to his neck. That could be why
the witness also describes the color red to it—at least in the photo
there’s shown redness on his neck. The court finds that that too
is distinctive.” “[T]his court does find that tattoo is unique and
was described in a pattern that can be relied upon.”
The court added that another identifying feature was “the
defendant being seen near the location of the search warrant
during the time they’re having a surveillance. . . . The property
that was being surveilled was [Diaz’s] actual location.” The
police surveillance was at Fresno and First Street in Los Angeles,
which was the location of Toco’s home and warehouse.
The court concluded police had probable cause and denied
the appeal of his suppression motion.
At trial, Gonzalez identified Diaz as the shooter. Witnesses
described how police discovered Toco’s license plate number,
which eventually led them to Diaz. The prosecution played
videos showing how Toco and Diaz worked together on both days,
and how Toco then paid Diaz in cash. Phone records corroborated
their joint action. After two hours of deliberation, the jury
convicted Diaz of first-degree murder.
II
Diaz’s appellate arguments are unavailing, except for two
points about the gun enhancement to his sentence.
A
Diaz argues police lacked probable cause to arrest him.
The probable cause, however, was ample.
6
Constitutional law requires probable cause for arrests. The
essence of probable cause is a reasonable belief of criminal guilt
that is particular to the arrested person. This standard is
practical rather than technical; it deals with the factual aspects
of everyday life on which reasonable and prudent people act. One
need not be a legal technician to grasp the concept. (Maryland v.
Pringle (2003) 540 U.S. 366, 370–371 (Pringle).)
To determine whether officers had probable cause for an
arrest, we examine the events leading up to the arrest and decide
whether these historical facts, viewed from the standpoint of an
objectively reasonable officer, amount to probable cause. It
depends on the totality of the circumstances. As the name
implies, probable cause deals with probabilities. It requires only
a probability or substantial chance of criminal activity, not an
actual showing of a crime. Probable cause is not a high bar.
(District of Columbia v. Wesby (2018) 583 U.S. 48, 56-57.)
The standard is flexible and easy to apply. (Illinois v. Gates
(1983) 462 U.S. 213, 238–239.) The determination of reasonable
suspicion must be based on commonsense judgments and
inferences about human behavior. (Illinois v. Wardlow (2000)
528 U.S. 119, 125.)
These standards are federal. California state law must
adhere to them. (People v. Souza (1994) 9 Cal.4th 224, 232–233.)
We defer to the trial court’s express and implied factual
findings if substantial evidence supports them. Based on those
facts, we independently determine the legality of an arrest. (See
People v. Tully (2012) 54 Cal.4th 952, 979.)
The trial court found Diaz’s neck tattoo was “unique.” Diaz
has not controverted this factual finding. Rather, he has
conceded “he does have a quite distinct tattoo; there’s no denying
7
that.” Elsewhere Diaz’s counsel wrote Diaz “does not deny that
he has a distinctive tattoo on his neck.” Nor has Diaz suggested
that, while the design of his particular flower tattoo is distinctive,
it is common for men to have some kind of flower tattoo on their
necks. As a factual matter, then, the presence of any kind of
flower tattoo on a man’s neck was, on this record, highly
distinctive. This accords with common experience.
Police had probable cause to arrest Diaz. They had a
location connected with the murder, thanks to the license plate.
They went to the suspect location as soon as they could get
warrants. Nearly immediately, Diaz and his highly distinctive
neck tattoo showed up. The confluence of three independent
factors—right place plus right time plus a highly distinctive
personal feature—vastly increased the probability police found a
guilty man. There was probable cause.
Diaz’s contrary arguments are unsuccessful.
Diaz argues the general description of a Hispanic male of
average height and build match the physical characteristics of
most men in the neighborhood where he was arrested. This
argument ignores what was distinctive—the neck tattoo—and
focuses on what was not.
As for the tattoo, Diaz asserts this was not so distinctive as
to provide a reasonable person with a strong suspicion that Diaz
had committed the homicide. This assertion is incorrect, because
a man with a unique or highly distinctive feature who appears in
the right place at the right time does trigger a reasonable
conclusion that police located the man guilty of the shooting. It
may not be proof beyond a reasonable doubt, but that standard
has no place in probable cause determinations. (Pringle, supra,540 U.S. at p. 371.)
8
Diaz also argues there was no probable cause because
Diaz’s tattoo had no red in it and police had a description of a
tattoo of a blue flower “with possibly a red center.” The trial
court found as facts that Diaz’s tattoo was in blue ink and there
was “redness on his neck.” More generally, this argument
assumes blue flower neck tattoos are common on men, and the
only thing distinctive about this witness description was the
redness in the tattoo. No record facts support this odd
assumption.
Diaz’s argument about the size of the flower tattoo also
fails. He describes his tattoo as “quite large and distinctive,
covering the entire right side of his neck . . . .” Gonzalez,
however, did not describe the shooter’s flower tattoo as small.
Nor was there a factual showing that many men have small
flowers tattooed on their necks and the unusual thing about
Diaz’s flower tattoo was its large size.
Diaz’s case citations do not apply to this situation. All
involved generic descriptions. None dealt with a person with a
highly distinctive feature who was in the right place at the right
time. (See People v. Harris (1975) 15 Cal.3d 384, 387; People v.
Curtis (1969) 70 Cal.2d 347, 350, 358; People v. Mickelson (1963)
59 Cal.2d 448, 452–454; In re Dung T. (1984) 160 Cal.App.3d 697,
712–718; People v. Jorge S. (1977) 74 Cal.App.3d 852, 854–858.)
In sum, probable cause supported this legitimate arrest.
B
Diaz argues the prosecution committed misconduct in its
closing argument. The misconduct Diaz alleges is sandbagging:
waiting until the prosecution’s rebuttal to attack Kathy Pezdek,
who was Diaz’s expert on eyewitness identification. Diaz did not
object at trial and forfeited this argument.
9
In any event, there was no sandbagging and no misconduct.
The prosecution’s opening argument at the conclusion of
trial was thorough and reasonably lengthy. We detail these
points.
This argument was thorough. It began by explaining to the
jurors their role and the burden on the prosecution. The
argument then set out the elements of the offense and the proof
that satisfied each element. The argument reviewed how the
evidence revealed the progression of events on the two days in
question. The prosecutor played two videotapes to assist this
presentation. He read from jury instructions and discussed
reasons why, in his view, the jurors should accept Gonzalez’s
identification of Diaz as reliable. He explained how other
evidence corroborated Gonzalez’s testimony.
This argument was reasonably lengthy. It began on page
3001 of the reporters’ transcript and concluded on page 3018.
The transcript does not reveal the duration of the videotapes the
prosecutor played.
Diaz’s closing argument began on page 3018 and concluded
on page 3033. This defense attorney explained the concept of
reasonable doubt and pointed out weaknesses in the prosecution’s
case, including the arguable inconsistencies in Gonzalez’s
description and identification of Diaz. Diaz’s counsel referred to
Pezdek’s testimony about factors that can render identifications
more and less reliable. The defense argument extensively
contended Gonzalez was not confident about his identification of
Diaz.
The prosecutor’s rebuttal argument began at page 3035 and
ended on page 3045. The prosecutor told the jury his second
argument would be “just a response to things I heard from
10
[defense counsel]. A lot of the things [the defense] was talking
about are a lot of the things that Dr. [Pezdek] was talking about.”
The prosecutor’s second argument sought to establish that
Pezdek’s testimony generally supported rather than undermined
Gonzalez’s identification. The prosecutor ended by playing a
video that he said showed Toco giving Diaz cash for killing
Garcia.
There was nothing wrong with either phase of the
prosecutor’s closing argument. Prosecutors have no obligation to
discuss every defense witness in their opening argument. They
may stick to proof of guilt and aim to be concise. In public
speaking, longer does not mean better.
Diaz bases his sandbagging argument on People v.
Robinson (1995) 31 Cal.App.4th 494, 505 (Robinson), which is a
curious precedent that has no application here. The prosecution
in that case was badly flawed. (1) The prosecutor withheld
exculpatory evidence, (2) the trial court wrongly excluded defense
evidence, and (3) the prosecutor improperly disclosed to the jury
that the defendant was in custody. (Id. at pp. 498–505.)
At the end of a lengthy opinion, the court devoted merely
three sentences to a fourth topic: “[A statute] permits the
prosecutor to open the argument and to close the argument. It
does not permit the prosecutor to give a perfunctory (three and
one-half reporter transcript pages) opening argument designed to
preclude effective defense reply, and then give a ‘rebuttal’
argument—immune from defense reply—ten times longer (35
reporter transcript pages) than his opening argument. [Citations
omitted.] That is what occurred here.” (Robinson, supra, 31
Cal.App.4th at p. 505.) The court concluded this was
prosecutorial misconduct.
11
This holding has not won universal acclaim. (See United
States v. Baca (D.N.M. 2019) 409 F.Supp.3d 1169, 1261
[Robinson created “an arbitrary rule” that the court “does not
find persuasive”].)
We distinguish Robinson. Diaz’s prosecutor gave neither a
perfunctory opening argument nor a rebuttal argument that was
ten times longer. This case is unlike Robinson. There was no
sandbagging.
C
Diaz contends his trial counsel was ineffective because she
did not request CALCRIM No. 522, which is about provocation.
But a provocation defense was contrary to Diaz’s trial theory,
which was misidentification. A provocation defense makes sense
only if there was no misidentification. It was not ineffective
assistance for Diaz’s trial lawyer to fail to request a jury
instruction that clashed with her effort to persuade the jury Diaz
had nothing to do with Garcia’s murder.
As is relevant, the CALCRIM No. 522 instruction states:
522 Provocation: Effect on Degree of Murder
Provocation may reduce a murder from first degree to
second degree. The weight and significance of the provocation, if
any, are for you to decide. If you conclude that the defendant
committed murder but was provoked, consider the provocation in
deciding whether the crime was first or second degree murder.
A satisfactory explanation exists for Diaz’s trial lawyer’s
decision not to present a provocation defense and not to request a
provocation instruction. To be provoked, a person had to be on
the scene. Diaz’s defense was he was not on the scene. It is
possible to argue in the alternative, but to do so risks incredulity
from jurors. Moreover, the only evidence of provocation in the
12
record was that Garcia had defied Diaz’s order to stay away from
a public street corner for which someone else was paying. Diaz’s
attorney sensibly steered clear of that argument, which would
ask the jury to agree that defiance of an extortionate enforcer’s
demand was mitigating—a request that could spark jury
indignation. We reject Diaz’s claim of ineffective assistance. (See
People v. Stewart (2004) 33 Cal.4th 425, 459.)
D
Diaz faults the trial court for giving a jury instruction
about witness certainty in assessing eyewitness identification
testimony. Assuming error, giving this instruction was harmless
under any standard. Diaz used the substance of the instruction
to his benefit. Eliminating the challenged instruction could not
have decreased the likelihood of conviction.
The pertinent eyewitness identification evidence was from
Gonzalez, who picked Diaz’s picture out of a six-pack photo
spread. Police videoed Gonzalez’s response to the six-pack. The
parties edited this video and its corresponding transcript, and the
jury viewed the video and transcript. At the close of trial, the
court instructed the jury on factors to consider when assessing an
eyewitness identification. Diaz now attacks one sentence within
this lengthy instruction.
In particular, Diaz faults the trial court for using
CALCRIM No. 315 without taking account of the Supreme
Court’s decision in People v. Lemcke (2021) 11 Cal.5th 644, 661–
669 (Lemcke). The high court decided Lemcke about six months
before the trial court read CALCRIM No. 315 to Diaz’s jury.
Lemcke criticized the version of this instruction the trial court
used. No one in Diaz’s trial displayed any awareness of Lemcke.
13
We italicize the key sentence in the trial court’s jury
instruction.
“As with any other witness, you must decide whether an
eyewitness gave truthful and accurate testimony. In evaluating
identification testimony, consider the following questions: Did
the witness know, or have contact with the defendant before the
event? How well could the witness see the perpetrator? And
what were the circumstances affecting the witness’s ability to
observe, such as lighting, weather conditions, obstructions,
distance and duration of observation? How closely was the
witness paying attention? Was the witness under stress when he
or she made the observation? Did the witness give a description?
And how does that description compare to the defendant? How
much time passed between the event and the time when the
witness identified the defendant? Was the witness asked to pick
the perpetrator out of a group? Did the witness ever fail to
identify the defendant? Did the witness ever change his or her
mind about the identification? How certain was the witness when
he or she made an identification? Are the witnesses and the
defendant of different races? Were there any other circumstances
affecting a witness’s ability to make an accurate identification?”
Diaz consented to this instruction at trial. In its trial brief,
the prosecution requested 46 standard jury instructions,
including CALCRIM No. 315. Diaz did not file a trial brief.
In an informal session before argument, the court and
counsel went through jury instructions to identify any
controversy. The court named by number the many instructions
it proposed giving, including CALCRIM No. 315. The court
inquired, “Does anyone have any objections? I didn’t hear any.”
Diaz’s counsel asked about three specific instructions not at issue
14
in this appeal. The court and the parties resolved these issues.
After this resolution, the court told the defense, “I didn’t hear any
objections from you or the People, so those will be the
instructions I give.” Without further comment or discussion, the
court and the parties moved on to a different topic. That
concluded the trial discussion of which jury instructions the court
would give.
In sum, the court named the pertinent jury instruction—
CALCRIM No. 315—and invited comment on it and on the other
named instructions. Diaz objected to other instructions and said
nothing about CALCRIM No. 315. This interchange constituted
defense consent to CALCRIM No. 315.
Diaz nonetheless argues the Lemcke decision effectively
invalidated the italicized sentence by inviting the CALCRIM
committee to reevaluate it and by forbidding trial courts from
using this sentence until the committee finished its work. (See
Lemcke, supra, 11 Cal.5th at pp. 661-669; but see id. at p. 669 &
n. 19 [trial courts retain discretion to include this sentence at
defense request].)
The problem for Diaz is that he intentionally employed the
content of the very sentence he now condemns as a trial defense.
The disputed sentence invites jurors, when evaluating the
reliability of witness identification of a person, to consider
whether the witness was certain. That is what Diaz was urging
jurors to do.
The standard of review does not matter because Diaz’s
argument fails them all. Diaz cannot have told jurors that
“certainty matters” and then say on appeal that to say “certainty
matters” was a harmful error. Eliminating this instruction could
15
not have improved Diaz’s trial chances, for the substance of that
instruction was his defense.
Diaz’s counsel took affirmative actions at trial for a clear
tactical purpose. Her trial argument was that Gonzalez’s
identification of Diaz, when examined closely, was hesitant:
Gonzalez was not certain whether Diaz was the shooter. Diaz’s
attorney argued this hesitancy created reasonable doubt, which
dictated acquittal.
Diaz’s trial attorney mounted this underconfidence defense
in a professional and intentional manner. She (1) explained this
defense to the court, (2) supported the defense with evidence, and
(3) argued the defense in closing. We demonstrate these three
instances of intentional attorney conduct, which establish any
error could not have harmed Diaz.
First, to the court, the defense attorney explained the
underconfidence defense. The court and counsel were discussing
which portions of Gonzalez’s transcript and video to redact. For
example, all sides agreed to cut Gonzalez’s comment that he
thought the shooter was “a gangster.” In this video and
transcript, police instructed Gonzalez how to view the six-pack
they were about to show him. They showed Gonzalez the
photographic lineup and Gonzalez pointed to Diaz’s picture.
Then police asked him to circle the picture he selected. The court
asked Diaz’s lawyer why she wanted to include a certain portion
of the tape and transcript. With our italics, she responded: “The
reason I want that is because there was substantial hesitancy by
Mr. [Gonzalez] on his identification [of Diaz]. He did select my
client, but then he backtracked from it. There’s a lot of back-and-
forth dialog, and questions he asked about the six-pack, for
example.”
16
Second, Diaz founded this underconfidence defense in
evidence. The defense called psychologist Pezdek to testify
research showed eyewitness identification can be highly
unreliable. Pezdek identified factors that can make eyewitness
identifications more and less prone to error.
With our italics, Diaz’s counsel asked Pezdek whether there
is “any relationship between someone’s confidence in their
identification, and the actual accuracy of their identification?”
Pezdek answered, “Yes.”
Pezdek continued, with our italics: “Of the people who
choose someone from the photographic lineup, the more confident
witnesses are, the more likely they are to be correct, and the less
confident witnesses are . . . the less likely they are to be correct. So
if someone is not sure; ‘I don’t know,’ ‘I can’t tell you,’ ‘this is
hard,’ something like that, but yet they made a selection anyway,
they are less likely to have picked the right person, they are more
likely to have made a misidentification. So witnesses who aren’t
very confident tend to not be very accurate. Witnesses who tend to
be very confident tend to be more accurate.”
Third, Diaz elaborated the underconfidence defense to the
jury in closing argument. Diaz’s counsel did not refer to any
specific jury instructions in closing, but rather stated generally
“I’m going to talk about the facts and try to link them with some
legal rules that we have for you to consider when you are
deliberating.”
Diaz’s attorney argued Pezdek’s testimony showed the
witness identification of Diaz was not reliable. Defense counsel
maintained Gonzalez lacked confidence in his selection of Diaz’s
picture. The defense conclusion was Gonzalez’s doubt made his
identification of Diaz unreliable. Diaz’s counsel went to some
17
lengths to argue Gonzalez had been uncertain. The argument
was that Gonzalez said one thing but did another: he said he was
certain, but he acted like he was not.
Diaz’s attorney began by conceding how, when police
showed Gonzalez the photo array, Gonzalez picked Diaz’s photo
“quite emphatically.”
But then, Gonzalez immediately contradicted this certainty
by seeming to balk. Police asked Gonzalez to circle Diaz’s
picture, but Gonzalez “didn’t do that. He picked [the photo array]
up. He looked some more, and [Gonzalez] said, ‘Where did you
get the picture? Are these recent? Or is that an old picture?’ ”
Defense counsel continued, with our italics: “That’s not a
sign of confidence, okay? He looks at it again, and it’s in the
transcript as well, page 16, he says again, ‘When did you get this
picture?’ He’s not being confident about his ID. And I understand
that he says that [he is confident] to him multiple times, but he
also does multiple things that suggests he’s not confident of his
identification, particularly, when he says, ‘Are these people all
the same person?’ Now, he’s already picked Mr. Diaz, No. 3, and
then several minutes later he’s still questioning whether these
are all the same person. That’s not a confident and solid
identification. And it doesn’t matter that he eventually
confirmed his ID. It’s clear from the context of what he says that
he isn’t -- he isn’t confident.”
Defense counsel argued jurors should find reasonable doubt
because Gonzalez “had doubts about [his identification of Diaz]
and expressed doubts about it while [making the six-pack
identification], as well as the scientific evidence presented about
what the considerations [about evaluating eyewitness
identifications] should be.”
18
In short, Diaz used the challenged instruction to his
benefit. Removing that instruction could not have helped him.
Assuming there was error, it was harmless by any standard.
(Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson
(1956) 46 Cal.2d 818, 836.)
E
Diaz protests his 75 year to life sentence is cruel and
unusual because it is effectively life without parole. The trial
court imposed 25 years to life for the first degree murder, doubled
as a second strike, plus 25 years to life for a gun enhancement.
(See § 12022.53.)
Diaz was 37 when he murdered Garcia. He was mature,
had an extensive criminal record, and he was willing to shoot a
young man to death, apparently only for cash. When one gun
misfired, without second thoughts Diaz drew another and
murdered Garcia face to face, at close range. Arming yourself
with two guns to ensure you accomplish murder shows unusual
and cold-blooded preparation. The execution was unhesitating
and remorseless.
Diaz’s argument collides with a solid wall of contrary
precedent. (See In re Williams (2020) 57 Cal.App.5th 427, 437–
439 [life sentence not cruel and unusual punishment when
imposed on 21 year old convicted of first degree murder]; People
v. Edwards (2019) 34 Cal.App.5th 183, 190–192 [95 year sentence
for violent sexual assaults and robbery by a 19 year old was
constitutional]; People v. Argeta (2012) 210 Cal.App.4th 1478,
1482 [life sentence imposed on 18 year old for first degree murder
not cruel and unusual under federal and state Constitutions].)
19
F
Diaz maintains the trial court abused its discretion in
failing to strike his prior 2005 conviction for robbery. Our
standard of review is deferential, as Diaz concedes. Diaz had “an
extensive criminal history,” which included “sustained juvenile
petitions for assault, vehicle theft, receiving stolen property, and
[grand theft]. He has also incurred adult convictions for
narcotics, burglary, hit and run, theft, possession of a firearm
and driving a vehicle without a valid license.” The court reviewed
Diaz’s record and concluded that, from the time he was a juvenile
through to his murder of Garcia, “the defendant has continuously
suffered convictions.” The court did not abuse its discretion.
G
Diaz argues that, at sentencing, no one involved knew
about two new and significant developments affecting sentencing:
the Supreme Court decision in Tirado and SB 81.
Diaz’s attorney filed her sentencing brief on February 22,
2022. The brief did not mention SB 81 or Tirado.
The prosecution did not file a sentencing brief.
At the sentencing hearing on March 8, 2022, the prosecutor
told the court, “I will admit that I am not the best at sentencing
. . . .” The court stated “25 years to life times two . . . plus the
12022.53 would make 75 years to life. The court at that point
would stay the 12022.5 as well as the 667(c) and just make it a
straight 75 years to life.” The prosecutor said, “Understood.”
Diaz’s counsel stated her constitutional opposition to the
sentence. The court responded the punishment was
constitutional. The court stated it would stay the “12022.5
allegation of five years, so that’s imposed and stayed.” The court
also stayed the section 667(a)(1) allegation.
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At no point was there any mention of SB 81 or Tirado.
Each development had become effective about two months before
Diaz’s sentencing. Both new developments were potentially
pertinent to the sentencing, as we explain.
SB 81 amended section 1385 to add subdivision (c), which
has courts dismiss enhancements if doing so would further justice
and is not prohibited.
Tirado held that the gun enhancement statute that added
25 years to life to Diaz’s term gave trial courts the discretion to
impose lesser uncharged enhancements of either 10 or 20 years.
(Tirado, supra, 12 Cal.5th at pp. 694–702.)
The record offers no sign that the trial court was aware of
these new legal developments. No party alerted the court to
them.
On appeal, the prosecution asserts “it must be presumed”
the court had “full knowledge of Senate Bill 81.” It likewise
claims the trial court was knowledgeable about the discretion
granted to it by the decision in Tirado.
The obvious reading of the record is that the busy actors in
this case had not yet learned of the new developments.
Both developments—SB 81 as well as Tirado—resulted
from efforts by the California Legislature to adjust criminal
sentencing in light of evolving public standards about
appropriate incarceration. The relevant statutes were acts of
legislative mercy and policy measures addressing the costs of
incarceration. (See Tirado, supra, 12 Cal.5th at pp. 701–702.) A
reasonable concomitant of legislative intent would be a concern
for judicial awareness of these fresh developments.
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DISPOSITION
We remand the case to the trial court for the limited
purpose of evaluating the proper application of SB 81 and Tirado,
if any, to this case. In all other respects, we affirm.
WILEY, J.
We concur:
STRATTON, P. J.
GRIMES, J.
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