People v. Haun CA2/6

Filed 1/6/23 P. v. Haun CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B307581
(Super. Ct. No. CR39521)
Plaintiff and Respondent, (Ventura County)
v.
DIANA J. HAUN,
Defendant and Appellant.
Diana J. Haun appeals the trial court’s summary denial of
her motion for resentencing relief, rendered without appointment
of counsel, pursuant to Penal Code section 1172.6 (formerly
section 1170.95).1 We conclude that the court properly denied
Haun’s motion because as an actual killer, she is ineligible for
relief pursuant to sections 1172.6 and 189 as a matter of law.
(People v. Lewis (2021) 11 Cal.5th 952, 959.)
1 All statutory references are to the Penal Code.
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FACTUAL AND PROCEDURAL HISTORY
In 1997, a jury convicted Haun of first degree willful,
premeditated, and deliberate murder of Sherri Dally, with a
financial gain special circumstance. (§§ 187, subd. (a), 189, 190.2,
subd. (a)(1).) The jury also convicted Haun of conspiracy to
commit first degree murder and kidnapping. (§§ 182, subd. (a)(1),
207.) It found that she personally used a knife during
commission of the offenses, but rejected allegations that she
personally used an axe and that the killing was committed while
lying in wait. (§§ 12022, subd. (b)(1), 190.2, subd. (a)(15).)
After hearing the penalty phase of the prosecution, the jury
returned a verdict setting Haun’s punishment as life without
possibility of parole. (§ 190.3.) The trial court then imposed this
sentence plus a consecutive one-year prison term for the personal
knife use enhancement. The court stayed sentences regarding
the remaining counts pursuant to section 654.
Haun appealed. We affirmed the judgment in an
unpublished opinion. (People v. Haun (Nov. 28, 2000, B118146).)2
On February 13, 2020, Haun, in propria persona, filed a
lengthy petition to vacate her conviction pursuant to section
1172.6. The petition contained a detailed discussion of the
evidence presented at trial and a request for appointment of
counsel. Haun asserted that the prosecution proceeded pursuant
to a theory of felony murder or her reckless indifference to human
life. (§ 189, subd. (e)(3).)
On September 3, 2020, the trial court denied Haun’s
petition without appointing counsel. The court considered the
charging document (amended indictment), jury instructions given
2 As requested by the Attorney General. we take judicial
notice of the appellate record in People v. Haun, supra, B118146.
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at trial, the jury verdicts, and our appellate opinion. The court
then ruled that Haun, as the “actual killer,” acted with “specific
intent to kill,” and “conspired with her lover to kill his wife.” In
sum, Haun stabbed the victim to death and moved her body to a
remote location. The court determined that the jury received no
instructions regarding felony murder or natural and probable
consequence murder. The judge stated: “The charging language
in the indictment coupled with the jury instructions leave no
ambiguity as to the jury’s unanimous conclusion that [Haun] was
the abductor and killer of Sherri Dally. [¶] . . . [¶] . . . Her
conviction simply does not fall within the parameters of [section
1172.6].”
Evidence of the Underlying Crimes
Haun and Michael Dally were grocery store coworkers who
had a sexual relationship. Michael was married to Sherri and
reluctant to divorce her for financial reasons.3 Haun and Michael
took a vacation to Mexico together and, for a time, shared an
apartment.
On May 6, 1996, Haun kidnapped Sherri from a Ventura
department store parking lot. Haun had purchased handcuffs, a
security badge, a blond wig, tan-colored clothing, a camping axe,
and sunglasses, among other items, with her credit cards and
personal checks. She also rented a teal-colored Nissan Altima
sedan from a vehicle rental agency. Haun, dressed in disguise,
then kidnapped Sherri from the parking lot by pretending to be a
law enforcement officer. Eyewitnesses saw Haun handcuff Sherri
and place her inside the Nissan sedan. Michael was working at
3 To ease the readers task and not from disrespect, we will
refer to Michael and Sherri Dally by their first names.
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the grocery store at the time. Later that evening, a motorist saw
Haun sitting in a Nissan sedan near the Canada Larga overpass.
A month later, Sherri’s remains were found in a ravine
near Canada Larga Road, approximately a 15-minute drive from
the department store parking lot. Forensic evidence disclosed
that she had been stabbed at least eight times, including in the
heart. An injury to her neck suggested an attempted beheading.
The medical examiner opined that Sherri died at or about the
time of her abduction. Forensic testing of the interior of the
Nissan sedan revealed bloodstains consistent with Sherri’s DNA.
Michael was the beneficiary of Sherri’s life insurance policy
and her retirement account. Days after her death, he inquired
regarding payouts from the policy and retirement account.
DISCUSSION
Haun contends that the trial court erred by summarily
denying her petition without appointing counsel. She argues in
part that the jury may have imputed malice based on her aiding
and abetting and lying in wait. (People v. Maldonado (2022) 86
Cal.App.5th 43, 50-57.) The Attorney General agrees but asserts
that the error is harmless because Haun is ineligible for relief as
a matter of law.
A person is entitled to resentencing relief pursuant to
section 1172.6 if (1) “[a] complaint, information, or indictment
was filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder [or] murder under the
natural and probable consequences doctrine,” (2) the petitioner
“was convicted of murder,” and (3) the petitioner “could not
presently be convicted of murder . . . because of changes to
Section 188 or 189 made effective January 1, 2019.” (Id., subd.
(a)(1)-(3).) In January 2019, our Legislature amended section 188
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to provide that “in order to be convicted of murder, a principal in
a crime shall act with malice aforethought” and that “[m]alice
shall not be imputed to a person based solely on his . . .
participation in a crime.” (Id., subd. (a)(3), as amended by Stats.
2018, ch. 1015, § 2.) The amendment ensures 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. (People v. Lewis, supra, 11 Cal.5th 952, 959.)
Section 1172.6 provides a procedure for convicted murderers who
could not be convicted under the amended law to retroactively
seek relief. (Lewis, at p. 959.)
Haun filed a resentencing petition and requested the
appointment of counsel. The petition complied with the
provisions of section 1172.6 and was “facially sufficient.” (People
v. Lewis, supra, 11 Cal.5th 952, 957.) Accordingly, the trial court
erred by summarily denying the petition. (Ibid.)
Nevertheless, the deprivation of Haun’s statutory right to
counsel is harmless error pursuant to People v. Watson (1956) 46
Cal.2d 818, 836. (People v. Lewis, supra, 11 Cal.5th 952, 974.)
“[A] petitioner ‘whose petition is denied before an order to show
cause issues has the burden of showing “it is reasonably probable
that if [he or she] had been afforded assistance of counsel his [or
her] petition would not have been summarily denied without an
evidentiary hearing.” ’ ” (Ibid.)
The trial court may consider the petitioner’s record of
conviction, including the court’s own documents, in assessing
whether a petitioner has made a prima facie case for relief
pursuant to section 1172.6. (People v. Lewis, supra, 11 Cal.5th
952, 972.) Haun has not established that if she had been
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provided the assistance of counsel, the court would not have
summarily denied her petition. At trial, the court did not
instruct regarding felony murder or the natural and probable
consequences doctrines. (People v. Mancilla (2021) 67
Cal.App.5th 854, 866-867 [petitioner not entitled to relief as a
matter of law where jury not instructed regarding felony-murder
theory or natural and probable consequences theory].) It did
instruct regarding malice aforethought, personal use of a deadly
weapon, and premeditated, deliberate murder by Haun
personally. Haun was “the actual killer” of Sherri Dally and was
also convicted of conspiracy to commit first degree murder.
(People v. Lewis, supra, 11 Cal.5th 952, 959.) As such, error in
not appointing counsel is harmless.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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Patricia M. Murphy, Judge
Superior Court County of Ventura
______________________________
Katera E. Rutledge for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle, Amanda V. Lopez and Viet H.
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
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