Filed 8/2/21 P. v. Diaz CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C092548
Plaintiff and Respondent, (Super. Ct. No. 06F00542)
v.
HUMBERTO DIAZ,
Defendant and Appellant.
Defendant, Humberto Diaz, appeals the trial court’s denial of his petition for
resentencing under Penal Code1 section 1170.95, enacted as part of Senate Bill No. 1437
(Stats. 2018, ch. 1015). He contends his conviction for attempted murder as an aider and
abettor on a natural and probable consequences theory was eligible for relief under
section 1170.95; and, if the conviction is not eligible for relief, then section 1170.95
violates equal protection principles. We affirm.
1 Undesignated statutory references are to the Penal Code.
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BACKGROUND
In 2007, a jury found defendant guilty of three counts of attempted murder arising
out of a gang related shooting. The trial court sentenced defendant to an aggregate term
of 18 years four months, plus 50 years to life.2 On appeal, we affirmed defendant’s
conviction. (People v. Diaz (Oct. 20, 2009, C057586) [nonpub. opn.].)
In 2019, defendant filed a section 1170.95 petition for resentencing “seeking to
vacate [his] conviction for attempted murder.” In the trial court, he argued that section
1170.95 applied to attempted murder, but did not make an equal protection claim. The
trial court denied the petition on the grounds that under the plain language of section
1170.95, defendant was not eligible for relief for his attempted murder convictions.
DISCUSSION
Defendant contends, as a person convicted as an aider and abettor on a theory of
natural and probable consequences, he can seek relief under section 1170.95. Defendant
argues attempted murder comes within the purview of Senate Bill No. 1437 (2017-2018
Reg. Sess.), as demonstrated by the legislative history and the ameliorative legislative
purpose of the bill. He also argues excluding attempted murder from the statute violates
his right to equal protection. We disagree.
As a preliminary matter, our Supreme Court recently addressed the appropriate
procedure for a trial court to follow when a section 1170.95 petition is filed. It explained
“petitioners are entitled to the appointment of counsel upon the filing of a facially
sufficient petition (see § 1170.95, subds. (b), (c)) and that only after the appointment of
counsel and the opportunity for briefing may the superior court consider the record of
conviction to determine whether ‘the petitioner makes a prima facie showing that he or
2 Defendant indicates he was sentenced to a determinate term of 30 years and an
indeterminate term of 25 years to life, citing to the portion of the record sentencing the
codefendant.
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she is entitled to relief.’ (§ 1170.95, subd. (c).)” (People v. Lewis (July 26, 2021,
S260598) __ Cal.5th __ [pp. 1-2].) Here, defendant’s resentencing petition expressly
stated that he was seeking resentencing under section 1170.95 for his attempted murder
conviction and an order to vacate that conviction. As we explain post, individuals
convicted of attempted murder are not eligible for relief under section 1170.95. Thus,
defendant’s petition was not facially sufficient and no right to counsel arose. It
nonetheless appears that the trial court appointed counsel for defendant and counsel filed
a brief on defendant’s behalf.
Turning to the merits of defendant’s argument, Senate Bill No. 1437 was enacted
to “amend the felony murder rule and the natural and probable consequences doctrine,
. . . 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(f).) The
bill amended section 188 to provide: “Except as stated in subdivision (e) of [s]ection
189, in order to be convicted of murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based solely on his or her
participation in a crime.” (Stats. 2018, ch. 1015, § 2.) Section 189, subdivision (e), now
provides that a participant in the perpetration or attempted perpetration of a felony
specified in subdivision (a) in which death occurs is liable for murder only if one of the
following is proven: “(1) The person was the actual killer. [¶] (2) The person was not
the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted the actual killer in the commission of murder in
the first degree. [¶] (3) The person was a major participant in the underlying felony and
acted with reckless indifference to human life, as described in subdivision (d) of [s]ection
190.2.”
Senate Bill No. 1437 also added section 1170.95, which applies these changes
retroactively by permitting qualifying individuals who were “convicted of felony murder
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or murder under a natural and probable consequences theory [to] file a petition with the
court that sentenced the petitioner to have the petitioner’s murder conviction vacated and
to be resentenced on any remaining counts.” (§ 1170.95, subd. (a).)
The trial court properly found defendant ineligible for relief because his
conviction was for attempted murder. Section 1170.95 does not apply to attempted
murder convictions. (People v. Larios (2019) 42 Cal.App.5th 956, 970 [“section 1170.95
is limited to certain murder convictions and excludes all other convictions, including a
conviction for attempted murder”], review granted Feb. 26, 2020, S259983.)
Defendant’s arguments that section 1170.95 should be construed to apply to
attempted murder are unconvincing. There is nothing in the language of the bill,
resulting statutory language, or the legislative history indicating the Legislature intended
to allow individuals convicted of attempted murder to petition for relief under
section 1170.95. (People v. Lopez (2019) 38 Cal.App.5th 1087, review granted Nov. 13,
2019, S258175; see People v. Medrano (2019) 42 Cal.App.5th 1001, review granted Mar.
11, 2020, S259948.) Indeed, attempted murder requires the intent to kill and the
commission of a direct but ineffectual act toward accomplishing the intended killing.
(People v. Smith (2005) 37 Cal.4th 733, 739.) Those who harbor an intent to kill and take
a direct step toward the commission of that killing are not the less culpable petitioners
section 1170.95 was designed to benefit. (See § 189, subd. (e)(2).) Thus, the statutory
language affirmatively demonstrates those convicted of attempted murder are excluded
from the scope of section 1170.95 relief.
Moreover, the Legislature’s decision not to include attempted murder does not
violate equal protection because “those charged with, or found guilty of, murder are, by
definition, not similarly situated with individuals who face other, less serious charges.
[¶] . . . The Legislature is permitted to treat these two groups of criminals differently.”
(People v. Lopez, supra, 38 Cal.App.5th at pp. 1109-1110.) “And there is a rational basis
for the Legislature’s decision to grant relief pursuant to section 1170.95 only to murder
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convictions and exclude attempted murder convictions based on judicial economy and the
financial costs associated with reopening both final murder and final attempted murder
convictions.” (People v. Medrano, supra, 42 Cal.App.5th at p. 1018.)
Defendant’s conviction for attempted murder is not eligible for relief under
section 1170.95.
DISPOSITION
The trial court’s order is affirmed.
/s/
Robie, J.
We concur:
/s/
Raye, P. J.
/s/
Duarte, J.
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