Filed 6/20/22 P. v. Sanchez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079954
Plaintiff and Respondent,
(Super. Ct. No. F08902605)
v.
GILBERTO DIAZ SANCHEZ, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from an order of the Superior Court of Fresno County. Alan M.
Simpson, Judge.
Nuttall & Coleman and Roger T. Nuttall for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Poochigian, J. and Franson, J.
Gilberto Diaz Sanchez (Sanchez) appeals following the denial of his petitions for
resentencing under the then applicable statute, Penal Code1 former section 1170.95
(Stats. 2018, ch. 1015, § 4). The parties agree that the trial court erred in making certain
factual findings and thus should not have denied Sanchez’s petitions at the prima facie
stage of the statutory proceedings. Upon review of the record and arguments, we agree
and therefore vacate the trial court’s order and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
An information was filed on June 27, 2008, charging Sanchez with murdering
three people while engaged in the crimes of kidnapping and robbery. Sanchez went to
trial and was ultimately found guilty of three counts of second degree murder, one count
of attempted second degree murder, four counts of kidnapping, and various related
enhancements.
In our prior resolution of Sanchez’s direct appeal, we recited the factual basis for
the case and Sanchez’s defense as well as the core dispute regarding Sanchez’s
convictions for second degree murder. (People v. Sanchez (June 25, 2012, F058796)
[nonpub. opn.].) On that later point, this court noted that Sanchez’s convictions
necessarily turned on an aider and abettor theory of liability and that there was substantial
evidence supporting the jury’s verdict.
On July 5, 2019, Sanchez filed a petition for resentencing pursuant to former
section 1170.95. On July 17, 2019, a second petition, filed by counsel, was also
submitted. Both petitions acknowledged Sanchez’s conviction arose under an aider and
abettor theory, in part because Sanchez was not the actual shooter, but both argued the
new law required a showing that Sanchez was the actual killer, had an intent to kill, or
acted as a major participant with reckless indifference to human life. Sanchez argued he
made a prima facie showing of eligibility.
1 All further statutory references are to the Penal Code.
2.
The People opposed. Relying on the fact that the jury did not convict Sanchez of
first degree murder under the felony-murder instructions provided, the People argued that
the convictions the jury did reach did not rely on a felony-murder theory. The People
conceded that the jury had been instructed on the natural and probable consequences
doctrine regarding the second degree murder charges but argued this court’s analysis of
the substantial evidence supporting Sanchez’s conviction demonstrated such a theory was
not relied upon for the conviction.
The trial court ultimately denied Sanchez’s petitions. The court determined
Sanchez had “failed to make a prima facie showing that he falls within the provisions of
Penal Code [former] section 1170.95. The condition set out at Penal Code [former
section] 1170.95[, subdivision ](a) (3) does not apply. The convictions as an aider and
abettor to 2nd degree murder and attempted 2nd degree murder were supported by
overwhelming evidence. Under today’s law petitioner could still be convicted.”
This appeal timely followed.
DISCUSSION
As it currently stands and relevant to this case, section 1170.95, subdivision (a)
provides:
“(a) A person convicted of felony murder or murder under the natural and
probable consequences doctrine or other theory under which malice is imputed to a
person based solely on that person’s participation in a crime, attempted murder under the
natural and probable consequences doctrine, or manslaughter may file a petition with the
court that sentenced the petitioner to have the petitioner’s murder, attempted murder, or
manslaughter conviction vacated and to be resentenced on any remaining counts when all
of the following conditions apply:
“(1) A complaint, information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony murder, murder under the
natural and probable consequences doctrine or other theory under which malice is
3.
imputed to a person based solely on that person’s participation in a crime, or attempted
murder under the natural and probable consequences doctrine.
“(2) The petitioner was convicted of murder, attempted murder, or manslaughter
following a trial or accepted a plea offer in lieu of a trial at which the petitioner could
have been convicted of murder or attempted murder.
“(3) The petitioner could not presently be convicted of murder or attempted
murder because of changes to Section 188 or 189 made effective January 1, 2019.”
Section 1170.95, subdivision (c) explains, “After the parties have had an
opportunity to submit briefings, the court shall hold a hearing to determine whether the
petitioner has made a prima facie case for relief. If the petitioner makes a prima facie
showing that the petitioner is entitled to relief, the court shall issue an order to show
cause .…” (Stats. 2021, ch. 551, § 2.)
The dispute in this case arises in the context of section 1170.95, subdivision (c)
and its requirement that the court determine whether Sanchez “is entitled to relief.” The
process for making this determination is similar to habeas corpus proceedings. (People v.
Lewis (2021) 11 Cal.5th 952, 971.) Thus, “when assessing the prima facie showing, the
trial court should assume all facts stated in the section 1170.95 petition are true.
[Citation.] The trial court should not evaluate the credibility of the petition’s assertions,
but it need not credit factual assertions that are untrue as a matter of law—for example, a
petitioner’s assertion that a particular conviction is eligible for relief where the crime is
not listed in subdivision (a) of section 1170.95 as eligible for resentencing. Just as in
habeas corpus, if the record ‘contain[s] facts refuting the allegations made in the petition
... the court is justified in making a credibility determination adverse to the petitioner.’
[Citation.] However, this authority to make determinations without conducting an
evidentiary hearing pursuant to section 1170.95, subd[ivision] (d) is limited to readily
ascertainable facts from the record (such as the crime of conviction), rather than
factfinding involving the weighing of evidence or the exercise of discretion (such as
4.
determining whether the petitioner showed reckless indifference to human life in the
commission of the crime).” (People v. Drayton (2020) 47 Cal.App.5th 965, 980, second
bracketed insertion in original, abrogated on another ground in Lewis, at p. 963.)
In this case, the parties agree the trial court erred in determining Sanchez had not
made a prima facie showing of eligibility. Upon review, this court accepts the parties’
position. This court notes that its prior opinion found sufficient evidence existed for the
jury to convict Sanchez under a direct aiding and abetting theory and noted the parties
focused upon such a position at trial. (People v. Sanchez, supra, F058796.) This finding
constitutes the law of the case and is binding upon the trial court. (People v. Jurado
(2006) 38 Cal.4th 72, 94 [“Under the doctrine of the law of the case, a principle or rule
that a reviewing court states in an opinion and that is necessary to the reviewing court’s
decision must be applied throughout all later proceedings in the same case, both in the
trial court and on a later appeal.”].) However, as the People note, this finding does not
demonstrate, as a matter of law, that Sanchez was convicted under this theory. At the
prima facie stage, the court could not resolve the factual dispute as to what theory the
jury utilized and thus could not conclude Sanchez was, in fact, ineligible for resentencing.
Such a finding is only appropriate after a show cause hearing under section 1170.95,
subdivision (d)(3).
DISPOSITION
The August 27, 2019 order denying Sanchez’s petitions for resentencing is
vacated. The matter is remanded to the superior court with directions to issue an order to
show cause and conduct a hearing on the petitions to determine whether to vacate
Sanchez’s murder conviction, recall his sentence, and resentence him consistent with
Penal Code section 1170.95, as amended effective January 1, 2022 (Stats. 2021, ch. 551,
§ 2).
5.