Filed 10/7/22 P. v. Diaz CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080762
Plaintiff and Respondent,
v. (Super. Ct. No. INF058714)
CARLOS GREGORY DIAZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Riverside County,
Samuel Diaz, Jr., Judge. Affirmed.
Richard Schwartzberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Carlos Gregory Diaz appeals the order denying his petition under Penal
Code section 1172.6 for resentencing on his conviction of voluntary
manslaughter. Appointed counsel has raised no claims of error and invited
us to review the record independently for any reversible error. We have done
so, found none, and therefore affirm.
BACKGROUND
Diaz shot and killed a man during an argument. The People charged
him with willful, deliberate, and premeditated murder (Pen. Code, § 187,
subd. (a); subsequent section references are to this code) and alleged that in
committing the murder he had personally and intentionally discharged a
firearm causing death (§ 12022.53, subd. (d)). The People also charged two
one-year enhancements for service of prior prison terms. (Former § 667.5,
subd. (b), as amended by Prop. 83, § 9.) A jury found Diaz guilty of murder
and found the firearm enhancement allegation true. On Diaz’s motion for a
new trial, the court reduced the conviction to voluntary manslaughter (§ 192,
subd. (a)) and substituted a firearm enhancement that applies to
manslaughter (§ 12022.5, subd. (a)). (See § 1181, subd. 6.) The court then
sentenced Diaz to prison for an aggregate term of 23 years.
In February 2022, after the Legislature amended the murder statutes
to narrow the scope of accomplice liability for felony murder and to eliminate
the natural and probable consequences theory of murder liability, Diaz filed a
petition for relief under former section 1170.95, which was later renumbered
section 1172.6 without substantive change (Stats. 2022, ch. 58, § 10, eff. June
30, 2022). Section 1172.6 authorizes a person who was convicted of
manslaughter after having been charged with murder in an accusatory
pleading that allowed the prosecution to proceed under a theory of felony
murder or natural and probable consequences to petition the sentencing court
to vacate the conviction and to resentence the petitioner. (§ 1172.6, subd.
(a).) Diaz asked the court to resentence him on the manslaughter conviction
and to strike or dismiss the one-year enhancements for service of the prior
prison terms. He also asked the court to appoint counsel to represent him on
the petition.
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A deputy district attorney and counsel for Diaz appeared at the hearing
on the petition. The deputy district attorney urged the trial court to deny the
petition because Diaz was the sole perpetrator of a murder in which he shot
the victim, and no instructions on aiding and abetting, natural and probable
consequences, or felony murder were given to the jury. Diaz’s counsel agreed
no such instructions had been given. The court denied the petition.
DISCUSSION
Diaz has appealed the order denying the section 1172.6 petition. (See
§ 1237, subd. (b) [appeal lies from postjudgment order affecting party’s
substantial rights].) As noted earlier, his appointed counsel filed a brief
raising no claims of error and asking us to review the record independently
for reversible error. (See People v. Wende (1979) 25 Cal.3d 436, 441 (Wende)
[appellate court must “conduct a review of the entire record whenever
appointed counsel submits a brief which raises no specific issues”].) Counsel
suggested as a potential issue, “Did the trial court err in finding, based upon
counsels’ offers, appellant was ineligible for re-sentencing pursuant to Penal
Code section 1172.6?” (Italics and some initial capitalization omitted.) (See
Anders v. California (1967) 386 U.S. 738, 744 (Anders) [appointed counsel
who raises no claims of error must file a “brief referring to anything in the
record that might arguably support the appeal”].) We advised Diaz that he
could file a supplemental brief, but he did not.
We have reviewed the entire record, as required by Anders, supra, 386
U.S. 738, and Wende, supra, 25 Cal.3d 436, and determined that there are no
grounds for reversal of the order on appeal. We have also determined that
Diaz has received competent representation on appeal.
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DISPOSITION
The order denying Diaz’s petition for resentencing under section 1172.6
is affirmed.
IRION, J.
WE CONCUR:
O’ROURKE, Acting P. J.
BUCHANAN, J.
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