Filed 8/10/21 P. v. Diaz CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B305600
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA128559)
v.
JUAN CARLOS DIAZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Drew E. Edwards, Judge. Reversed and
remanded with directions.
Diane E. Berley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Lindsay Boyd, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
In 1997, defendant and appellant Juan Carlos Diaz was
convicted by a jury of second degree murder (Pen. Code, § 187)1
and sentenced to 15 years to life in state prison.
In 2019, defendant filed a petition for resentencing
pursuant to section 1170.95. After appointing counsel to
represent defendant and considering briefing by both parties, the
trial court denied defendant’s petition without issuing an order to
show cause and holding an evidentiary hearing pursuant to
section 1170.95, subdivision (d).
Defendant timely filed a notice of appeal. He argues that
because he established a prima facie case that he is potentially
eligible for resentencing relief, the trial court should have issued
an order to show cause and held an evidentiary hearing. The
People agree.
In accordance with the parties’ briefs, we reverse and
remand the matter for the trial court to issue an order to show
cause and to hold an evidentiary hearing pursuant to section
1170.95, subdivision (d).
FACTUAL BACKGROUND
On October 18, 1995, defendant, Julio Alexander Ruiz
(Ruiz), and Hugo Rene Lopez drove into rival gang territory. The
three men then went into an apartment building and Ruiz fired
three or four shots at the victim, killing him. After the shooting,
Ruiz said that he killed the victim to avenge the killing of a
fellow gang member. (People v. Diaz (May 26, 1999, B113486)
[nonpub. opn.].)
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
The Los Angeles District Attorney’s Office filed an
information charging defendant with one count of murder and
alleged that defendant personally used a firearm2 (§ 12022.5) and
that a principal was armed with a firearm during the commission
of the offense (§ 12022, subd. (a)(1)).
The trial court instructed the jury that it could find
defendant guilty of murder either as an aider and abettor to
murder or as an aider and abettor to assault with a firearm that
resulted in murder under the natural and probable consequences
doctrine.
The jury convicted defendant of second degree murder.
Defendant appealed, and on May 26, 1999, we affirmed the
judgment. (People v. Diaz, supra, B113486.)
PROCEDURAL BACKGROUND
On February 22, 2019, defendant filed a petition to be
resentenced pursuant to section 1170.95. He averred that
because he had been convicted of murder under either a felony
murder theory or the natural and probable consequences
doctrine, he was entitled to resentencing relief. The trial court
appointed counsel and set a briefing schedule.
On March 27, 2019, the People filed a response to
defendant’s petition.
On April 24, 2019, the trial court denied defendant’s
petition. In so ruling, the trial court stated: “The appellate
opinion affirming the petitioner’s conviction and sentence reflects
that the petitioner was convicted as an aider and abettor to
2 After the close of evidence, the trial court granted
defendant’s motion to acquit on the personal use enhancement.
3
murder and not on a theory of felony murder of any degree, or a
theory of natural and probable consequences.”
On May 10, 2019, defendant filed a motion to reconsider his
petition for rehearing on the grounds that the trial court had
denied his section 1170.95 petition without reviewing his reply
brief. The trial court granted that motion.
On January 29, 2020, after reviewing defendant’s reply
brief, the trial court denied defendant’s petition for resentencing
on the grounds that “the record of conviction in this case
including the appellate opinion affirming petitioner’s conviction
and sentence reflects that the petitioner was a major participant
in the murder at issue in this case who acted with reckless
indifference to human life pursuant to Penal Code section
190.2(a)(17). The petitioner is therefore ineligible for relief
pursuant to Penal Code section 1170.95.”
Defendant’s timely appeal ensued.
DISCUSSION
I. Standard of Review
We review the trial court’s order de novo. (See Martinez v.
Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018
[application of law to undisputed facts]; A.S. v. Miller (2019) 34
Cal.App.5th 284, 290 [statutory interpretation].)
II. Relevant Law
Section 1170.95 provides a mechanism whereby people
“who believe they were convicted of murder for an act that no
longer qualifies as murder following the crime’s redefinition in
2019[] may seek vacatur of their murder conviction and
resentencing by filing a petition in the trial court.” (People v.
Drayton (2020) 47 Cal.App.5th 965, 973 (Drayton); see also People
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v. Lewis (July 26, 2021, S260598) ___ Cal.5th ___ [2021
Cal.LEXIS 5258] (Lewis).)
In order to obtain resentencing relief, the petitioner must
proceed through section 1170.95’s separate steps. (Lewis, supra,
___ Cal.5th ___ [2021 Cal.LEXIS 5258, at pp. *6–*7].) First, a
defendant must file a facially sufficient section 1170.95 petition.
The petitioner must aver that he is eligible for relief because
(1) an accusatory pleading was filed against him allowing the
prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine; (2) he was
convicted of first or second degree murder; and (3) he could not be
convicted of murder as a result of the recent amendments to
sections 188 and 189. (§ 1170.95, subds. (a)(1)-(3), (b)(1)(A).)
“Where the petition complies with [these] requirements,
then the court proceeds to subdivision (c) to assess whether the
petitioner has made ‘a prima facie showing’ for relief. [Citation.]”
(Lewis, supra, ___ Cal.5th ___ [2021 Cal.LEXIS 5258, at p. *7].)
“If the trial court determines that a prima facie showing for relief
has been made, the trial court issues an order to show cause, and
then must hold a hearing ‘to determine whether to vacate the
murder conviction and to recall the sentence and resentence the
petitioner on any remaining counts in the same manner as if the
petitioner had not . . . previously been sentenced, provided that
the new sentence, if any, is not greater than the initial sentence.’
[Citation.]” (Ibid.) At that hearing, “the burden of proof . . .
shift[s] to the prosecution to prove, beyond a reasonable doubt,
that the petitioner is ineligible for resentencing.” (Drayton,
supra, 47 Cal.App.5th at p. 981; see also § 1170.95, subd. (d)(1)-
(3).)
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III. Defendant is entitled to an order to show cause evidentiary
hearing
As the parties agree, defendant made a prima facie
showing of eligibility. After all, he filed a section 1170.95 petition
averring that (1) an information had been filed against him
allowing the prosecution to proceed under a theory of murder
under the felony murder rule or the natural and probable
consequences doctrine; (2) he was convicted of second degree
murder; and (3) he could not now be convicted of murder
following the amendments to sections 188 and 189. And, after an
examination of the record and briefing by both parties, it is
evident that (1) defendant was charged with murder, and
(2) could have been convicted either as an aider and abettor to
murder or as an aider and abettor to assault with a firearm and
thus murder under the natural and probable consequences
doctrine. (Lewis, supra, ___ Cal.5th ___ [2021 Cal.LEXIS 5258,
at p. *32 & fn. 6].) Thus, it is not evident as a matter of law that
defendant could be convicted of murder under the recently
amended statutes. There is nothing in the record, including in
our prior opinion, that indicates that defendant was necessarily
convicted as an aider and abettor to murder as opposed to assault
with a firearm. In fact, the jury was instructed on both theories
and the prosecution argued both theories to the jury.
The trial court denied defendant’s petition on the grounds
that defendant was a major participant who acted with reckless
indifference to human life. But to have made that determination,
the trial court had to have engaged in some sort of “factfinding
involving the weighing of evidence or the exercise of discretion.”
(Drayton, supra, 47 Cal.App.5th at p. 980.) That is not permitted
at the prima facie stage of the proceedings. (Ibid.) After all, as
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set forth above, there is no conclusive evidence that defendant
acted with reckless indifference to human life. He could have
been convicted under a natural and probable consequences theory
of murder. Under these circumstances, an evidentiary hearing—
where the People bear the burden of proof beyond a reasonable
doubt—is required.3
Because defendant satisfied the prima facie stage of section
1170.95, subdivision (c), the trial court was required to set the
matter for an order to show cause, with an evidentiary hearing.
(Lewis, supra, ___ Cal.5th ___ [2021 Cal.LEXIS 5258, at pp. *7–
*8].) In so holding, “[w]e express no opinion about [defendant’s]
ultimate entitlement to relief following the hearing. (§ 1170.95,
subd. (d)(2).)” (Drayton, supra, 47 Cal.App.5th at p. 983.)
3 As the People point out in their respondent’s brief, while
“the record at present overwhelmingly supports” the fact that
defendant is not entitled to be resentenced, that finding cannot
be made until after an evidentiary hearing.
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DISPOSITION
The order denying defendant’s section 1170.95 petition is
reversed. On remand, the trial court is directed to issue an order
to show cause (§ 1170.95, subd. (c)) and to hold an evidentiary
hearing to determine whether to vacate defendant’s murder
conviction and resentence him (§ 1170.95, subd. (d)).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
HOFFSTADT
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