People v. Diaz CA6

Filed 5/8/25 P. v. Diaz CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H051811 (Monterey County Plaintiff and Respondent, Super. Ct. No. 22CR001136)

v.

XAVIER MIKO DIAZ,

Defendant and Appellant.

Defendant Xavier Miko Diaz appeals from a judgment entered after pleading no contest to attempted murder and admitting firearm and great bodily injury enhancement allegations. Appointed counsel for Diaz filed an opening brief which provides the procedural and factual background of the case but raises no legal challenge to the disposition. Counsel asks this court to conduct an independent review of the record to determine whether there are any arguable issues. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).) Diaz was advised of the right to file written arguments on his own behalf but has not responded. Finding no arguable error that would result in a disposition more favorable to Diaz, we affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND A. Procedural background On November 8, 2023, the Monterey County District Attorney filed an amended information charging Diaz with two counts of attempted murder (Pen. Code,1 §§ 187, subd. (a), 664; counts 1, 4); one count of assault with a semiautomatic firearm (§ 245, subd. (b); count 2); and one count of assault with a deadly weapon (§ 245, subd. (a)(1); count 3). The amended information further alleged that, as to counts 2, 3, and 4, Diaz personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)) and caused great bodily injury (§ 12022.7, subd. (a)). Diaz pleaded no contest to count 4 and admitted the associated firearm and great bodily injury enhancements in exchange for a state prison sentence of between 18 and 22 years. On January 31, 2024, the trial court sentenced Diaz to a total term of 20 years in state prison, consisting of the middle term of seven years on count 4 (§§ 187, subd. (a), 664), with an additional three years for the great bodily injury enhancement (§ 12022.7, subd. (a)) and 10 years for the firearm enhancement (§ 12022.53, subd. (b)). On the People’s motion, the trial court dismissed the remaining counts and enhancements. The court awarded Diaz a total of 837 days of presentence custody credits, consisting of 728 days of custody credits plus 109 days of conduct credits pursuant to section 2933.1. In addition, the court imposed a $1,000 restitution fund fine (§ 1202.4, subd. (b)), an additional $1,000 parole revocation fund fine (suspended pending successful completion of parole), a $40 court operations assessment (§ 1465.8, subd. (a)(1)), a $30 conviction assessment (Gov. Code, § 70373), and victim restitution in an amount to be determined.