People v. Diaz CA2/6

Filed 6/13/25 P. v. Diaz CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B336635 (Super. Ct. No. PA059758) Plaintiff and Respondent, (Los Angeles County)

v.

STEVEN DIAZ,

Defendant and Appellant.

Steven Diaz appeals an order denying his petition for recall and resentencing filed pursuant to Penal Code section 1170, subdivision (d)(1)(A), and People v. Heard (2022) 83 Cal.App.5th 608, 634 (juvenile offender serving de facto sentence of life without parole may petition for recall and resentencing).1 We conclude that the trial court did not err by denying the recall and resentencing petition because Diaz’s sentence of 40 years to life is not the functional equivalent of life without parole. We affirm.

1 All statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL HISTORY On January 16, 2007, then 17-year-old Diaz approached and shot Cesar Rivas, as Rivas sat in the driver’s seat of his vehicle outside a local high school. Diaz was a member of the “SanFer” criminal street gang; Rivas was a member of a tagging crew. Diaz fired two gunshots through the driver’s side window, striking Rivas near his lung and spine. Diaz testified at trial that he shot Rivas because Rivas disrespected him. Diaz also stated that he had been using methamphetamine for several days prior to the shooting. A jury convicted Diaz of attempted murder and assault with a firearm. (§§ 664, 187, subd. (a), 245, subd. (a)(2).) The jury also found true allegations that the attempted murder was willful, deliberate, and premeditated; Diaz personally used and discharged a firearm and inflicted great bodily injury; and Diaz committed the crimes to benefit a criminal street gang. (§§ 12022.53, subds. (b)-(d), 12022.5, 12022.7, subd. (a), 186.22, subd. (b)(1)(C).) The trial court sentenced Diaz to 40 years to life, consisting of 15 years to life for the attempted murder conviction and 25 years to life for the firearm enhancement. The court stayed sentence for the assault conviction pursuant to section 654. On appeal, we ordered clerical corrections to the sentence but otherwise affirmed. (People v. Diaz (May 24, 2010, B218837) [nonpub. opn.].) On September 13, 2023, Diaz filed a petition for recall and resentencing pursuant to section 1170, subdivision (d)(1)(A), and People v. Heard, supra, 83 Cal.App.5th 608, 629 (juvenile offender’s sentence of 103-years-to-life imprisonment a de facto sentence of life without parole). Diaz asserted that his sentence