People v. Diaz CA2/7

Filed 10/8/25 P. v. Diaz CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B340351

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA098848-01) v.

OSCAR ROMERO DIAZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Andrew C. Kim, Judge. Reversed with directions. Jonathan Demson and Larry Pizarro, under appointments by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Viet H. Nguyen, Deputy Attorney General, for Plaintiff and Respondent.

In 2007 the People charged Oscar Romero Diaz with, among other crimes, two counts of attempted premeditated murder and alleged various firearm and gang enhancements. In 2008 Diaz pleaded no contest to two counts of attempted murder and admitted he personally used a firearm, within the meaning of Penal Code section 12022.53, subdivision (b).1 The trial court sentenced him to concurrent prison terms of 19 years. In April 2022 Diaz filed a petition for resentencing under section 1172.6, checking the appropriate boxes to establish his eligibility. The superior court appointed counsel for Diaz, the People conceded Diaz stated a prima facie case, and the court issued an order to show cause. The superior court denied Diaz’s petition. The court stated: “So the court’s understanding in this case is that Mr. Diaz’s participation in this crime was as the driver in a two-person drive-by shooting. Mr. Diaz was convicted of attempted murder. The question is:· Was Mr. Diaz an aider and abettor pursuant to the changes that were made to sections 188 and 189?” Citing two cases holding an aider and abettor who does not have the intent to kill can still under current law be convicted of second degree murder on an implied malice theory, People v. Silva (2023) 87 Cal.App.5th 632, 640, and People v. Vizcarra (2022) 84 Cal.App.5th 377, 390-392, the court found beyond a reasonable doubt Diaz was guilty of attempted murder. The court ruled: