People v. Diaz CA2/3

Filed 12/23/20 P. v. Diaz CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B301598

Plaintiff and Respondent, Los Angeles County Super. Ct. No. BA225116 v.

JUAN ANTONIO DIAZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Terry A. Bork, Judge. Reversed and remanded.

Kathy R. Moreno, 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, Charles Lee and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent. _________________________

Juan Antonio Diaz appeals from the superior court’s denial of his petition for resentencing under Penal Code section 1170.95.1 The Attorney General agrees the court erred in denying the petition without issuing an order to show cause and proceeding to an evidentiary hearing. Accordingly, we reverse the court’s order denying Diaz’s petition and remand for further proceedings. FACTS AND PROCEDURAL BACKGROUND A jury convicted Diaz of first degree murder and attempted second degree robbery in the October 2001 shooting of Hector Quevado. (People v. Diaz (Aug. 30, 2004, B169353) [nonpub. opn.].) The jury found true allegations that Diaz committed the crimes for the benefit of a criminal street gang and that a principal personally and intentionally discharged a firearm causing Quevado’s death. (Ibid.) The trial court—the Honorable Marsha N. Revel—sentenced Diaz to a term of 50 years to life in prison. (Ibid.) On August 30, 2004, we affirmed Diaz’s conviction. (Ibid.) After Senate Bill No. 1437 (SB 1437) took effect, Diaz filed, on April 22, 2019, a petition for resentencing under section 1170.95. The petition was assigned to Department 128 of the Los Angeles Superior Court in downtown Los Angeles. The judge now assigned to that court is the Honorable Terry A. Bork. The Office of the Alternate Public Defender was appointed to represent Diaz. The District Attorney filed an opposition to the petition, Diaz’s counsel filed a reply, and the prosecution filed a surreply. Judge Bork held a hearing on the petition on September 30, 2019. Diaz was present with counsel. The court stated it had read the written submissions as well as the court of appeal’s