People v. Diego CA2/5

Filed 4/21/21 P. v. Diego CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B303304

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. v. YA000719-01)

PEDRO ALBERTO DIEGO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Hector M. Guzman, Judge. Affirmed. Lynda A. Romero, 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, Senior Assistant Attorney General, Charles S. Lee and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

In 1991, a jury convicted defendant and appellant Pedro Alberto Diego (defendant) on murder and attempted murder charges, among others. More recently, defendant petitioned the trial court to vacate his first degree murder conviction and both of his attempted murder convictions pursuant to Penal Code section 1170.951 and related amendments made by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437). The trial court appointed counsel for defendant and denied his petition. We consider whether the trial court correctly concluded defendant is ineligible for section 1170.95 relief as a matter of law, and this reduces to two specific questions: (1) could the jury have found him guilty of first degree murder on a natural and probable consequences theory, and (2) does section 1170.95 authorize relief not just for murder convictions but for attempted murder convictions?

I. BACKGROUND2 The Los Angeles County District Attorney charged defendant in an information with two counts of murder: the murder of Charles Long (count one) and the murder of Renee Johnson (count seven). The information alleged a multiple