People v. Diaz CA3

Filed 8/2/21 P. v. Diaz CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C092548

Plaintiff and Respondent, (Super. Ct. No. 06F00542)

v.

HUMBERTO DIAZ,

Defendant and Appellant.

Defendant, Humberto Diaz, appeals the trial court’s denial of his petition for resentencing under Penal Code1 section 1170.95, enacted as part of Senate Bill No. 1437 (Stats. 2018, ch. 1015). He contends his conviction for attempted murder as an aider and abettor on a natural and probable consequences theory was eligible for relief under section 1170.95; and, if the conviction is not eligible for relief, then section 1170.95 violates equal protection principles. We affirm.

1 Undesignated statutory references are to the Penal Code.

1

BACKGROUND In 2007, a jury found defendant guilty of three counts of attempted murder arising out of a gang related shooting. The trial court sentenced defendant to an aggregate term of 18 years four months, plus 50 years to life.2 On appeal, we affirmed defendant’s conviction. (People v. Diaz (Oct. 20, 2009, C057586) [nonpub. opn.].) In 2019, defendant filed a section 1170.95 petition for resentencing “seeking to vacate [his] conviction for attempted murder.” In the trial court, he argued that section 1170.95 applied to attempted murder, but did not make an equal protection claim. The trial court denied the petition on the grounds that under the plain language of section 1170.95, defendant was not eligible for relief for his attempted murder convictions. DISCUSSION Defendant contends, as a person convicted as an aider and abettor on a theory of natural and probable consequences, he can seek relief under section 1170.95. Defendant argues attempted murder comes within the purview of Senate Bill No. 1437 (2017-2018 Reg. Sess.), as demonstrated by the legislative history and the ameliorative legislative purpose of the bill. He also argues excluding attempted murder from the statute violates his right to equal protection. We disagree. As a preliminary matter, our Supreme Court recently addressed the appropriate procedure for a trial court to follow when a section 1170.95 petition is filed. It explained “petitioners are entitled to the appointment of counsel upon the filing of a facially sufficient petition (see § 1170.95, subds. (b), (c)) and that only after the appointment of counsel and the opportunity for briefing may the superior court consider the record of conviction to determine whether ‘the petitioner makes a prima facie showing that he or