People v. Diaz CA2/2

Filed 8/10/21 P. v. Diaz CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B305600

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA128559) v.

JUAN CARLOS DIAZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Drew E. Edwards, Judge. Reversed and remanded with directions.

Diane E. Berley, 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, Scott A. Taryle and Lindsay Boyd, Deputy Attorneys General, for Plaintiff and Respondent. ______________________________

In 1997, defendant and appellant Juan Carlos Diaz was convicted by a jury of second degree murder (Pen. Code, § 187)1 and sentenced to 15 years to life in state prison. In 2019, defendant filed a petition for resentencing pursuant to section 1170.95. After appointing counsel to represent defendant and considering briefing by both parties, the trial court denied defendant’s petition without issuing an order to show cause and holding an evidentiary hearing pursuant to section 1170.95, subdivision (d). Defendant timely filed a notice of appeal. He argues that because he established a prima facie case that he is potentially eligible for resentencing relief, the trial court should have issued an order to show cause and held an evidentiary hearing. The People agree. In accordance with the parties’ briefs, we reverse and remand the matter for the trial court to issue an order to show cause and to hold an evidentiary hearing pursuant to section 1170.95, subdivision (d). FACTUAL BACKGROUND On October 18, 1995, defendant, Julio Alexander Ruiz (Ruiz), and Hugo Rene Lopez drove into rival gang territory. The three men then went into an apartment building and Ruiz fired three or four shots at the victim, killing him. After the shooting, Ruiz said that he killed the victim to avenge the killing of a fellow gang member. (People v. Diaz (May 26, 1999, B113486) [nonpub. opn.].)