People v. Diaz CA3

Filed 2/7/22 P. v. Diaz CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. OPINION ON TRANSFER

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. In an unpublished opinion, we affirmed the order. (People v. Diaz (Aug. 2, 2021, C092548 [nonpub. opn.].) The Supreme Court granted

1 Undesignated section references are to the Penal Code.

1

review and transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 775. Upon reconsideration, we agree with defendant he is entitled to resentencing on his attempted murder conviction. Accordingly, we will reverse and remand with instructions to the trial court to appoint counsel for defendant and issue an order to show cause for further proceedings under section 1170.95.

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 General Statutory Background Senate Bill No. 1437 (2017-2018 Reg. Sess.) amended “the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with