People v. Diego CA2/5

California Court of Appeal Jun 3, 2022 No. B303304AUnpublished

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Holding. The court held that the defendant is ineligible for relief on his murder convictions as a matter of law because he was a direct aider and abettor, but remanded the case to allow the defendant to seek relief for his attempted murder convictions under the amended Penal Code section 1170.95.

Issues

Whether the defendant is eligible for resentencing on his murder convictions under Penal Code section 1170.95.
Whether the defendant is eligible for resentencing on his attempted murder convictions following the enactment of Senate Bill No. 775.

Disposition. Vacated and remanded.

Quotations verified verbatim against the opinion

“defendant’s murder convictions are not subject to vacatur under section 1170.95 because the jury instructions given at defendant’s trial leave no doubt he was convicted of murder as a direct aider and abettor”

“SB 775, however, amends section 1170.95 to “[c]larif[y] that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural probable consequences doctrine are permitted the same relief”

Filed 6/3/22 P. v. Diego CA2/5 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

PEDRO ALBERTO DIEGO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Hector M. Guzman, Judge. Vacated and remanded. Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Charles S. Lee, Wyatt

E. Bloomfield and John Yang, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted defendant and appellant Pedro Alberto Diego (defendant) on murder and attempted murder charges, among others. Defendant petitioned the trial court to vacate his first degree murder conviction pursuant to Penal Code section 1170.95.1 The trial court appointed counsel for defendant and denied his petition. This court initially affirmed, but after passage of Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB 775), our Supreme Court granted review and returned the cause to us for further consideration. There is now no real dispute between the parties: defendant does not challenge the correctness of our prior holding that defendant’s murder convictions are not subject to vacatur under section 1170.95 and the Attorney General concedes defendant’s attempted murder convictions may qualify for section 1170.95 relief.

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 murder special circumstance (§ 190.2, subd. (a)(3)) as to

People v. Diego CA2/5

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B303304

PEDRO ALBERTO DIEGO,

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

RUBIN, P. J.

KIM, J.

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