People v. Sanchez CA5

Filed 6/20/22 P. v. Sanchez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F079954 Plaintiff and Respondent, (Super. Ct. No. F08902605) v.

GILBERTO DIAZ SANCHEZ, OPINION Defendant and Appellant.

THE COURT * APPEAL from an order of the Superior Court of Fresno County. Alan M. Simpson, Judge. Nuttall & Coleman and Roger T. Nuttall for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Poochigian, J. and Franson, J.

Gilberto Diaz Sanchez (Sanchez) appeals following the denial of his petitions for resentencing under the then applicable statute, Penal Code1 former section 1170.95 (Stats. 2018, ch. 1015, § 4). The parties agree that the trial court erred in making certain factual findings and thus should not have denied Sanchez’s petitions at the prima facie stage of the statutory proceedings. Upon review of the record and arguments, we agree and therefore vacate the trial court’s order and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND An information was filed on June 27, 2008, charging Sanchez with murdering three people while engaged in the crimes of kidnapping and robbery. Sanchez went to trial and was ultimately found guilty of three counts of second degree murder, one count of attempted second degree murder, four counts of kidnapping, and various related enhancements. In our prior resolution of Sanchez’s direct appeal, we recited the factual basis for the case and Sanchez’s defense as well as the core dispute regarding Sanchez’s convictions for second degree murder. (People v. Sanchez (June 25, 2012, F058796) [nonpub. opn.].) On that later point, this court noted that Sanchez’s convictions necessarily turned on an aider and abettor theory of liability and that there was substantial evidence supporting the jury’s verdict. On July 5, 2019, Sanchez filed a petition for resentencing pursuant to former section 1170.95. On July 17, 2019, a second petition, filed by counsel, was also submitted. Both petitions acknowledged Sanchez’s conviction arose under an aider and abettor theory, in part because Sanchez was not the actual shooter, but both argued the new law required a showing that Sanchez was the actual killer, had an intent to kill, or acted as a major participant with reckless indifference to human life. Sanchez argued he made a prima facie showing of eligibility.