People v. Diaz CA3

Filed 2/23/23 P. v. Diaz CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C096425

Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE- 1986-0000270) v.

SIMON LUA DIAZ,

Defendant and Appellant.

In 1987, defendant Simon Lua Diaz was convicted of two counts of first degree murder with special circumstances and sentenced to two consecutive terms of life without the possibility of parole. In February 2022, defendant filed a petition for resentencing

1

under Penal Code1 section 1172.6.2 The trial court denied the petition in June 2022, because defendant was ineligible for relief based on burglary special circumstances found true by the jury and also on the ground that the petition was procedurally barred as a successive petition. On appeal, defense counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, asking this court to review the record for error. Counsel advised defendant of his right to file a supplemental brief within 30 days from the date the opening brief was filed. Defendant did not file a supplemental brief. The California Supreme Court recently decided People v. Delgadillo (2022) 14 Cal.5th 216, holding that an appeal from the denial of postconviction relief under section 1172.6 does not implicate a constitutional right to counsel, and thus the procedures set out in Anders v. California (1967) 386 U.S. 738 and People v. Wende, supra, 25 Cal.3d 436 do not apply. (Delgadillo, at p. 366.) However, as the court did in Delgadillo, we elect to independently review the record in the interest of judicial economy. (Id. at p. 371.) Having done so, we affirm the trial court’s order. FACTUAL AND PROCEDURAL BACKGROUND A detailed recitation of the underlying facts is unnecessary for this appeal. Defendant shot Albert and Mary Borth, an elderly couple, six times each in their home and stole a rifle and a shotgun, which defendant attempted to sell. A jury found defendant guilty of two counts of first degree murder (§ 187) and found true special circumstances that defendant committed multiple murders (§ 190.2, subd. (a)(3)) in the