California Court of Appeal Feb 27, 2023 No. E076440AUnpublished
Filed 2/27/23 P. v. Diaz CA4/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076440
v. (Super.Ct.No. INF1302087)
LUIS RAUL DIAZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed.
Eric S. Multhaup, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland and Charlese C. Ragland, Assistant Attorney Generals, Arlene
A. Sevidal, James M. Toohey, Lynne G. McGinnis and Susan Elizabeth Miller, Deputy
Attorney Generals, for Plaintiff and Respondent.
1
Defendant and appellant Luis Raul Diaz appeals from a trial court’s order denying
defendant’s petition for relief under Penal Code1 section 1170.95. For the reasons set
forth post, we find that defendant made a prima facie showing that he falls within the
provisions of section 1172.6, and is therefore entitled to a remand for further proceedings
In 2014, a jury convicted defendant of first degree murder and found true the
special circumstances that the murder occurred during the commission of a kidnapping
under sections 187 and 190.2, subdivision (a)(17)(B). The trial court found true that
defendant had a prior serious felony conviction under § 667, subdivision (a). Thereafter,
the trial court sentenced defendant to life without the possibility of parole for the murder,
plus five years for the prior serious felony conviction.
On January 22, 2016, after defendant appealed, we affirmed the judgment in
People v. Diaz [unpub. opn. 2016] E062324.
On September 21, 2020, defendant filed a petition for resentencing under section
1170.95. The trial court appointed counsel to represent defendant. The People filed
opposition. On January 8, 2021, the trial court summarily denied defendant’s petition.
1 All further statutory references are to the Penal Code unless otherwise specified. In addition, section 1170.95 was renumbered effective June 30, 2022, to section 1172.6. (Stats. 2022, c. 58 (A.B. 200), § 100, eff. June 30, 2022.) We will refer to the new numbering and current version in this opinion.
2
On January 14, 2021, defendant filed a timely notice of appeal from the denial of
his section 1170.95 petition. On February 4, 2021, defendant filed a second notice of
appeal. In an unpublished opinion filed on October 1, 2021, we affirmed the denial of the
petition based on the state of the law at that time.
Defendant filed a petition for review, which was granted. On October 26, 2022,
the California Supreme Court transferred the matter back to this court with instructions to
vacate our previous decision and reconsider the cause in light of People v. Strong (2022)
13 Cal.5th 698 (Strong). In Strong, the California Supreme Court found that felony
murder special-circumstance findings issued by a jury before the decisions of People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark),
which clarified the terms “major participant” and “reckless indifference to human life” in
the special-circumstance statute, do not preclude a defendant from making out a prima
facie case for resentencing of a felony-murder conviction, even if the trial evidence
would have been sufficient to support the findings under Banks and Clark.
On October 27, 2022, we vacated our previous opinion and requested that
defendant and the People file supplemental briefs. Defendant did not file a supplemental
brief. In its supplemental brief, the People concede that “[b]ased on Strong, the matter
should be reversed and remanded.” For the reasons set forth post, we will remand the
matter to the trial court for further proceedings.
3
B. FACTUAL HISTORY2
1. “DISAPPEARANCE OF THE VICTIM AND DISCOVERY OF HIS
SKELETAL REMAINS
“Destiny Ayala was the victim’s sister. She last saw the victim in July 2011. She
exchanged text messages with him in August 2011. She became concerned in early
September when she had not heard from him. She went to his house in Palm Springs but
he was not there. She filed a missing person’s report with the Palm Springs Police
Department.
“On December 19, 2011, a Riverside County Sheriff’s deputy responded to a call
that skeletal remains had been found in the area of Sky Valley. In order to access the
area, the deputy had to use a dirt road. The area where the skeletal remains were found
was remote, open desert. The remains were scattered, most likely due to animal activity.
There were two burn areas near the remains. A melted belt buckle, a fired projectile, a
live round of ammunition, and a burned T-shirt were found by the remains.
“Sergeant Deborah Gray of the Riverside County Coroner’s Office was a forensic
anthropologist trained to examine skeletal remains. She was called to the Sky Valley
area to examine the skeletal remains. She determined that all the bones found belonged
to one person. The person had been deceased between two weeks and six months. The
person was likely male, White or Hispanic, and between 20 to 23 years old.
2 The facts are taken from the unpublished opinion in case No. E062324.
4
“Riverside County Sheriff’s Investigator Martin Alfaro was the lead investigator
on the case. Based on DNA identification and dental comparison, it was determined the
remains belonged to the victim. An autopsy was performed on the victim’s remains. The
victim had a semicircular defect in his skull, which was likely the result of a bullet
wound.”
2. “ASHLEY PRIETO’S TESTIMONY
“Ashley Prieto was living in Morongo during the summer of 2011. She knew De
Los Santos from high school. After they graduated, Prieto started buying drugs from De
Los Santos. She had known the victim since 2010; she had purchased drugs from him.
She also knew defendant because he dated her friend, [C.A.].
“In August 2011, Prieto received a telephone call from the victim. He told her that
he was in a car with De Los Santos and defendant on the way to Las Vegas. She was
concerned because defendant and De Los Santos were heavily involved in drug sales and
the victim was not as heavily involved. The victim went missing.
“Several months later, in approximately October, Prieto was in Palm Springs with
De Los Santos. She and De Los Santos were smoking marijuana. She asked him what
had happened to the victim. De Los Santos told her that he believed the victim had
broken into his house and tied his girlfriend up during a robbery. As a result, De Los
Santos told Prieto that he took the victim out to the desert and shot him in the head. De
Los Santos told her that the victim had confessed to being involved in the robbery of De
Los Santos’s girlfriend so he deserved to be killed. Prieto felt that De Los Santos was
proud to have killed the victim.
5
“On December 28, 2011, Investigator Alfaro interviewed Prieto. Prieto told him
that De Los Santos had told her he shot the victim in the head. The information that the
victim had been shot in the head had not been released to the public. Prieto would not
have known the information from another source.”
3. “WALDO BARKER’S TESTIMONY
“Waldo Barker[3] was arrested during an automobile theft investigation; he told the
arresting officer that he knew about a murder involving defendant and De Los Santos.
Investigator Alfaro interviewed him. Barker was made no promises of leniency in the
automobile theft case.[4]
“Barker met De Los Santos in 2011. Barker was a mechanic and he worked on De
Los Santos’s car. Barker and De Los Santos used drugs together. Barker had met
defendant through De Los Santos.
“Sometime in August 2011, around 4:00 a.m., Barker went to a condominium in
Cathedral City, where De Los Santos lived, to eat and get ‘high.’ Defendant was with De
Los Santos. While Barker was at the house, the victim called De Los Santos looking for
heroin. Around 5:30 a.m., De Los Santos left the house to get the heroin and Barker went
home. Barker was unsure if defendant also went home.
3 ”Barker was unavailable for trial because he invoked his Fifth Amendment right not to testify; his preliminary hearing testimony was read to the jury.”
4 “Barker had a 2004 conviction for burglary, a conviction for automobile theft, and a conviction for possession of methamphetamine.”
6
“De Los Santos called Barker around 7:30 a.m. and told him to come back to the
condominium. When Barker got to the condominium, he saw that the front door jamb
had been broken and the place was ransacked. De Los Santos was upset. He had a
handgun in his waistband. De Los Santos asked Barker where he had been since he had
left the house. De Los Santos told Barker that he had been robbed. Barker advised De
Los Santos that he had been working; De Los Santos told him that he believed him. He
said he knew who had done it and that he already had him.
“De Los Santos took Barker to his bedroom. The room was ransacked. In a
nearby bathroom, he saw the victim; the victim had a split lip and a black eye. The
victim repeatedly told De Los Santos that he had not committed the burglary. De Los
Santos had Barker sit with the victim while he went to do something. The victim had
blood on his shirt.
“De Los Santos returned and told the victim to put on a hooded sweatshirt, a hat
and sunglasses. He told the victim that he was going to take him home. The victim
continued to plead with De Los Santos, advising him he had not committed the burglary.
De Los Santos told Barker to watch the house for him because the front door was broken.
“De Los Santos walked the victim out of the house while holding the handgun. De
Los Santos told the victim not to do anything stupid and not be loud, and ‘everything will
be cool.’ De Los Santos gave Barker a look that Barker interpreted ‘like a wink,’ that he
was not going to take the victim home.
7
“De Los Santos and the victim left in a green sedan that was driven by defendant.
Defendant had been outside waiting in the car; De Los Santos and the victim got in the
backseat.
“Barker observed spots of blood on the hallway floor. De Los Santos called
Barker and asked him to try to clean up the blood. Barker tried to clean up the blood but
was unsuccessful. Barker went home around 8:45 a.m. De Los Santos was still not
home.
“Barker saw De Los Santos and defendant several days later. Barker told
defendant that the victim’s girlfriend was worried that she had not heard from the victim.
Defendant told Barker that they had driven the victim out to the desert in Sky Valley.
The victim kept asking De Los Santos not to hurt him. Defendant claimed he tried to
convince De Los Santos not to hurt the victim, and to convince the victim to tell the truth
about the burglary. Defendant claimed that De Los Santos ‘snapped.’ Defendant walked
away and De Los Santos shot the victim. De Los Santos told Barker that the victim had
‘told more truth than he should have’ and had admitted his involvement in the burglary.
De Los Santos admitted to Barker that he had lost it and shot the victim. They left the
victim’s body tied to a post.
“Barker directed Investigator Alfaro to the condominium where De Los Santos
had lived. De Los Santos’s no longer lived in the condominium. The front door jamb
showed signs of damage. There were bleach stains on the carpet. Chemical tests were
done on some of the walls and carpet, and were presumptive for blood. During a search
8
of De Los Santos’s car, police found shotgun shells. Police also found a loaded rifle, and
.40-caliber ammunition in De Los Santos’s new apartment.”
4. “[C.A.]’S TESTIMONY
“[C.A.] was defendant’s girlfriend in 2010 and 2011. She and defendant used
drugs when they were dating, including heroin and methamphetamine. [C.A.] and
defendant moved into an apartment together in Palm Springs. The victim would come to
the apartment approximately once each week. They would all do drugs together. [C.A.]
met De Los Santos in high school; he was her drug supplier. In 2011, defendant drove
several different cars, including his mother’s Toyota sedan. At the time of the victim’s
murder, defendant had been working with De Los Santos selling drugs for him.
“The last time [C.A.] saw the victim was in August 2011; she became concerned
when she had not heard from him in a week. [C.A.] asked defendant whether he had
talked to the victim recently. Defendant told her he had not talked to the victim and that
she was not to mention the victim any more. She thought this was strange because they
had been friends. [C.A.] heard rumors about what had happened to the victim. [C.A.]
asked defendant if he had killed the victim, and he claimed he had nothing to do with it.
In a pretrial interview, [C.A.] had claimed that when she asked defendant about the
victim, he told her to ‘stay the fuck out’ of the disappearance and was adamant that she
not mention the victim’s name.
“During the investigation, Detective Alfaro discovered that defendant was in
prison. No search of defendant’s home could be made because of his incarceration. The
parties stipulated that defendant pleaded guilty in Riverside County on September 30,
9
2011, to one felony count of possession for sale of a controlled substance. He was
sentenced to two years eight months in prison.”
DISCUSSION
In light of the decision in Strong, supra, 13 Cal.5th, remand to the trial court for
further proceedings is necessary.
SB 1437 became effective January 1, 2019. “[SB 1437] modified California’s
felony murder rule and natural and probable consequences doctrine to ensure murder
liability is not imposed on someone unless they were the actual killer, acted with the
intent to kill, or acted as a major participant in the underlying felony and with reckless
indifference to human life.” (People v. Cervantes (2020) 46 Cal.App.5th 213, 220.) As
The trial court’s order denying the petition is reversed and the matter is remanded
for further proceedings pursuant to section 1172.6, as set forth in this opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
SLOUGH J.
RAPHAEL J.
13
AI Brief
AI-generated · verify before citing
Holding. A defendant whose felony-murder special-circumstance finding predates the decisions in People v. Banks and People v. Clark is not categorically ineligible for resentencing and is entitled to a prima facie review of their petition under Penal Code section 1172.6.
Issues
Does a pre-Banks and Clark felony-murder special-circumstance finding preclude a defendant from establishing a prima facie case for resentencing under Penal Code section 1172.6?
Is the defendant entitled to a remand for further proceedings on his petition for resentencing?
Disposition. Reversed and remanded.
Quotations verified verbatim against the opinion
“the special circumstance findings do not preclude him [or her] from making out a prima facie case for resentencing under section 1172.6.”
“the trial court summarily denied defendant’s petition for resentencing based on the felony-murder special circumstance finding made by the jury. However, the jury finding predated Banks and Clark.”