People v. Diaz CA3 ( 2021 )

Filed 1/5/21 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C091310
Plaintiff and Respondent, (Super. Ct. Nos.
STKCRFE19860000270,
v. 38223)
SIMON LUA DIAZ,
Defendant and Appellant.
Defendant Simon Lua Diaz challenges the trial court’s denial of his petitions for
resentencing under Penal Code1 section 1170.95. Defendant contends the court’s
summary denial was prejudicially erroneous because he fulfilled the statutory
requirements by stating a prima facie case for relief thus entitling him to the appointment
of counsel and briefing on his eligibility. He further argues that if the superior court
consulted the record in making its determination, that record was “materially inadequate”
1 Undesignated statutory references are to the Penal Code.
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for purposes of deciding his eligibility. While acknowledging his jury was not instructed
on aiding and abetting liability (indeed, defendant’s trial counsel expressly declined an
aider and abettor instruction), defendant nevertheless argues the entire trial transcript
must be consulted “according to modern standards,” and he should be afforded the
opportunity to present new evidence.
Because defendant has not shown the trial court erred in determining he failed to
state a prima facie case for relief, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I
Defendant’s Convictions
In 1987, a jury determined defendant, Simon Lua Diaz, was guilty of two counts
of first degree murder with special allegations that defendant had committed multiple
murders and that the murders were committed during the course of a burglary. The trial
court sentenced defendant to two consecutive life terms without the possibility of parole
and this court affirmed the judgment in an unpublished opinion.2 (People v. Lua
(Sept. 20, 1989, C002681) [nonpub. opn.] (Lua).) For our convenience, we herein recite
relevant facts taken from this prior opinion in defendant’s original appeal:
“A jury convicted defendant, a Spanish-speaking farm worker from Mexico, of the
murders of an elderly couple, Al and Mary Borth. Family members found the Borths
shot to death in their rural San Joaquin home. They each had been shot six times with a
.22 caliber rifle. Among other items later found missing from the victim’s home were Al
2 We will treat the People’s request for judicial notice of this opinion as a request to
incorporate it by reference and will grant that request. This opinion was part of
defendant’s record of conviction (People v. Woodell (1998) 17 Cal.4th 448, 456), which
may be properly considered in the trial court’s prima facie review (People v. Lewis
(2020) 43 Cal.App.5th 1128, 1136, fn. 7, review granted Mar. 18, 2020, S260598
(Lewis); People v. Verdugo (2020) 44 Cal.App.5th 320, 333, review granted Mar. 18,
2020, S260493 (Verdugo)).
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Borth’s wallet, Mary Borth’s purse, and two of Al Borth’s guns -- a shotgun and a rifle.
The rifle was an uncommon caliber, .22-250. The wallet and purse were later found in a
local irrigation ditch along with other items from the Borth residence. These items
included several ammunition boxes for the still missing guns.
“Shortly after the killings, defendant, employed in a field near the victims’ house,
told his foreman that he had a rifle and a shotgun for sale. He showed several people .22-
250 caliber bullets which he said fit the rifle. One acquaintance obtained two of
defendant’s .22-250 bullets and turned them over to the sheriff. Another acquaintance,
with defendant’s permission, tossed several more bullets into a river. When later
confronted by detectives about the bullets, defendant first denied having possessed them.
He also denied that he had ever been in the victim’s home.
“Sheriff’s deputies arrested defendant after detectives found his fingerprints on the
telephone in the victims’ living room. After receiving Miranda warnings and learning
about the fingerprints, defendant still denied having ever entered the Borth
residence. . . .” (Lua, supra, C002681, pp. 2-3.)
“On March 5, 1987, after hearing evidence for seven days, the jury began
deliberations. On March 11, 1987, the jury requested clarification of a legal matter. It
sent the court a question, ‘Can a person be found guilty of murder by indirect
participation or assisting in the crime?’ With the parties permission, the court asked the
jury to explain what it meant by ‘indirect participation.’ The jury responded, ‘Can a
person be found guilty of murder by being a participant in the crime but not actually the
person who pulls the trigger?’
“In a discussion held out of the jury’s presence, and not reported in the record,
both counsel agreed that the case had not been tried on an accomplice theory.
Accordingly, neither party wished to have the trial court instruct the jury on the liability
of an aider and abettor. In addition, the court noted ‘a certain amount of unfairness as far
as giving them [CALJIC instructions 8.27 and 8.80] without counsel having the
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opportunity to discuss them with the jury.’ Accordingly, the court answered the jury’s
question by telling them: ‘You have at the present time all of the instructions that are
applicable to the case. Those are the instructions by which you are to be governed.’ ”
(Lua, supra, C002681, pp. 4-5.)
“The following day, the jury asked the court to re-read, among other parts of the
record, the portion of the prosecutor’s opening statement ‘in which he states what he
plans to prove in this case.’ In that statement, the prosecutor twice briefly said that the
People will attempt to prove ‘that defendant, Mr. Simon Lua in this case, killed or
assisted in the killing of Al Borth.’ (Emphasis added.) The trial court complied with the
jury’s request after admonishing them that ‘the statements of the attorneys, including the
opening statement, are not evidence and are not to be considered . . . as evidence.’ ”
(Lua, supra, C002681, p. 5, fn. 1.) “Two days later the jury found the defendant guilty of
two counts of first degree murder and found true both the felony-murder and multiple
murder special circumstances.” (Lua, p. 5.)
II
Defendant’s Petitions For Resentencing
A
Legal Background
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on
January 1, 2019, was enacted to “amend 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 the intent to kill, or
was not a major participant in the underlying felony who acted with reckless indifference
to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The legislation accomplished this
by amending sections 188 and 189 and adding section 1170.95 to the Penal Code.
Section 188, subdivision (a)(3), which defines malice, now provides in part:
“Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a
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principal in a crime shall act with malice aforethought. Malice shall not be imputed to a
person based solely on his or her participation in a crime.” Section 189, subdivision (e)
now limits the circumstances under which a person may be convicted of felony murder:
“A participant in the perpetration or attempted perpetration of a felony listed in
subdivision (a) [defining first degree murder] in which a death occurs is liable for murder
only if one of the following is proven: [¶] (1) The person was the actual killer. [¶]
(2) The person was not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person was a major participant in
the underlying felony and acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.”
Senate Bill No. 1437 also added section 1170.95, which allows those “convicted
of felony murder or murder under a natural and probable consequences theory [to] file a
petition with the court that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining counts when all of the
following conditions apply: [¶] (1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences doctrine. [¶] (2) The
petitioner was convicted of first degree or second degree murder following a trial . . . .
[¶] (3) The petitioner could not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)
As relevant here, once a complete petition is filed, “The court shall review the
petition and determine if the petitioner has made a prima facie showing that the petitioner
falls within the provisions of this section. If the petitioner has requested counsel, the
court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve
a response within 60 days of service of the petition and the petitioner may file and serve a
reply within 30 days after the prosecutor response is served. . . . If the petitioner makes a
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prima facie showing that he or she is entitled to relief, the court shall issue an order to
show cause.” (§ 1170.95, subd. (c).)
B
The Superior Court’s Denial Of The Petitions
On October 17, 2019, defendant filed a pro. per. form petition requesting
resentencing under section 1170.95. On the form, defendant declared via a checked box
that he had been charged with felony murder or murder under the natural and probable
consequences theory and had been convicted of first degree murder pursuant to those
theories. Defendant further declared he could not now be convicted of first degree
murder because of changes made to sections 188 and 189. He attested that he was not the
actual killer, but failed to check the box on the petition form which stated, “I did not, with
the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual
killer in the commission of the murder in the first degree.”
Attached to defendant’s form petition were numerous materials, including
documents stating defendant had been found guilty of two counts of first degree murder,
with special circumstance allegations under section 190.2, subdivision (a)(3) and 190.2,
subdivision (a)(17), and was serving a sentence of life without the possibility of parole.
While some of these materials were drafted by defendant and somewhat difficult to
understand, we believe defendant suggested his special circumstance findings did not
necessarily disqualify him from relief and sought discovery of certain documents in his
record, including the jury instructions. Also included among the materials submitted in
support of defendant’s petition were a probation report wherein defendant proclaimed his
absolute innocence, a memorandum to defendant’s defense file noting defendant had
stated he received the ammunition from two unnamed people prior to the murders, a letter
stating defendant’s belief he was convicted based upon partial fingerprints, and portions
of the reporter’s transcript from trial showing the parties intended to instruct the jury on
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murder with malice aforethought and first degree felony murder occurring during a
burglary.
Defendant further submitted his undated and unsigned declaration that stated
another individual wished to burglarize the victims’ home, and in order to help him,
defendant went to see if the victims were home. When Al Borth answered the door,
defendant asked to and did use the telephone. Defendant learned later the Borths had
been killed and believed it was the other individual who killed them. He did not tell
authorities about this man because the man had threatened his family. The guns he had
for sale he had had for some time. Defendant denied killing anyone.
On November 22, 2019, the superior court summarily denied his petition in an ex
parted minute order, which checked a box stating, “The Petitioner has not made a prima
facie showing.” No further explanation was provided. Defendant then filed a writ
petition challenging the trial court’s denial of his resentencing request, which the trial
court treated as a subsequent petition for resentencing and summarily denied. Defendant
timely appealed these denials.
DISCUSSION
Defendant contends the court’s summary denial was prejudicially erroneous
because he fulfilled the statutory requirements by stating a prima facie case for relief,
thus entitling him to the appointment of counsel and briefing on his eligibility. We
disagree.
Section 1170.95, subdivision (c) requires the trial court to make two separate
prima facie determinations: one before appointing counsel and receiving briefing, and
one after those procedural steps have been taken. (Verdugo, supra, 44 Cal.App.5th at
pp. 327-329, review granted; Lewis, supra, 43 Cal.App.5th at p. 1137, review granted.)
“The first sentence of section 1170.95, subdivision (c), directs the court to review
the petition and determine if the petitioner has made the requisite prima facie showing.
The second sentence provides, if the petitioner has requested counsel, the court must
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appoint counsel to represent him or her. The third sentence requires the prosecutor to file
and serve a response to the petition within 60 days of service of the petition and permits
the petitioner to file a reply to the response. The structure and grammar of this
subdivision indicate the Legislature intended to create a chronological sequence: first, a
prima facie showing; thereafter, appointment of counsel for petitioner; then, briefing by
the parties. ([Lewis], supra, 43 Cal.App.5th at pp. 1139-1140 [review granted] [‘[w]hen
the statutory framework is, overall, chronological, courts will construe the timing of
particular acts in relation to other acts according to their location within the statute; that
is, actions described in the statute occur in the order they appear in the text’];
[Citations.]” (Verdugo, supra, 44 Cal.App.5th at p. 332, review granted.)
The trial court’s review of the record of conviction as part of reviewing
defendant’s initial prima facie showing is fully contemplated by section 1170.95,
subdivision (c) (Verdugo, supra, 44 Cal.App.5th at pp. 329-330, review granted) and is
grounded in sound policy (see, e.g., Lewis, supra, 43 Cal.App.5th 1128, 1138-1139,
review granted [it would be a “gross misuse of judicial resources” to issue an order to
show cause or appoint counsel where a review of the court record established ineligibility
as a matter of law]).
If following the initial prima facie review, the trial court concludes that the
petitioner has not made a prima facie showing that he or she “falls within the provisions
of” section 1170.95, the trial court may summarily deny the petition without first
appointing counsel or holding a hearing.
Here, the trial court summarily denied defendant’s two petitions for resentencing
by checking a box that indicated, “The Petitioner has not made a prima facie showing.”
It is incumbent upon defendant to affirmatively demonstrate this was error. (Denham v.
Superior Court (1970) 2 Cal.3d 557, 564 [judgments and orders are presumed correct,
and all intendments and presumptions are indulged to support them on matters as to
which the record is silent]; People v. Thomas (2011) 52 Cal.4th 336, 361 [absent
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evidence to the contrary, “we presume that the court ‘knows and applies the correct
statutory and case law’ ”].) However, he has not done so.
Our review of the record discloses that defendant’s petition failed to state a prima
facie case for relief and that the record of conviction shows he was ineligible for relief as
a matter of law. First, the materials defendant included with his petition showed he had
been convicted of first degree murder with a burglary felony-murder special
circumstance. Thus, a review of defendant’s petition and supporting materials alone
justified the court’s denial of his petition. Second, the record of conviction supports the
superior court’s finding of ineligibility. The People’s information charged defendant
with two counts of premeditated murder (§ 187) with special allegations that he had
committed multiple murders (§ 190.2, subd. (a)(3)) while engaged in the commission of a
burglary (§ 190.2, subd. (a)(17)). The jury found him guilty of these murders and
determined the special circumstances were true.
As was noted in this court’s previous appellate opinion,3 the parties agreed there
was no evidence presented at trial that the murders were committed by anyone but
3 Defendant challenges the “adequacy” of any reliance on the record of conviction,
asserting a full review of the trial transcripts must be made. Defendant also challenges
any use of the facts contained within the appellate decision in order to evaluate
defendant’s eligibility for resentencing. However, defendant does not challenge that the
former appellate opinion is part of the record of conviction, nor does he provide authority
establishing that it cannot be used when considering his petition for resentencing. Rather,
statements made in prior appellate opinions are admissible as reliable hearsay when
considering a resentencing petition (see People v. Guilford (2014) 228 Cal.App.4th 651,
654, 660 [Proposition 36 proceedings]) and have been used by numerous courts in
evaluating a defendant’s section 1170.95 prima facie showing (see, e.g., Lewis, supra,
43 Cal.App.5th at p. 1136, fn. 7, review granted; Verdugo, supra, 44 Cal.App.5th at
p. 333, review granted; People v. Tarkington (2020) 49 Cal.App.5th 892, 909; People v.
Torres (2020) 46 Cal.App.5th 1168, 1178, review granted June 24, 2020, S262011;
People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020,
S260410). As defendant did not file a petition for rehearing challenging the facts as
stated in our previous opinion, we may presume those facts were a reasonable summary
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defendant and that the case was not tried under an accomplice theory. (Lua, supra,
C002681, pp. 5, 16-17.) Therefore, the court did not instruct the jury on accomplice
liability even though the jury asked whether it could find defendant guilty without
actually determining that he pulled the trigger. (Lua, pp. 5, 17.) As such, when the jury
found defendant guilty and the special circumstances true, the jury necessarily accepted
the evidence that defendant was the actual killer and determined he had “committed or
attempted to commit a burglary” and “intended to kill” the victims.4 (Lua, pp. 17, 24.)
This renders defendant ineligible for relief because he fails to satisfy the requirements of
section 1170.95, subdivision (a)(3) as a matter of law. (See §§ 189, subd. (e), 1170.95,
subd. (a)(3).)
To the extent defendant is arguing he is eligible for relief because he was not the
actual killer and/or did not act with the intent to kill during the course of the burglary,
despite failing to check the box declaring that basis for the petition, the arguments are
foreclosed by the jury’s determinations. (See Lewis, supra, 43 Cal.App.5th at pp. 1138-
1139, review granted [the jury’s direct finding contradicted and controlled defendant’s
asserted eligibility for relief]; People v. Allison (2020) 55 Cal.App.5th 449, 461-462 [“If
of the evidence against him. (See Guilford, at pp. 660-661 [a defendant who believes
there is a materially inaccurate description of facts in an appellate opinion may move for
rehearing to correct those inaccuracies].)
4 The trial court instructed that in order to find defendant guilty of the felony-
murder special circumstance under section 190.2, subdivision (a)(17), the jury had to
determine: “ ‘that the murder was committed while the defendant was engaged in the
commission or attempted commission of a burglary; [¶] [t]hat the murder was committed
during the immediate flight after the commission or attempted commission of a burglary
by the defendant; [¶] [t]hat the defendant intended to kill a human being; [and] [¶] [t]hat
the murder was committed in order to carry out or advance the commission of the crime
of burglary or to facilitate escape therefrom or to avoid detection.’ . . . ‘[t]he special
circumstances referred to in these instructions is not established if the burglary or
attempted burglary was merely incidental to the commission of the murder.’ ” (Lua,
supra, C002681, p. 23 (italics added).)
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the prior finding shows the petitioner meets the requirements for murder liability under
amended sections 188 and 189, then it is not true that the petitioner could not be
convicted of murder because of the changes to sections 188 and 189, and the petition
must be denied”].) If defendant wishes to challenge the implications arising from the
jury’s section 190.2, subdivision (a)(17) finding, he must first do so in a petition for
habeas corpus.5 (See People v. Galvan (2020) 52 Cal.App.5th 1134, 1141-1142; Allison,
at p. 459, fn. 9.)
Having concluded defendant failed to state a prima facie case for relief as a matter
of law, the trial court did not err in failing to appoint counsel. (See Verdugo, supra,
44 Cal.App.5th at p. 320, review granted [where defendant fails to state a prima facie
claim for relief under § 1170.95, the court does not err in failing to appoint counsel];
People v. Cornelius, supra, 44 Cal.App.5th at p. 58, review granted [court did not err in
failing to appoint counsel for defendant “indisputably ineligible for relief” under
§ 1170.95].)
DISPOSITION
The judgment is affirmed.
/s/
Robie, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Krause, J.
5 In light of this determination, we do not reach the People’s arguments regarding
the applicability of the California Supreme Court’s decisions in People v. Banks (2015)
61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, to defendant’s judgment from
1987.
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