Opinion
E077148
11-18-2021
THE PEOPLE, Plaintiff and Respondent, v. JOEY ALFREDO DIAZ, Defendant and Appellant.
Joey Alfredo Diaz, in pro. per.; William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF123528. Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Joey Alfredo Diaz, in pro. per.; William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MILLER ACTING P. J. 1
FACTUAL AND PROCEDURAL HISTORY
A. STATEMENT OF THE CASE
On October 6, 2005, an information charged defendant and appellant Joey Alfredo Diaz and codefendants Johnny Ray Aguirre Jr. and Edward Juan Cuellar with first degree murder under Penal Code section 187, subdivision (a). Under section 190.2, subdivision (a)(22), the information also alleged that all three defendants intentionally killed the victim while they were active participants in a criminal street gang and the murder was carried out to further the activities of the criminal street gang. The information additionally alleged a gang enhancement under section 186.22, as to all three defendants. Furthermore, as to defendant, the information alleged that he personally used a deadly and dangerous weapon (a knife) in the commission of the murder within the meaning of sections 122022, subdivision (a)(1), and 1192.7, subdivision (c)(23).
At the time of the crime, defendant was 15 years old.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant and his codefendants were tried together but by two separate juries. Defendant and Aguirre were tried by the same (red) jury, and Cuellar was tried by another (blue) jury. The red jury found defendant and Aguirre guilty of second degree murder with a true finding that the crime was committed for the benefit of, at the direction or, of in association with a criminal street gang within the meaning of section 186.22, subdivision (b). The red jury found that defendant did not personally use a deadly and dangerous weapon in the commission of the murder within the meaning of 2 sections 12022, subdivision (b)(1), and 1192.7, subdivision (c)(23). The blue jury convicted Cuellar of first degree murder under section 187, subdivision (a). The blue jury also found true the section 190.2, subdivision (a)(22), special circumstance active gang participation with intent to kill and the criminal street gang enhancement within the meaning of section 186.22, subdivision (b).
On October 6, 2006, the trial court sentenced defendant to an indeterminate term of 15 years to life in state prison.
After defendant appealed, we affirmed the judgment. The Supreme Court denied defendant's petition for review on October 27, 2008.
People v. Diaz (July 10, 2008, E041667), 2008 WL 2690756 [nonpub. opn.].
On January 28, 2019, defendant filed a petition for resentencing under section 1170.95 in the trial court. In his petition, defendant alleged that he was entitled to resentencing under section 1170.95, subdivision (d)(2), on the grounds that he had been convicted of second degree murder under a theory of felony murder or murder under the natural and probable consequences doctrine. The trial court ordered the People to show cause why defendant should not be resentenced. The People argued that defendant was found guilty of second degree murder as a direct aider and abettor in the commission of first degree murder with malice aforethought, and that the jury was not instructed on the felony-murder rule or the natural and probable consequences doctrine. Therefore, defendant was ineligible for relief under section 1170.95 as a matter of law. 3
On May 28, 2021, with both parties stipulating that the felony murder or natural and probable consequences instructions were not given to the jury at trial, the trial court denied defendant's petition for resentencing under section 1170.95.
On June 3, 2021, defendant filed a timely notice of appeal.
B. STATEMENT OF FACTS
The statement of facts is taken from the "Factual Background" from our opinion in case No. E041667.
"A. Testimony in Front of the Red and Blue Juries
"On May 11, 2005, Lisa Allen lived in the Contadora apartment complex located at 990 Marguerita Drive in Corona with her 15-year-old son, Dominic Redd. The apartment complex was located on the corner of Rimpau and Circle City. Redd attended Centennial High School. On that day, Redd missed the bus and walked home.
"Theresa Harris lived in the same complex. On her way home to the complex on that day, while stopped at the corner of Rimpau and Circle City, she observed three 'boys' standing together at the intersection. One of the boys, whom she identified in court as Diaz, knelt down and put a hand on the ground in a three-point football stance. Harris turned onto Circle City. Harris's brother, David Sewell, was out running at the same time.
"Sewell observed Redd walking toward Rimpau. At this point, Harris had pulled into the complex and was stopped. She observed Redd run to his apartment door. Redd appeared to be trying to unlock his door but was having trouble. He kept looking over his 4 shoulder. Harris then saw the same three boys she had seen at the corner run by the driver's side of her car toward Redd.
"Debra Robledo, who lived across from the apartment complex, identified Diaz, Aguirre, and Cuellar as the three boys who ran into the complex after Redd. They were also seen running into the complex by Aguirre's sister, Frances, and his uncle, William Woods, around this same time.
"Redd ran from his door because he could not get it open. He got to the front of Harris's car before Diaz, Aguirre, and Cuellar jumped on him. Redd got free and ran off with the boys chasing him. Harris found Sewell and told him some kids were 'jumping [a] black kid. . . .' When they returned to the complex, Sewell found Redd lying in a planter with a large gash in his upper abdominal area. He was lying in a pool of blood. Redd told Sewell, 'Oh, God. Don't let me die. '
"Other residents and workers at the apartment complex heard yelling in the complex, including 'bullshit,' and 'motherfucker.' They then found Redd bleeding in the planter.
"Robledo observed Diaz, Aguirre, and Cuellar all run out of the complex together. They stopped for a few seconds. She believed that Diaz tucked a shiny object under his T-shirt, and they all then ran off.
"Several Corona police officers arrived at the scene. Redd was bleeding profusely and gasping for air; he did not know who had stabbed him. Redd was rushed to the hospital by paramedics, where he was pronounced dead at 6:20 p.m. as a result of 13 stab wounds. 5
"Prior to the stabbing incident, Redd was part of a group that was 'mad dogging' Hispanic students at Centennial high school. References to the Crip gang were found in Redd's backpack, which had been dropped on the ground near where he was stabbed, and during a search of his room.
"Diaz and Aguirre were detained on May 16, 2005, after they were chased by police into a cemetery near Aguirre's apartment. Cuellar was detained on May 18, 2005.
"Diaz's home was searched, and a knife was found in a duffle bag. No blood was found on the knife.
"Corona Police Detective Robert Newman testified as a gang expert familiar with the CVL gang, which he said was known as the Corona Varrio Locos. CVL was a turf-based gang that claimed all of Corona. CVL's primary activities included murder, assaults with deadly weapons, robberies, vandalism, and tagging. Documented CVL gang members had committed the predicate crimes of attempted murder and assault with a deadly weapon.
"There had been a violent riot between Hispanic and African-American gangs in 2004 at Centennial High School. The rivalry between the two ethnic groups dated back to at least 2001 and continued at the time of Redd's stabbing. After Redd's death, there was gang graffiti in the area between CVL and African-American gangs regarding retaliation for the murder. 6
"Gang members gain respect and status in the gang by either committing the most violent crimes or making money for the gang by committing robberies or selling drugs. To get into CVL, a person would either be jumped in, would commit a crime, or could join if his family was already a member.
"Detective Newman identified Aguirre, Diaz, and Cuellar as members of the CVL gang. Diaz was known as Micro, Cuellar as Lil Cartoon, and Aguirre as Turtle. Detective Newman did not believe that Redd was an active gang member. Based on Detective Newman's knowledge of the attack on Redd, he believed that the murder was committed for the benefit of, at the direction of, or in association with CVL.
"While Cuellar was in custody at juvenile hall on August 14, 2006, waiting for transfer to court, he was placed in a holding cell. After Cuellar was taken out of the cell, gang graffiti that said 'Corona Fourth Street, Cartoon, CVL' was found on the floor.
"[¶] . . . [¶]
"C. Testimony in Front of the Diaz and Aguirre (Red) Jury
"Diaz was interviewed at 1:00 a.m. on May 17, 2005, by Detective Bloomfield. The videotape was played for the jury. Diaz waived his Miranda rights. Diaz initially denied any involvement in the stabbing of Redd. Diaz then admitted that he, Aguirre, and a third person (whom he refused to identify) chased after Redd after Redd 'dogged' them. Diaz admitted that he stabbed Redd in the leg and then dropped the knife. He did not say whether Aguirre or the other person stabbed Redd. At the end of the interview, Diaz appeared to be throwing CVL gang signs and 'flipping . . . off' the police through the two-way mirror. 7
"Aguirre was interviewed on May 17, 2005, at 3:00 a.m. The videotape of the interview was shown to the jury.
"Aguirre was jumped into CVL (which he said was the Corona Vatos Locos) gang when he was about 12 years old, and some people called him Turtle. Diaz was dating Aguirre's sister.
"Aguirre admitted running after Redd; however, he claimed that he and Diaz lagged behind the third person (whom he refused to identify). Diaz and Aguirre gave up the chase, but the third person continued to chase Redd. Diaz and Aguirre remained at the corner of Rimpau and Circle City just outside the apartment complex. They never hit or stabbed Redd. The third person returned to where they were waiting and told them he had stabbed Redd. Aguirre started yelling '[f]uck' and '[s]hit' loudly. At another point, Aguirre admitted that all three of them were hitting Redd but that the third person stabbed him. Diaz and Aguirre were starting to walk away when the third person stabbed Redd. Aguirre was afraid he would be killed if he 'ratted' out the third person.
"D. Defense
"Diaz testified on his own behalf in front of both juries. He admitted that he was initially evasive with police detectives during his pretrial interview. He admitted that he was a CVL member and that his nickname was Micro.
"Diaz was at Aguirre's house on May 11, 2005. They left and went looking for 'weed.' On the way, Diaz saw Redd walking on the street. Redd was 'dogging' him. They drove to Cuellar's house. They told Cuellar about seeing Redd walking down Rimpau trying to 'dog us with his chest out.' All three of them walked around the 8 neighborhood to see if they could find someone with marijuana. Diaz was not carrying a knife and did not think that any of them had one.
"As they were walking, they saw Redd across the street. Diaz said to the others, 'Fuck that fool. Let's go get him. I'm gonna get him.' Diaz intended to hit Redd, not stab or kill him. They could not catch up to Redd. When Redd smiled at them for not catching up, Diaz became enraged.
"Diaz, Aguirre, and Cuellar separated in order to corner Redd. When Diaz got back together with them, Aguirre and Cuellar were already beating up Redd. They were hitting Redd with their fists. Diaz joined in the brawl, hitting Redd in the body and head.
"During the fight, Diaz observed Cuellar pull out a knife and start stabbing Redd. Diaz and Aguirre stepped back and looked at each other as if to say, 'What the fuck is this fool doing,' but they did not tell him to stop. Diaz then told Aguirre and Cuellar to get out of there, and they ran out of the complex. Cuellar told Diaz that he got rid of the knife, but Diaz did not know where. They ran to Cuellar's house. Cuellar told Diaz and Aguirre that he 'stabbed that fool.'
"Diaz told the detectives that he stabbed Redd in the leg to protect Cuellar and to 'throw off the cops' as to who really stabbed him. By the time of trial, he no longer wanted to protect Cuellar because Cuellar did not reciprocate and protect Diaz. Diaz admitted that he was still close to Aguirre, but not with Cuellar.
"Aguirre and Cuellar presented no evidence." (People v. Diaz, supra, E041667.) 9
At the conclusion of defendant's jury trial, the court instructed the jury on murder with malice aforethought, CALCRIM No. 520, and on the degrees of murder under CALCRIM No. 521. With respect to the theory of the case and defendant's liability for murder, no instructions were given to defendant's jury on felony murder or the natural and probable consequences doctrine.
Defendant's liability for murder was predicated on his status as an accomplice and aider and abettor in the commission of a first degree murder with malice aforethought. The trial court instructed the jury on the general principles of aiding and abetting with CALCRIM No. 400, in part, as follows: "A person may be guilty of a crime in two ways. One, he may have directly committed the crime. Two, he may have aided and abetted someone else, who committed the crime. In these instructions, I will call that other person the 'perpetrator'. A person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it."
The trial court also instructed the jury on aiding and abetting-intended crimes- with CALCRIM No. 401, in part, as follows: "To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime. [¶] Someone aids and abets a crime if he knows the perpetrator's unlawful 10 purpose and he specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime."
The trial court further instructed the jury on accomplices with a modified version of CALCRIM No. 335 in part as follows: "An accomplice is a person who is subject to prosecution for the identical crime charged against the co-defendants. Someone is subject to prosecution if he personally committed the crime or if: [¶] 1. He knew of the criminal purpose of the person who committed the crime. [¶] 2. He intended to, and did in fact aid, facilitate, promote, encourage, or instigate the commission of the crime. [¶] If the crime of murder was committed, then [defendant] was an accomplice to that crime."
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and has requested this court to undertake a review of the entire record. Pursuant to Anders, counsel identified the following issue to assist the court in its search of the record for error:
"Did the trial court err in denying appellant's section 1170.95 petition on the ground that he was ineligible for relief[?] (See People v. Daniel (2021) 57 Cal.App.5th 666, 674 [review granted February 24, 2021, S266336]; People v. Edwards (2020) 48 Cal.App.5th 666, 674 [review granted July 8, 2020, S262484]; People v. Lopez (2019) 38 Cal.App.5th 1087, 1103 [review granted November 13, 2019, S258175] [Senate Bill 11 1437 significantly restricted potential aider and abettor liability for murder under the natural and probable consequences doctrine; now, rather than an objective, reasonable foreseeability standard, pursuant to new section 188, subdivision (a)(3), to be guilty of murder other than as specified in section 189, subdivision (e), concerning felony murder, the subjective mens rea of "malice aforethought" must be proved: '[T]o be convicted of murder, a principal in a crime shall act with malice aforethought.' (See also Stats. 2018, ch., § 1, subd. (g) ['[a] person's culpability for murder must be premised upon that person's own actions and subjective mens rea']); the required element of malice 'shall not be imputed to a person based solely on his or her participation in a crime.' (§ 188, subd. (a)(3)].)"
We offered defendant an opportunity to file a personal supplemental brief. On October 1, 2021, defendant filed a 2-page supplemental brief with attachments. We first address that in his supplemental brief, defendant moved to relieve appointed counsel and have new counsel appointed. In an order dated October 6, 2021, we denied defendant's request because "[a]ppellant has failed to show that appointed appellate counsel has failed to raise any reasonably arguable issues by filing an appellant's opening brief under" Wende, supra, 25 Cal.3rd 435.
Next, defendant acknowledges that "the trial Court Judge did instruct the jury on general principles of aiding and abetting, the trial Court also instructed the jury on aiding and abetting, the trial Court also further instructed the jury on accomplices with a modified version[.]" Defendant, however, argues that "we need to know what else this trial Court also instructed." As we noted ante, at defendant's section 1170.95 hearing, 12 both the prosecutor and defense counsel agreed that "there was no felony murder rule instructions given and there were no natural and probable consequences instructions given."
The Legislature enacted Senate Bill 1437 (2017-2018 Reg. Sess.) 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 bill amended section 188, which defines malice, and section 189, which defines the degrees of to address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2 & 3.) It also added a new section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, § 4.)
Senate Bill 1437 (2017-2018 Reg. Sess.) redefined malice under section 188 to require that a principal acted with malice aforethought. Now, section 188, subdivision (a)(3) provides in relevant part: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a 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 was amended to include a new subdivision (e), which provides: "A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) 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, 13 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[; and] [¶] (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." (Stats. 2018, ch. 15, § 3.)
Newly enacted section 1170.95 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).)
In this case, an examination of the record shows that defendant cannot make a prima facie showing that he is entitled to relief under the provisions of section 1170.95. Here, defendant was convicted of second degree murder as an aider and abettor, and not under the felony murder or natural and probable consequences theories. Therefore, the trial court properly denied defendant's section 1170.95 petition. (See People v. Lewis (2021) 11 Cal.5th 952, 971-972 [trial court may consider record of conviction when determining whether a petitioner has a made a sufficient prima facie showing for relief 14 under section 1170.95]; id. at p. 972 [appellate opinions are generally considered to be part of the record of conviction]; People v. Soto (2020) 51 Cal.App.5th 1043, 1055 [jury instructions are part of the record of conviction], review granted on other grounds Sept. 23, 2020, S263939.) Here, based on the record of conviction in defendant's underlying case, the court properly determined defendant was statutorily ineligible for resentencing because his murder conviction was not based on the felony murder rule or the natural and probable consequences doctrine. Therefore, the court properly denied defendant's petition.
Next, although we denied defendant's motion to relieve appointed counsel in his personal brief, it appears that defendant is arguing his counsel rendered ineffective assistance of counsel (IAC). In order to establish a claim of IAC, a defendant must demonstrate that "(1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result. [Citations.] A 'reasonable probability' is one that is enough to undermine confidence in the outcome." (People v. Dennis (1998) 17 Cal.4th 468, 540-541.) Hence, an IAC claim has two components: deficient performance and prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 217.) If defendant fails to establish either component, his claim fails. An appellate court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Strickland v. Washington (1984) 466 U.S. 668, 697, 687-694.) Trial counsel's 15 performance is deemed reasonably competent unless the record does not provide an explanation for his performance, or"' "there simply could be no satisfactory explanation." '" (People v. Lopez (2008) 42 Cal.4th 960, 966.)
In this case, defendant failed to establish either component of his IAC claim. First, defendant failed to establish that his counsel's performance fell below the objective standard of reasonableness. Here, it appears that defendant is arguing his counsel rendered IAC because counsel filed a Wende brief and because counsel asked for two extensions to file his opening brief. Defendant's arguments fail because there was nothing defense counsel could have brought forth to change the fact that defendant was convicted for murder as an aider and abettor, and not under the felony murder or natural and probable consequences theories. Second, defendant also failed to establish that, but for his counsel's failure to more "adequately argue [his] cause of action and/or [his] Appeal," he would have obtained a more favorable result. Here, as discussed in detail ante, defendant is ineligible for relief as a matter of law under section 1170.95. Therefore, even if defense counsel had been more thorough, defendant would not have obtained a more favorable result
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. We are satisfied that defendant's attorney has fully complied with the responsibilities of counsel and no arguable issue exists. (Id. at p. 126; Wende, supra, 25 Cal.3rd at pp. 441-442.) 16
DISPOSITION
The trial court's order denying defendant's petition for resentencing is affirmed.
I concur: CODRINGTON J. 17
RAPHAEL, J., Concurring.
There is a simple reason why the trial court was correct to deny the Penal Code section 1170.95 petition for resentencing filed by Defendant and Appellant Joey Diaz. Section 1170.95 is a potential avenue for relief for those convicted on theories of murder where malice is imputed to them. Diaz was convicted of directly aiding and abetting a murder committed by his codefendant, requiring he intended the murder, with no jury instructions allowing imputed malice. Section 1170.95 does not apply to him.
Once the reason for affirming is understood, I do not know what the majority could be looking for when it "independently reviewed the record for potential error." (Maj. opn., ante, at p. 16.) We should not be doing this. The majority is following "the mandate of People v. Kelly (2006) 40 Cal.4th 106" (ibid.), but Kelly holds that "independent judicial review . . . applies only to a defendant's first appeal as of right." (People v. Kelly (2006) 40 Cal.4th 106, 119.) It does not apply to this postjudgment appeal. Under Kelly, an appellate court must review the entire record and issue a written opinion. (Id. at p. 123.) That makes sense to do on direct appeal when there are a wide range of potential issues that a court might find anywhere in the record. In this narrow postjudgment appeal, we can readily ascertain the answer. Once we do that, scrutiny of the entire record is not required, and it makes no sense. (See People v. Scott (2020) 58 Cal.App.5th 1127.) 18