Opinion
B303252
08-11-2020
THE PEOPLE, Plaintiff and Respondent, v. HECTOR DIAZ, Defendant and Appellant.
Teresa Biagini, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. VA141740) APPEAL from an order of the Superior Court of Los Angeles County, Olivia Rosales, Judge. Affirmed. Teresa Biagini, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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The jury found defendant and appellant Hector Diaz guilty of two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2) [counts 1 and 2]), two counts of felon in possession of a firearm (§ 29800, subd. (a)(1) [counts 3 and 7]), and one count of unlawful possession of ammunition (§ 30305, subd. (a)(1) [count 4]). The jury found Diaz discharged a firearm proximately causing great bodily injury (§ 12022.7, subd. (a)) in count 1, and personally and intentionally used a firearm in counts 1 and 2 (§ 12022.5, subds. (a), (d)). It further found that Diaz committed the crimes in counts 1, 2, and 7 for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1)(C).) Diaz admitted to suffering a prior conviction for a serious felony within the meaning of section 667, subdivision (a)(1), and a prior serious or violent felony conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
All further statutory references are to the Penal Code unless otherwise indicated.
There were no counts 5 and 6 listed in the operative information.
The jury found the gang enhancements alleged in counts 3 and 4 not true.
Diaz was sentenced to state prison for a total of 26 years, comprised of the upper term of 4 years in count 1, which was doubled to 8 years as a second strike, plus 3 years for the great bodily injury enhancement, 10 years for the related gun use, and 5 years for the prior serious felony conviction. Diaz was sentenced to the middle term of 3 years in count 2, which was doubled to 6 years as a second strike, plus an additional 4 years for the related gun use, for a total of 10 years to run concurrently with the sentence in count 1. The trial court stayed imposition of sentence on the gang enhancements in connection with counts 1 and 2. The trial court imposed and stayed concurrent terms of two years each in counts 3, 4, and 7, pursuant to section 654.
The abstract of judgment did not include the gang enhancement in count 7, which the trial court did not address at the sentencing hearing. We later struck the gang enhancements, so it was not necessary to correct the oversight. --------
On appeal, Diaz contended, among other things, that the evidence was insufficient to support the gang enhancement findings and that remand was necessary to allow the trial court to exercise its discretion to strike the firearm enhancements under section 12022.5, subdivisions (a) and (d) in counts 1 and 2 pursuant to Senate Bill 620 and to strike the prior conviction enhancement under section 667, subdivision (a)(1), pursuant to Senate Bill 1393.
The Attorney General conceded that the matter should be remanded to allow the trial court an opportunity to exercise its discretion to strike the firearm enhancements, but otherwise contested Diaz's claims.
We struck the gang enhancements under section 186.22, subdivision (b)(1)(C) for insufficient evidence, and remanded the matter to permit the trial court the option to exercise its discretion to strike Diaz's firearm and prior conviction enhancements within the confines of section 1385, pursuant to Senate Bill 620 and Senate Bill 1393. We affirmed the judgment in all other respects.
On October 7, 2019, Diaz filed a re-sentencing brief, arguing that his post-conviction behavior merited striking the enhancements. On October 16, 2019, the People opposed striking the enhancements, arguing that Diaz had a long criminal history of increasing severity and performed poorly on parole. Additionally, the violent nature of Diaz's crime demonstrated that he was a violent person who posed a serious danger to society.
At a hearing on January 29, 2020, the trial court considered the mitigating and aggravating factors and decided not to exercise its discretion to strike the firearm and prior conviction enhancements. The court again imposed a total term of 26 years in state prison. Diaz appealed.
We appointed counsel. After reviewing the record, counsel filed an opening brief asking this court to review the record independently pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende). On April 16, 2020, we advised Diaz that he had 30 days to submit any contentions or issues he wished us to consider. No response has been received to date.
We have examined the entire record. We are satisfied no arguable issues exist and that Diaz's counsel has fully satisfied her responsibilities under Wende. (Smith v. Robbins (2000) 528 U.S. 259, 279-284; Wende, supra, 25 Cal.3d at p. 441.)
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.