Opinion
H051476
04-10-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSE GUADALUPE DIAZ, Defendant and Appellant.
NOT TO BE PUBLISHED
(Monterey County Super. Ct. No. SS150109A)
Before Greenwood, P. J., Bamattre-Manoukian, J., and Wilson, J.
Jose Guadalupe Diaz appeals from an order denying his petition for resentencing pursuant to Penal Code section 1172.6, under which a person convicted of felony murder or murder under the natural and probable consequences doctrine may seek to have their conviction vacated in specified circumstances. Counsel filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), and Diaz subsequently filed supplemental briefs on his own behalf. For the reasons set forth below, we affirm the order.
All statutory references are to the Penal Code.
I. Factual and Procedural Background
The underlying facts are not relevant to the issue raised on appeal.
In 2016, Diaz pled no contest to first degree murder. (§ 187, subd. (a), count one.) Diaz admitted an enhancement based on allegations that the offense was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1), (5).) Diaz indicated, and the trial court found, that a report from the Salinas Police Department provided the factual basis for his plea. In a written waiver of rights signed by Diaz, he stated, "I agree and stipulate that there is a factual basis for all charges, special allegations and enhancements to which I am pleading guilty. While driving my vehicle I maneuvered so that a fellow gang member passenger could shoot and kill a suspected rival gang member. This murder was done willfully, and with premeditation and deliberation. It was committed for the benefit of and in association with the Sureno [sic] criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members." At the plea hearing, the trial court asked Diaz if he agreed with the factual statement set forth in waiver form, to which Diaz responded, "Yeah."
Pursuant to the terms of Diaz's plea agreement, the trial court sentenced him to an indeterminate term of 25 years to life in prison, dismissing the remaining counts and enhancements.
In 2023, Diaz filed a petition pursuant to section 1172.6, stating that: 1) the complaint or information filed against him allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine, or another theory by which malice was imputed to Diaz based solely on his participation in a crime; 2) he was convicted of murder; and, 3) he could not presently be convicted of murder due to changes made to sections 188 and 189, effective January 1, 2019. The court appointed counsel and set a hearing to determine if Diaz made the required prima facie showing. (§ 1172.6, subd. (c).)
"Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (20172018 Reg. Sess.) 'to amend the felony murder rule and the natural and probable consequences doctrine . . . 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).)" (People v. Porter (2022) 73 Cal.App.5th 644, 649.) This resulted in amendments to sections 188 and 189. Senate Bill No. 775 (2021-2022 Reg. Sess; Stats. 2021, ch. 551), further clarified the Legislature's intent and made additional amendments to what is now section 1172.6. (Porter, at pp. 651-652.)
The prosecution opposed the petition, arguing that the "record of conviction irrefutably shows that the Petitioner was prosecuted as an aider an abettor to the crime of express malice murder for the benefit of the Sureno [sic] Criminal Street Gang," and was not eligible for resentencing under section 1172.6. While the prosecution conceded that the charges in the information would have allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine, it argued that Diaz had not demonstrated that he could not presently be convicted of murder because of changes to section 188 or 189 made effective January 1, 2019, as required by section 1172.6, subdivisions (a)(3) and (c). In so doing, the prosecution relied on the statement Diaz made in the written waiver of rights, indicating he maneuvered the vehicle he was driving "so that a fellow gang member passenger could shoot and kill a suspected rival gang member[,]" which Diaz admitted "was done willfully, and with premeditation and deliberation." Because Diaz admitted culpability, the prosecution argued that he could not have been convicted under the felony murder rule or natural and probable consequences doctrine.
Diaz argued that the record of conviction did not conclusively show that he was ineligible for relief under section 1172.6 as a matter of law, claiming that his admission that he drove the subject vehicle only demonstrated that he was a participant in the shooting, not that he had the required intent to be prosecuted on a theory of aiding and abetting rather than a theory that imputed malice based solely on his participation in the crime.
Relying on Diaz's signature endorsing the statements made in the written waiver of rights, coupled with his verbal agreement at the plea hearing that the written statements were true, the trial court determined, after a hearing, that Diaz did not make a prima facie showing of eligibility for resentencing under section 1172.6, and denied his petition without issuing an order to show cause. Diaz timely filed a notice of appeal.
In its opposition to the resentencing petition, the prosecution asked the trial court to consider the transcript of a voluntary interview Diaz gave to law enforcement officials. Diaz objected to the request. The trial court did not cite the interview as a basis for denying the resentencing petition, and Diaz did not reference the interview in either of his supplemental briefs.
On appeal, counsel filed an opening brief pursuant to the procedure set forth in Delgadillo, supra, 14 Cal.5th at pages 231-232. We notified Diaz that he could file a supplemental brief on his own behalf, and that failure to do so would result in dismissal of the appeal as abandoned. (Id. at p. 232.) Diaz filed two supplemental briefs, each of which raises the same arguments. First, Diaz asks to have new counsel appointed for him, contending that his communication with counsel by mail was insufficient for Diaz to address his concerns. Second, Diaz argues that resentencing was appropriate because: he was 18 years old at the time of the crime and "under new law [has] Youth Offender Criteria"; he claims his statements were made under duress and before "SB 1437/1170/775" were in effect; he did not understand the proceedings at the time of his plea hearing due to failings on the part of trial counsel; he was the driver of the vehicle, not the shooter; and he did not previously have a criminal record. Having reviewed the supplemental briefs, we conclude that Diaz does not raise an arguable issue on appeal. Accordingly, we affirm the trial court's order.
In context, we presume Diaz's reference to Senate Bill No. 1170 is a reference to Penal Code section 1170, as none of the bills enumerated 1170 that were enacted by the Senate after Diaz's conviction apply to Diaz's circumstances. Diaz did not raise section 1170 in the trial court. Amendments to the statute enacted after Diaz's conviction require the trial court to impose the lower term of a determinate sentence when the defendant is a youth as defined by section 1016.7 at the time of commission of the offense. (§ 1170, subd. (b)(6)(C).) Diaz was sentenced to an indeterminate term, such that section 1170 does not apply to his case, and thus does not constitute an arguable issue on appeal.
II. Discussion
An issue is arguable if it has a reasonable potential for success, and, if resolved favorably for the appellant, the result will either be a reversal or a modification of the judgment. (People v. Johnson (1981) 123 Cal.App.3d 106, 109 (Johnson).)
Diaz contends he received ineffective assistance from the attorney appointed to represent him in the instant appeal, and from his trial counsel in negotiating the plea agreement. Ineffective assistance of appellate counsel is not a cognizable argument on appeal. An appellant must raise this claim either in a motion to relieve counsel or in a separate petition for writ of habeas corpus. (See In re Reno (2012) 55 Cal.4th 428, 487488.) For the sake of expediency, we will treat the contentions regarding appellate counsel as a motion to relieve counsel and address the argument substantively here.
To show ineffective assistance of counsel, an appellant must show that counsel's performance was deficient, falling below an objective standard of reasonableness, and that appellant was prejudiced thereby. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) The act of filing a no-issues brief does not, in and of itself, constitute ineffective assistance of counsel. (See People v. Serrano (2012) 211 Cal.App.4th 496, 500, 503 (Serrano) [attorney satisfies ethical duties by filing no-issues brief and does not need to withdraw as counsel before doing so].) Diaz contends counsel did not contact him by appropriate means, such as an in-person contact, video conference, or telephone call, by which they could "deliberate and have [his] questions answered." Counsel's contact only by mail left Diaz feeling "in the dark." Diaz has not demonstrated that appellate counsel's performance was deficient or below an objectively reasonable standard. Even if it was, Diaz does not identify any prejudice that he suffered as a result of counsel's conduct. He has not set forth a basis in his supplemental briefs to relieve counsel.
Diaz's argument that his trial counsel was ineffective is not timely, as it was cognizable only on appeal from the original judgment of conviction, or by a writ of habeas corpus. (See People v. Soriano (1987) 194 Cal.App.3d 1470, 1477.) While a defendant who pleads no contest may challenge the judgment of conviction based on the legality of the proceedings or the validity of the plea, the defendant must do so within 60 days of entry of the judgment after following the procedure set forth in section 1237.5. (Cal. Rules of Court, rule 8.308(a); see People v. Mendez (1999) 19 Cal.4th 1084, 10941095 (Mendez).) There is no indication in the briefs filed by counsel or Diaz that Diaz raised ineffective assistance of counsel in the trial court or by a timely notice of appeal or writ of habeas corpus following the judgment of conviction. He cannot now seek review of trial counsel's conduct in the instant appeal from an order denying resentencing under section 1172.6.
In addition to raising concerns about trial and appellate counsel, Diaz argues that the statements relied upon by the trial court to deny his resentencing petition were made under duress, and suggests they were not knowingly or intelligently made. These are claims that should have been raised in a timely challenge to the judgment. (Cal. Rules of Court, rule 8.308(a); see Mendez, supra, 19 Cal.4th at pp. 1094-1095.) There is no indication in the briefs filed by counsel or Diaz that Diaz challenged the validity of the plea at any time in the trial court, or challenged the legality of the proceedings by a timely notice of appeal from the judgment of conviction. These are not arguable issues to raise in the instant appeal.
Diaz's contentions that he was eligible for resentencing because he was the driver of the vehicle, not the shooter, and because he did not have a prior criminal record do not raise an arguable issue on appeal. Under sections 188 and 189 an individual who was not the actual killer can be still be convicted of first degree murder, despite the legislative changes effected by Senate Bill numbers 1437 and 775, and despite the fact the person did not have a prior criminal record. (See People v. Gentile (2020) 10 Cal.5th 830, 848 ["Senate Bill 1437 does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought."].) Diaz admitted premeditation and intent in the written waiver of rights filed in conjunction with his no contest plea, and verbally endorsed his written admission in his oral colloquy with the trial court at the time he entered his plea. Diaz has not identified a factual or legal error committed by the trial court that has a reasonable potential for success and would result in reversal or modification of the judgment. (Johnson, supra, 123 Cal.App.3d at p. 109.)
"(1) Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature. [¶] . . . [¶] (2) 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." (§ 188, subd. (a).) Pursuant to section 189, subdivision (e), "[a] participant in the perpetration or attempted perpetration of a felony . . . in which a death occurs is liable for murder only if . . . [¶] . . . [¶] (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."
Because Diaz raises no arguable issue in his supplemental briefs, we affirm the trial court's post-conviction order. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
III. Disposition
The order denying Diaz's resentencing petition is affirmed.