Opinion
E082315
03-18-2024
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ALLAN DIAZ, Defendant and Appellant.
Matthew Aaron Lopas, 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NOT TO BE PUBLISHED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. BAF1600808. John D. Molloy, Judge.
Matthew Aaron Lopas, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I.
INTRODUCTION
Defendant and appellant Michael Allan Diaz appeals from the trial court's postjudgment order denying his petition for resentencing of his voluntary manslaughter conviction (Pen. Code, § 192, subd. (a)) under section 1172.6 (formerly section 1170.95). 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 (Anders), requesting this court to conduct an independent review of the record. In addition, defendant has had an opportunity to file a supplemental brief with this court and has not done so. For the reasons explained below, we exercise our discretion to conduct an independent review of the record and affirm the judgment. (People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo).)
All future statutory references are to the Penal Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the preliminary hearing transcript, which is attached as Exhibit 2 to the People's memorandum of points and authorities in support of defendant's ineligibility finding.
Jason Wasson was shot with a shotgun in October 2013. In August 2014, law enforcement searched defendant's vehicle at the Soboba Casino and found a sawed-off short barrel shotgun (.410 gauge) in the trunk of the vehicle. Officers also located a handgun loaded with eight rounds of .40 caliber ammunition inside a black nylon bag in the vehicle. Joshua Button, an investigator with the Riverside County Sheriff's Department, interviewed defendant concerning Wasson's murder as he was the prime suspect. Defendant's girlfriend used to date Wasson. Defendant denied any involvement in the murder.
On June 16, 2016, defendant was in local custody on an unrelated matter. On this date, Investigator Button set up an operation in which a paid government agent was placed into the same jail cell as defendant and their conversation was monitored and recorded by law enforcement. The paid agent was fully briefed on the circumstances of the shooting of Wasson. Investigator Button monitored and listened to this conversation while it was occurring.
Defendant initially expressed surprise to the agent that it was actually Wasson who allegedly ran up to his car, as defendant was expecting it to be his girlfriend who used to date Wasson. The agent asked defendant, "'What was that fool expecting when he walked up to your car?, '" to which defendant responded, "'He came running up and I gave it to him, Dog.'" Defendant later recounted various details of his shooting Wasson, including how he wrestled a sawed-off shotgun away from Wasson and shot him in purported self-defense after Wasson had previously threatened to kill him and pointed the barrel of the gun inside his car. Defendant then described how he twisted the shotgun away from Wasson, describing that he "just pulled [Wasson], spun it and the gauge [shotgun] went off." When the agent asked defendant if he was trying to kill Wasson, defendant stated "No, I wasn't" and that it was not planned. Towards the end of their conversation, defendant stated "'I blasted him [Wasson] and he flew back." Immediately thereafter defendant asked the agent if he was an informant and Investigator Buttons removed the agent from the jail cell. The parties stipulated that Wasson's cause of death was a shotgun wound to the chest.
Following the preliminary hearing, on July 6, 2017, an information was filed charging defendant with murder (§ 187, subd. (a); count 1) while personally and intentionally discharging a firearm causing great bodily injury and death (§ 12022.53, subd. (d)) and three counts of possession of a firearm by a prohibited person (§ 29800, subd. (a)(1); counts 2-4). The information also alleged that defendant had suffered a prior prison term (§ 667.5, subd. (b)), a prior serious felony conviction (§ 667, subd. (a)), and a prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).) On August 30, 2018, the information was amended by interlineation to add a charge of voluntary manslaughter (§ 192, subd. (a); count 5) with a firearm use enhancement (§ 12022.5, subd. (a)). Pursuant to a negotiated plea agreement, defendant thereafter pled guilty to count 5, voluntary manslaughter, and admitted the firearm enhancement allegation. In return, the remaining charges and enhancement allegations were dismissed, and defendant was sentenced to a stipulated term of 21 years in state prison (the upper term of 11 years for the voluntary manslaughter plus a consecutive term of 10 years for the firearm use enhancement). The trial court awarded defendant 341 (297 actual plus 44 conduct) days credit for time served under section 2933.1.
On January 13, 2022, defendant in propria persona filed a form petition for resentencing under former section 1170.95. Defendant checked boxes on the form stating (1) the information filed in his case "allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine," (2) he was "convicted of murder, attempted murder, or manslaughter following a trial or [he] accepted a plea offer in lieu of a trial at which [he] could have been convicted of murder or attempted murder," and (3) "[he] could not presently be convicted of murder or attempted murder because of changes made to [sections] 188 and 189, effective January 1, 2019." Defendant requested appointment of counsel.
On February 4, 2022, the trial court appointed counsel to represent defendant.
On December 9, 2022, the People and defense counsel stipulated to the issuance of an order to show cause and a hearing was set.
On September 6, 2023, the People filed a memorandum of points and authorities in support of ineligibility finding and requested the court deny the petition prior to the order to show cause hearing. Specifically, the People argued defendant's record of conviction established he was ineligible as a matter of law because "the evidence on the record clearly" demonstrated defendant was the actual killer.
A hearing was held on October 6, 2023. At that time, the People requested the court conduct a bifurcated hearing wherein the court would first revisit the prima facie determination of eligibility and then, if necessary, proceed to an evidentiary hearing. Defendant's counsel did not object. The trial court reviewed the plea form and the People's memorandum of points and authorities, which included the preliminary hearing transcript, and noted defendant's record of conviction suggests that he is ineligible for relief. The court noted its belief that case law "stands for the proposition that the Court would consider the evidence produced at the preliminary hearing for some questions" at the prima facie stage. The court stated that included in the preliminary hearing transcript was recorded communications through a jailhouse agent and a subsequent interview of defendant.
The trial court considered the preliminary hearing transcript in its prima facie determination discussing People v. Pickett (2023) 93 Cal.App.5th 982, review granted Oct. 11, 2023, S281643, and People v. Patton (2023) 89 Cal.App.5th 649, review granted Jun. 28, 2023, S279670.
The court explained that the record of conviction, when the preliminary hearing is examined, demonstrates that defendant "is the actual slayer" and thus "refutes his averments in a petition for relief pursuant to [section] 1172.6" and denied the petition for resentencing. The court pointed out the question was whether or not it was self-defense and there was "never a question about natural and probable consequences or aiding and abetting or felony murder." The court then asserted, "[s]upposing that Pickett and Patton get taken up . . . [and] they are incorrect," and inquired if defense counsel had any additional evidence to present, to which counsel responded, "No, Your Honor." The court explained that the evidence was unrefuted and "overwhelmingly point[s] to the conclusion that he was the actual slayer . . . [thus the] People have demonstrated beyond a reasonable doubt that the defendant is guilty of what he was convicted of, which is voluntary manslaughter." Defendant timely appealed.
III. DISCUSSION
After defendant appealed, appointed appellate counsel filed a brief under the authority of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a statement of the case and a summary of the procedural background. Counsel considered potential issues on appeal but found no specific arguments as grounds for relief, and requests that we exercise our discretion and independently examine the appellate record for any arguable issues. Under Anders, which requires "a brief referring to anything in the record that might arguably support the appeal" (Anders, supra, at p. 744), counsel raises the issues of whether (1) the trial court erred by allowing the prosecutor to argue at the show-cause hearing that defendant was ineligible as a matter of law; (2) the trial court abused its discretion by considering the preliminary hearing transcript when it was not stipulated to as a factual basis for the plea; and (3) whether he is eligible for presentence custody credits under section 2900.5, subdivision (a) for the period of time he wore an ankle monitor.
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
In Delgadillo, supra, 14 Cal.5th 216, the California Supreme Court held that Wende and Anders procedures do not apply in appeals from the denial of a section 1172.6 postjudgment petition. (Delgadillo, supra, at pp. 224-226.) Thus, we need not examine the entire record ourselves to look for arguable grounds for reversal. Because defendant's counsel filed a brief raising no issues, and defendant was given an opportunity to file a personal supplemental brief but declined, we may dismiss the appeal as abandoned. (Id. at pp. 230-232.) "Independent review in Wende appeals consumes substantial judicial resources," and "[t]he state . . . has an interest in an 'economical and expeditious resolution' of an appeal from a decision that is 'presumptively accurate and just.'" (Id. at p. 229.)
We, however, have discretion to conduct Wende review even when it is not required. (Delgadillo, supra, 14 Cal.5th at p. 232.) In this case, independent review of the record by this court is particularly appropriate. Upon receipt of appointed appellate counsel's no-issues brief submitted on behalf of defendant, the clerk of this court sent to defendant a "Delgadillo notice." That notice cited Delgadillo, and correctly informed defendant (i) that this court is not required to conduct an independent review of the record in appeals from postconviction proceedings, and (ii) that failure to timely file a supplemental brief may result in dismissal of his appeal as abandoned.
The brief filed by defendant's counsel and served on defendant, however, does not mention Delgadillo. It instead states, "[t]he applicable law in this case is . . . Wende[, supra, ] 25 Cal.3d 436 and Anders[, supra, ] 386 U.S. 738." (Italics added.) Counsel's declaration avers that he wrote to defendant and informed him of his intention to ask this court for an independent review of the record pursuant to the procedures that are specified in Anders and Wende. Counsel also advised defendant of his right to file a supplemental brief, but there is no indication in counsel's declaration that he explained to defendant that this court is not required to independently review the record and that failure to file a brief might result in dismissal of his appeal as abandoned.
There is an important distinction between the procedures afforded by reviewing under Anders/Wende and those employed pursuant to Delgadillo. Under Anders/Wende, independent review by the reviewing court occurs automatically, irrespective of whether a defendant files a supplemental brief; under Delgadillo, record review is discretionary and, if the defendant does not file a supplemental brief, the reviewing court may simply issue an order dismissing the appeal as abandoned. (Delgadillo, supra, 15 Cal.5th 232233.) When the Delgadillo procedures apply to an appeal but the reviewing court's notice to a defendant of the right to file a supplemental brief refers only to Anders and Wende, the notice may be suboptimal if the defendant could reasonably have concluded the court would independently review the record even absent a supplemental brief. (Delgadillo, supra, at p. 233.)
In this case, this court properly sent a Delgadillo notice to defendant, but it is reasonably probable that defendant may have been confused by, or even relied upon, the incorrect information provided by his counsel that the Anders/Wende procedures apply to his appeal. Under these circumstances, we believe it particularly important for this court to conduct an independent review of the record on appeal.
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders, supra, 386 U.S. at p. 744.) We have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
"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, 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.' [Citation.] In addition to substantively amending sections 188 and 189 . . ., Senate Bill [No.] 1437 added [former] section 1170.95, [now section 1172.6, ] which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (People v. Lewis (2021) 11 Cal.5th 952, 959.) In Lewis, our Supreme Court held, "[t]he record of conviction will necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (People v. Lewis, supra, at p. 971.)
The trial court here properly denied defendant's resentencing petition for failure to make a prima facie showing of entitlement to relief under section 1172.6 because defendant's record of conviction shows he was the actual killer. It is well settled that section 1172.6 precludes relief as a matter of law where the record of conviction shows a defendant was the sole perpetrator and actual killer. In Delgadillo, for example, our Supreme Court determined that the defendant was "not entitled to any relief under section 1172.6" because he "was the actual killer and the only participant in the killing." (Delgadillo, supra, 14 Cal.5th at p. 233; see also People v. Garcia (2022) 82 Cal.App.5th 956, 969 [affirming denial of resentencing because the record of conviction "unequivocally establishes" the defendant was the sole perpetrator and the actual killer]; People v. Harden (2022) 81 Cal.App.5th 45, 47-48 [petition for resentencing may be summarily denied when, without factfinding, weighing conflicting evidence, or making credibility determinations, the record of conviction irrefutably establishes as a matter of law that the jury determined the defendant was the actual killer].)
There was no evidence here of aiding and abetting, felony murder, natural and probable consequences, or any other theory by which malice could be imputed to defendant. Defendant admitted to solely shooting the victim. As the actual killer, defendant is not entitled to relief as a matter of law. (§ 1172.6; Delgadillo, supra, 14 Cal.5th at p. 233.) To be eligible for relief under section 1172.6, the petitioner must make a prima facie showing that he or she "could not presently be convicted of murder . . . because of changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(3).) Defendant cannot make this showing. The trial court correctly denied defendant's section 1172.6 petition for resentencing.
IV. DISPOSITION
The trial court's postjudgment order denying defendant's section 1172.6 petition for resentencing is affirmed.
We concur: McKINSTER Acting P. J., FIELDS J.