Filed 6/3/22 P. v. Diego CA2/5

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

PEDRO ALBERTO DIEGO,

Defendant and Appellant.

 B303304

 (Los Angeles County

 Super. Ct. No.

YA000719)

APPEAL from an order of the Superior Court of Los 

Angeles County, Hector M. Guzman, Judge. Vacated and 

remanded.

Lynda A. Romero, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance 

E. Winters, Chief Assistant Attorney General, Susan Sullivan 

Pithey, Senior Assistant Attorney General, Charles S. Lee, Wyatt 
2

E. Bloomfield and John Yang, Deputy Attorneys General, for 

Plaintiff and Respondent.

A jury convicted defendant and appellant Pedro Alberto 

Diego (defendant) on murder and attempted murder charges, 

among others. Defendant petitioned the trial court to vacate his

first degree murder conviction pursuant to Penal Code section 

1170.95.

1

 The trial court appointed counsel for defendant and 

denied his petition. This court initially affirmed, but after 

passage of Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB 775), 

our Supreme Court granted review and returned the cause to us 

for further consideration. There is now no real dispute between

the parties: defendant does not challenge the correctness of our 

prior holding that defendant’s murder convictions are not subject 

to vacatur under section 1170.95 and the Attorney General 

concedes defendant’s attempted murder convictions may qualify 

for section 1170.95 relief.

I. BACKGROUND2

The Los Angeles County District Attorney charged 

defendant in an information with two counts of murder: the 

murder of Charles Long (count one) and the murder of Renee 

Johnson (count seven). The information alleged a multiple 

murder special circumstance (§ 190.2, subd. (a)(3)) as to 

1 Undesignated statutory references are to the Penal Code.

2 Defendant moved us to judicially notice the appellate 

record in his direct appeal from his convictions (Case Number 

B059660). We previously granted that motion and we do so again 

for purposes of resolving this appeal on remand from our 

Supreme Court.
3

defendant, but not as to his co-defendant Bennie Bellfield—who 

was not charged with the murder of Long in count one. In 

addition to the murder charges, defendant was charged with two 

counts of premeditated attempted murder pertaining to two other

victims (counts eight and nine). There were other charged 

offenses as well, but they are not relevant for our purposes.

Defendant’s jury was instructed on the natural and 

probable consequences doctrine only in connection with the 

attempted murder charges in counts eight and nine. As to the 

murder charges, the jury was instructed on principles of direct 

aiding and abetting only. The multiple murder special 

circumstance instruction given to the jury required it to find 

defendant had the intent to kill Johnson (the victim alleged in 

count seven of the information) to find the special circumstance 

allegation true.

3

The jury convicted defendant on each of the aforementioned 

murder and attempted murder charges; the jury found the 

murder of Johnson (count seven) was first degree murder and the 

murder of Long (count one) was second degree murder. The jury 

also found the alleged multiple murder special circumstance true. 

The jury fixed defendant’s penalty at life in prison without 

possibility of parole, and that is the sentence the trial court 

imposed (with other particulars that are not relevant for our 

3 The court’s instruction, patterned on CALJIC No. 8.80, 

stated: “As to Count 7, [i]f you find beyond a reasonable doubt 

that defendant Diego was an aider or abettor then you must also 

find beyond a reasonable doubt that defendant Diego with intent 

to kill aided and abetted an actor in commission of the murder in 

the first degree, in order to find the special circumstance to be 

true.”
4

purposes). This court affirmed the judgment on direct appeal. 

(People v. Diego et al. (Aug. 10, 1993, B059660) [nonpub. opn.]

(Diego I).)

Many years later, defendant filed a section 1170.95 petition 

for resentencing. Defendant, by checking boxes on a pre-printed 

form, asserted he was convicted of first or second degree murder 

pursuant to the felony murder rule or the natural and probable 

consequences doctrine but could no longer be convicted of murder 

because of changes made to the Penal Code by Senate Bill No.

1437 (2017-2018 Reg. Sess.). The trial court appointed counsel to 

represent defendant.

The prosecution opposed defendant’s petition and argued, 

among other things, that defendant was ineligible for section 

1170.95 relief because he was victim Long’s actual killer and a 

direct aider and abettor in the murder of victim Johnson. 

Defendant’s reply brief conceded he was not seeking to vacate his 

second degree murder conviction for killing Long; he sought relief 

only as to his first degree murder conviction for killing Johnson. 

The reply made no mention of defendant’s attempted murder 

convictions.

The trial court denied defendant’s petition based on its 

conclusion that he was ineligible for relief as a matter of law. 

The court found defendant was not entitled to resentencing on his

first degree murder conviction because Diego I established he was 

convicted as a direct aider and abettor, not pursuant to the felony 

murder rule or the natural and probable consequences doctrine. 

Though defendant’s briefing had not presented any other issue 

for decision, the trial court additionally found defendant was not 

entitled to resentencing on his second degree murder conviction—

because he was victim Long’s actual killer—or his attempted 
5

murder convictions—because section 1170.95 did not authorize 

relief for attempted murder.

As already discussed, we affirmed the trial court’s order,

but our Supreme Court returned the matter to us with directions 

to vacate our decision and reconsider the cause in light of SB 775 

and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). We vacated 

our prior opinion and now consider the matter anew.

II. DISCUSSION

The trial court’s ruling was correct when made, but SB 775 

changes things. It is still true that defendant’s murder 

convictions are not subject to vacatur under section 1170.95 

because the jury instructions given at defendant’s trial leave no 

doubt he was convicted of murder as a direct aider and abettor, 

not on a felony murder or natural and probable consequences 

theory. Defendant’s attempted murder convictions, however, 

may qualify for section 1170.95 relief because his jury was 

instructed on the natural and probable consequences doctrine as 

to those convictions and SB 775’s amendments make those 

convicted of attempted murder on a natural and probable 

consequences theory eligible for resentencing.

A. Murder

As the judicially noticed portions of the record from 

defendant’s direct appeal confirm, defendant’s jury was not 

instructed on felony murder and the natural and probable 

consequences instruction the jury did receive was expressly 

limited to the attempted murder charges in counts eight and 

nine. That means the jury could have convicted defendant of 
6

Johnson’s murder only as a direct aider and abettor,4and that

means he is ineligible for section 1170.95 relief as to his first 

degree murder conviction as a matter of law. (§ 1170.95, subd. 

(a)(3); People v. Verdugo (2020) 44 Cal.App.5th 320, 330 [the 

record of conviction may establish that defendant “is ineligible for 

relief as a matter of law because he or she was convicted on a 

ground that remains valid notwithstanding Senate Bill 1437’s 

amendments to sections 188 and 189”], disapproved on another 

ground by Lewis, supra, 11 Cal.5th 952; People v. Martinez (2019) 

31 Cal.App.5th 719, 723 [“Senate Bill 1437 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))”], 

italics added; see also People v. Smith (2020) 49 Cal.App.5th 85, 

92 [“If it is clear from the record of conviction that the petitioner 

cannot establish eligibility as a matter of law, the trial court may 

deny the petition”], review granted July 22, 2020, S262835.)

B. Attempted Murder

Before enactment of SB 775, the Courts of Appeal 

overwhelmingly held section 1170.95 does not authorize vacating

attempted murder convictions. The trial court relied on this

authority in finding defendant was not entitled to be resentenced 

on his attempted murder convictions.

4 The jury’s true finding on the multiple murder special 

circumstance confirms the same.
7

SB 775, however, amends section 1170.95 to “[c]larif[y] that 

persons who were convicted of attempted murder or 

manslaughter under a theory of felony murder and the natural 

probable consequences doctrine are permitted the same relief as 

those persons convicted of murder under the same theories.” 

(Stats. 2021, ch. 551, § 1, subd. (a).). The Attorney General 

concedes a remand is accordingly required to permit the trial 

court to “conduct prima facie proceedings under section 1170.95, 

subdivision (c), as to the attempted murder counts and issue an 

order to show cause if necessary.” The concession is appropriate, 

and we will remand the matter for further proceedings as to 

defendant’s attempted murder convictions.
8

DISPOSITION

The trial court’s order denying defendant’s section 1170.95 

petition is vacated. The cause is remanded with directions to 

reappoint counsel for defendant; to permit appointed counsel to 

file an amended section 1170.95 petition; and to issue an order to 

show cause under section 1170.95, subdivision (c), and thereafter 

proceed as required by section 1170.95, subdivision (d), only 

insofar as the amended petition seeks to vacate defendant’s 

attempted murder convictions (and to deny relief insofar as the 

amended petition seeks to vacate defendant’s murder 

convictions). 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

KIM, J.