Filed 4/21/21 P. v. Diego CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

YA000719-01)

APPEAL from an order of the Superior Court of Los 

Angeles County, Hector M. Guzman, Judge. Affirmed. 

Lynda A. Romero, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

Xavier Becerra, Attorney General, Lance E. Winters, Chief

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Charles S. Lee and John Yang, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

In 1991, a jury convicted defendant and appellant Pedro 

Alberto Diego (defendant) on murder and attempted murder 

charges, among others. More recently, defendant petitioned the 

trial court to vacate his first degree murder conviction and both 

of his attempted murder convictions pursuant to Penal Code 

section 1170.951and related amendments made by Senate Bill 

No. 1437 (2017-2018 Reg. Sess.) (SB 1437). The trial court 

appointed counsel for defendant and denied his petition. We 

consider whether the trial court correctly concluded defendant is 

ineligible for section 1170.95 relief as a matter of law, and this 

reduces to two specific questions: (1) could the jury have found 

him guilty of first degree murder on a natural and probable 

consequences theory, and (2) does section 1170.95 authorize relief 

not just for murder convictions but for attempted murder 

convictions?

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 

1 Undesignated statutory references are to the Penal Code.

2 Defendant moves us to judicially notice the appellate record 

in his direct appeal from his convictions (Case Number B059660) 

and submits electronic copies of volumes one and two of the 

clerk’s transcript and volumes 26 and 27 of the reporter’s 

transcript from that prior appeal. Defendant’s motion is granted 

as to the excerpts of the record provided with his motion (Cal. 

Rules of Court, rule 8.252(a)(3)), and we rely on those excerpts in 

setting forth the pertinent background facts for this appeal.
3

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

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—but 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 charges; the jury found the murder of 

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

Long 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 

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

particulars that are not relevant for our purposes). This court 

affirmed the judgment on direct appeal. (People v. Diego et al. 

(Aug. 10, 1993, B059660) [nonpub. opn.] (Diego I).)

After passage of SB 1437 in 2018, 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 by SB 1437. The 

trial court appointed counsel to represent defendant.

The prosecution opposed defendant’s petition and argued 

SB 1437 is unconstitutional and defendant is ineligible for section 

1170.95 relief regardless 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, only 

his first degree murder conviction for killing Johnson. The reply 

made no mention of his attempted murder convictions.

The trial court heard the arguments of counsel at a hearing

and later issued an order denying 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 does not authorize 

relief for attempted murder).

 

II. DISCUSSION

The challenged trial court ruling—that defendant is 

ineligible for section 1170.95 relief as a matter of law—is correct, 

even if part of the court’s rationale unnecessarily relied on 

statements made in Diego I. The jury instructions given at 

defendant’s trial leave no doubt defendant was convicted of 

murder as a direct aider and abettor, which is a ground that 

remains valid notwithstanding SB 1437’s amendments to the 

Penal Code’s murder statutes. In addition, and assuming for 

argument’s sake that the question of relief for defendant’s 

attempted murder convictions is properly before us, we follow 

precedent holding section 1170.95 does not authorize relief for 

attempted murder convictions.

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 him of 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 

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

circumstance confirms the same.
6

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”], review granted Mar. 18, 2020, S260493; 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 Jul. 22, 2020, S262835.)

As for defendant’s attempted murder convictions, the trial 

court found section 1170.95 does not authorize vacatur of such 

convictions, relying on appellate precedent so holding. That is 

right, as we agree section 1170.95 relief can be had only for 

murder convictions, not attempted murder convictions. (See, e.g., 

People v. Love (2020) 55 Cal.App.5th 273, 279, review granted 

Dec. 16, 2020, S265445; People v. Alaybue (2020) 51 Cal.App.5th 

207, 222-225; People v. Dennis (2020) 47 Cal.App.5th 838, 841, 

review granted Jul. 29, 2020, S262184; People v. Munoz (2019) 39 

Cal.App.5th 738, 753-769, review granted Nov. 26, 2019, 

S258234; People v. Lopez (2019) 38 Cal.App.5th 1087, 1103-1112, 

review granted Nov. 13, 2019, S258175.)
7

DISPOSITION

The order denying defendant’s section 1170.95 petition is 

affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

KIM, J.