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Name: People v. Diaz (2023) 97 Cal.App.5th 1172
Case #: B319020
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 12/18/2023

Case remanded for trial court to consider whether People v. Tirado (2022) 12 Cal.5th 688 and Senate Bill No. 81 impact defendant’s sentence because the court was not aware of these legal developments at the time of sentencing. Diaz was convicted of first degree murder based on evidence that he shot and killed a street vendor for selling tacos on a street claimed by another taco street vendor. He raised a number of issues on appeal, including that, at sentencing, no one involved knew about two new and significant developments affecting sentencing: the Supreme Court decision in Tirado and SB 81. Held: Remanded for the trial court to evaluate the proper application of SB 81 and Tirado. SB 81 amended section 1385 to add subdivision (c), which allows courts to dismiss enhancements if doing so would further justice and is not prohibited. The Supreme Court decision in Tirado held that the gun enhancement statute that added 25 years to life to Diaz’s term gave trial courts the discretion to impose lesser uncharged enhancements of either 10 or 20 years. At the time of Diaz’s sentencing hearing in March 2022, neither the prosecution nor the defense mentioned these new legal developments, and there was no indication that the trial court was aware of them. “The obvious reading of the record is that the busy actors in this case had not yet learned of the new developments.” Therefore, the case was remanded for resentencing to allow the trial court to consider these new legal developments and their potential impact on Diaz’s sentence.

Any error in instructing the jury on witness certainty in assessing eyewitness identification testimony (CALCRIM No. 315) was harmless because defendant used the instruction to his benefit and consented to its use. An eyewitness to the murder picked Diaz’s picture out of a six pack photo spread and this evidence was presented to the jury. The trial court instructed the jury with CALCRIM No. 315, which addresses eyewitness identification. On appeal, Diaz faulted the trial court for using CALCRIM No. 315 without taking account of the Supreme Court’s decision in People v. Lemcke (2021) 11 Cal.5th 644, which was decided about six months before the jury was instructed in Diaz’s case and criticized the version of this instruction the trial court used. The Court of Appeal concluded that any error in giving the instruction was harmless by any standard. At trial, Diaz used the sentence criticized in Lemcke (How certain was the witness when he or she made an identification?) as a trial defense. Defense counsel introduced evidence that the eyewitness was hesitant in his identification and supported the underconfidence defense with expert witness testimony. In closing argument, defense counsel explained the eyewitness’s lack of confidence in selecting Diaz made his identification unreliable. Diaz used the challenged instruction to his benefit and removing the instruction could not have helped him. [Editor’s Note: The court also concluded: (1) Probable cause supported Diaz’s arrest where he was found with a very distinctive tattoo on his neck (which was described by an eyewitness) at a location connected to the murder when police were preparing to execute a search warrant. (2) The prosecutor did not commit misconduct during closing argument and did not engage in “sandbagging.” (3) Trial counsel was not ineffective for failing to request CALCRIM No. 522 (provocation effect on degree of murder) because a provocation defense was contrary to Diaz’s trial theory, which was misidentification. (4) Diaz’s 75-year-to-life sentence was not cruel and unusual.]