People v. Camacho CA2/3 ( 2023 )


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  • Filed 2/28/23 P. v. Camacho CA2/3
    Opinion on remand 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    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
    THE PEOPLE,                                                         B312190
    Plaintiff and Respondent,                                   (Los Angeles County
    Super. Ct. No. BA027667)
    v.
    FRANCISCO JAVIER CAMACHO,
    Defendant and Appellant.
    APPEAL from an order of the Superior Court of Los
    Angeles County, James R. Dabney, Judge. Reversed and
    remanded with direction.
    Sandra Gillies, under appointment by the Court of Appeal,
    for Defendant and Appellant.
    Rob Bonta, Attorney General, Lance E. Winters, Chief
    Assistant Attorney General, Susan Sullivan Pithey, Assistant
    Attorney General, Daniel C. Chang and John Yang, Deputy
    Attorneys General, for Plaintiff and Respondent.
    _________________________
    In 1992, a jury convicted Francisco Javier Camacho of first
    degree murder, attempted murder, second degree robbery, and
    two counts of attempted second degree robbery. The jury also
    found true the special circumstance allegation that the murder
    was committed while Camacho was engaged in the commission of
    robbery (Pen. Code,1 § 190.2, subd. (a)(17)) and that he personally
    used a firearm in the commission of the offenses (§ 12022.5, subd.
    (a)). He was sentenced to life without the possibility of parole,
    plus a consecutive five years for the section 12022.5, subdivision
    (a) enhancement, as well as concurrent determinate terms for the
    other convictions. A different panel of this Division affirmed
    Camacho’s conviction. (People v. Camacho (Dec. 1, 1995,
    B071909) [nonpub. opn.].)
    Following our affirmance, Camacho petitioned for
    resentencing under section 1170.95 (now section 1172.6).2 The
    trial court denied his request without appointing counsel,
    concluding that the true findings on the special circumstance
    allegation precluded relief. Camacho did not timely appeal.
    Shortly thereafter, Camacho filed a supplemental request with
    the assistance of counsel, raising several new legal authorities.
    The trial court adhered to its decision. In May 2022, a majority
    1
    All further undesignated statutory references are to the
    Penal Code.
    2
    Effective June 30, 2022, section 1170.95 was renumbered
    to section 1172.6 with no change in text. (Stats. 2022, ch. 58,
    § 10.) For consistency and to ensure that our citations are to the
    most current version of the resentencing statute, we will refer
    only to section 1172.6 for the remainder of this opinion.
    2
    panel of this court affirmed the trial court’s denial of relief.
    (People v. Camacho (May 17, 2022, B312190) [nonpub. opn.].)
    Camacho petitioned for review.
    On July 20, 2022, our Supreme Court granted review and
    has now transferred the matter back to this court with directions
    to vacate our decision and reconsider the cause in light of People
    v. Strong (2022) 
    13 Cal.5th 698
     (Strong).
    The parties agree Strong requires we reverse the superior
    court’s order denying Camacho’s supplemental petition for
    resentencing and that this case should be remanded to the
    superior court for issuance of an order to show cause under
    section 1172.6, subdivision (c) and further proceedings under
    subdivision (d) of the same section. We agree.
    BACKGROUND3
    The convictions resulted from two separate armed
    robberies involving multiple victims on one September night in
    1990. The incidents involved Camacho and two other suspects,
    Petayah Little4 and Eldridge Richardson. During the first
    robbery, around 10:00 p.m., Camacho and Little approached
    victims Allen Watkins and Wycliffe Campbell, both of whom were
    3
    The background is from the prior opinion in this matter,
    People v. Camacho, supra, B312190, of which we have taken
    judicial notice by our own motion, and from the prior opinion
    addressing Camacho’s direct appeal (People v. Camacho, supra,
    B071909), of which we have already taken judicial notice at the
    Attorney General’s request. (Evid. Code, §§ 451, 459.)
    4
    Little was under the jurisdiction of the juvenile court
    during the pendency of Camacho’s case.
    3
    sitting in Campbell’s car, which was parked in front of
    Campbell’s family home. Camacho tapped his gun on the driver’s
    side window and demanded money, while Little stuck his
    revolver in the passenger’s side window. Watkins surrendered
    two dollars. Desiring more money, Camacho and Little marched
    the victims into the family home and began firing. Watkins was
    shot and injured. About one hour later, at a location nearby,
    victim Linden5 Glave was sitting in a car when held at gunpoint
    by Camacho and Little. After a struggle, Glave was shot and
    killed. Camacho and Little ran to a waiting car. A police officer
    in the area heard tires screeching, and a car chase ensued.
    During the car chase, one suspect jumped out of the car and ran
    off. The pursuit continued until Richardson and Little were
    arrested. Camacho was apprehended two weeks later.
    At trial, Camacho offered an alibi and the testimony of
    Little. Little testified that he committed the crimes, not with
    Camacho, but with “ ‘G.’ ” Regarding the murder, Little testified
    that G placed Glave in a chokehold and then Little shot Glave.
    In rebuttal, a police officer testified that Little made a
    statement on the night of the offense admitting that he
    committed the crimes with Camacho and that Camacho shot
    Glave.
    Relevant here, the jury was instructed with CALJIC
    No. 8.80.1 for the robbery-murder special circumstance. The jury
    was not instructed on the theory of natural and probable
    consequences.
    5
    The record contains two different spellings: Linden and
    Lindon.
    4
    As previously noted, the jury convicted Camacho of first
    degree murder (of Glave), attempted murder (of Watkins), second
    degree robbery (of Watkins), and two counts of attempted second
    degree robbery (of Glave and Campbell). The jury found true the
    robbery-murder special circumstance allegation pursuant to
    section 190.2, subdivision (a)(17) and found true that Camacho
    personally used a firearm pursuant to section 12022.5,
    subdivision (a) in the commission of all the offenses. The trial
    court sentenced Camacho to life without the possibility of parole,
    plus a consecutive five years for the section 12022.5, subdivision
    (a) enhancement and ordered the determinate terms for the other
    convictions to run concurrently. His sentence was affirmed by
    this court.
    In 2019, after the passage of Senate Bill No. 1437 (2017–
    2018 Reg. Sess.) (Senate Bill 1437), Camacho petitioned for
    resentencing pursuant to section 1172.6 (the 2019 petition).
    Without appointing counsel, the trial court summarily denied the
    petition. The court based its decision on the record of conviction.
    The court found that Camacho had failed to establish a prima
    facie case for relief because the jury found true the special
    circumstance allegation pursuant to section 190.2, subdivision
    (a)(17). The court also noted that the jury found the personal use
    of firearm allegation true. Camacho did not timely appeal.
    In 2021, with the assistance of counsel, Camacho filed a
    supplemental request for relief under section 1172.6 (the 2021
    supplemental petition). This petition sought relief only as to the
    murder conviction of Glave and raised new legal authority which
    was decided after the trial court’s summary denial of the 2019
    petition. The trial court again summarily denied the 2021
    supplemental petition, declining to revisit its decision despite a
    5
    “split of authority on [the] issue.” Camacho appealed, and a
    majority panel of this court affirmed the decision of the trial
    court.6 Camacho petitioned to the California Supreme Court.
    The Supreme Court granted Camacho’s petition for review,
    and in December 2022, remanded the matter back to our court
    with directions to vacate our decision and reconsider the cause in
    light of Strong, supra, 
    13 Cal.5th 698
    . Strong concluded that a
    special circumstance finding predating People v. Banks (2015) 
    61 Cal.4th 788
     (Banks) and People v. Clark (2016) 
    63 Cal.4th 522
    (Clark), both of which substantially narrowed and clarified the
    class of defendants who are major participants acting with
    reckless indifference to human life during a felony, does not
    preclude eligibility for resentencing. As we now explain and as
    the People concede, remand is now required.
    DISCUSSION
    Senate Bill 1437, which took effect on January 1, 2019,
    limited accomplice liability under the felony-murder rule and
    eliminated the natural and probable consequences doctrine as it
    relates to murder. (People v. Gentile (2020) 
    10 Cal.5th 830
    , 842–
    843.) As relevant here, Senate Bill 1437 amended the felony-
    murder rule by adding section 189, subdivision (e) which provides
    that a participant in the perpetration of qualifying felonies is
    liable for felony murder only if the person: 1) was the actual
    killer; 2) was not the actual killer, but with the intent to kill,
    acted as a direct aider and abettor; or 3) the person was a major
    participant in the underlying felony and acted with reckless
    Before reaching that conclusion, we also concluded that
    6
    Camacho’s 2019 petition did not procedurally bar his
    supplemental request.
    6
    indifference to human life, as described in section 190.2,
    subdivision (d). (Gentile, at p. 842.)
    Senate Bill 1437 also created a procedure whereby persons
    convicted of murder under a now-invalid felony-murder theory
    may petition for vacation of their convictions and obtain
    resentencing. As relevant here, a defendant is eligible for relief
    under section 1172.6 if the defendant meets three conditions:
    1) the defendant must have been charged with murder under a
    theory of felony-murder; 2) the defendant must have been
    convicted of first or second degree murder; and 3) the defendant
    could no longer be convicted of first or second degree murder
    because of changes to sections 188 and 189, effectuated by Senate
    Bill 1437.7 (§ 1172.6, subd. (a).) If the petitioner makes a prima
    facie showing of entitlement to relief, the trial court shall issue
    an order to show cause (§ 1172.6, subd. (c)) and hold an
    evidentiary hearing at which the prosecution bears the burden of
    proving “beyond a reasonable doubt, that the petitioner is guilty
    of murder” under the law as amended by Senate Bill 1437.
    (§ 1172.6, subd. (d)(3).)
    7
    To be clear, section 1172.6 also provides relief to
    individuals with qualifying convictions for attempted murder and
    manslaughter. (See § 1172.6, subd. (a); see also Stats. 2018,
    ch. 1015, § 4 [amending section 1172.6 to expand scope of
    convictions subject to possible relief].) Because this appeal
    pertains only to the 2021 supplemental petition, and that petition
    sought resentencing on Camacho’s murder conviction only, we
    limit our discussion of the statute to Camacho’s murder
    conviction.
    7
    Camacho has challenged the trial court’s order denying the
    2021 supplemental petition on the ground it erred when it found
    he was ineligible for resentencing based on the jury’s robbery-
    murder special circumstance findings, even though they predated
    the Supreme Court’s decisions in Banks and Clark.
    In Strong, supra, 13 Cal.5th at pages 718 to 720, our high
    court determined that a true finding on a felony-murder special-
    circumstance allegation, decided before the Banks and Clark
    decisions, does not serve to preclude, as a matter of law,
    resentencing relief under section 1172.6. It reasoned that both
    Banks and Clark represented the type of significant change in
    the law traditionally found to warrant a re-examination of
    earlier, litigated decisions. Thus, pre-Banks and Clark special
    circumstance findings do not preclude relief at the prima facie
    stage of the resentencing procedure under section 1172.6,
    subdivision (c). Camacho falls within that category of cases.
    Therefore, pursuant to Strong, he is entitled to an evidentiary
    hearing under section 1172.6, subdivision (d)(3).8
    8
    As explained above, the 2021 supplemental petition
    sought relief only as to the conviction for the murder of Glave,
    and this court’s remand for further proceedings is limited to that
    conviction only. We express no opinion on whether (or not)
    Camacho’s conviction for the attempted murder of Watkins,
    which was not challenged in the 2021 supplemental petition, is
    eligible for relief pursuant to section 1172.6.
    8
    DISPOSITION
    The order denying Francisco Javier Camacho’s 2021
    supplemental petition for relief is reversed, and the matter is
    remanded with direction to the trial court to issue an order to
    show cause and to conduct an evidentiary hearing in accordance
    with Penal Code section 1172.6, subdivision (d)(3).
    NOT TO BE PUBLISHED IN THE OFFICIAL
    REPORTS
    NGUYEN (KIM), J.*
    We concur:
    LAVIN, Acting P. J.
    EGERTON, J.
    *     Judge of the Los Angeles Superior Court, assigned by the
    Chief Justice pursuant to article VI, section 6 of the California
    Constitution.
    9
    

Document Info

Docket Number: B312190A

Filed Date: 2/28/2023

Precedential Status: Non-Precedential

Modified Date: 2/28/2023