People v. Camacho CA2/3 ( 2022 )

Filed 5/17/22 P. v. Camacho CA2/3
(see concurring & dissenting opinion)
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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.
v. No. BA027667)
FRANCISCO JAVIER CAMACHO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, James R. Dabney, Judge. Affirmed.
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 2019, Francisco Javier Camacho petitioned for
resentencing pursuant to Penal Code1 section 1170.95. The trial
court summarily denied the petition at the prima facie stage of
review, on the basis that the record of conviction showed a jury
found true the robbery-murder special circumstance allegation
pursuant to section 190.2, subdivision (a)(17) and the personal
use of a firearm allegation pursuant to section 12022.5,
subdivision (a). Camacho did not timely appeal. In 2021,
Camacho again sought relief under section 1170.95 by filing a
supplemental request to the 2019 petition. As relevant here, the
trial court denied the request stating Camacho was ineligible for
relief as a matter of law due to the true findings by the jury and
that the appropriate remedy was to appeal the original denial.
Camacho appeals from the denial of his supplemental
request. We find that there was no procedural bar to Camacho’s
supplemental request. Camacho is nonetheless ineligible for
relief as a matter of law because a jury found true the robbery-
murder special circumstance allegation. Therefore, we do not
reach the question of whether the court properly relied on the
true finding on the personal use of a firearm allegation. We
affirm.
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2
FACTUAL AND PROCEDURAL BACKGROUND2
I. Camacho’s underlying convictions
In 1992, a jury convicted Camacho of first degree murder,
attempted murder, second degree robbery, and two counts of
attempted second degree robbery. 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 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 Little3 and Eldridge Richardson. During the first
robbery, around 10:00 p.m., both Camacho and Little went into
an occupied residence, both fired shots, and a victim, Allen
Watkins, was shot and injured. About one hour later, at a
location nearby, victim Linden4 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
2 Some of the facts and procedural background are
summarized from our prior unpublished opinion (People v.
Camacho (Dec. 1, 1995, B071909) [nonpub. opn.]), of which we
have taken judicial notice at respondent’s request. (Evid. Code,
§§ 451, 459.)
3Little was under the jurisdiction of the juvenile court
during the pendency of Camacho’s case.
4The record contains two different spellings: Linden and
Lindon.
3
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.
The trial court sentenced Camacho to life without the
possibility of parole (LWOP), 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.
A different panel of this Division affirmed Camacho’s
convictions. (People v. Camacho, supra, B071909, at p. 17.)
Among other things, our court rejected the contention that the
trial court committed instructional error regarding CALJIC
No. 8.80.1.5 Further, the court rejected the contention that the
5 The prior opinion indicated that there was a factual
dispute over what was orally read to the jury. Without deciding
the factual dispute, the panel held, even if the trial court did
make omissions during its oral reading of CALJIC No. 8.80.1,
such oversight was harmless, because the record showed that the
trial court provided the jury with the accurate, written version of
CALJIC No. 8.80.1 to review during its deliberations, and
4
trial court committed instructional error when it failed to define
“reckless indifference to human life” because there was no sua
sponte duty to define “reckless indifference to human life.” The
court further found that the evidence established as a matter of
law that Camacho acted with reckless indifference to human
life.6
because the trial court also admonished the jury to be governed
by the instructions in its final wording.
6 The
appellate court reasoned: “Turning to Camacho’s
participation in the murder of Glave, the evidence here
establishes as a matter of law, at the very least, Camacho acted
with reckless indifference to human life. . . . Little and Camacho
were out to commit robbery that night and had only netted $2.00
by the time Camacho spied the Jaguar. Both suspects carried
guns. Camacho knew Little was willing to shoot at a victim as
they had both already fired on victims that night on Cahuenga
Boulevard. Little testified he pistol whipped Glave and struggled
with the victim who finally grabbed Little’s gun. Just as Little
was losing ground in his fight with Glave, Camacho came around
to the passenger side of the Jaguar and put Glave in a choke
hold, thereby enabling Little to disarm and shoot Glave in the
chest. The jury could easily infer the purpose of the choke hold
was to control Glave to enable Little to kill him. Little testified
as much. There was no testimony Camacho was surprised at the
shooting or that he tried to prevent Little from taking aim.
Finally, Camacho fled with Little, as the latter testified, leaving
Glave to die. No jury would have concluded Camacho was
unaware of the extreme likelihood his actions would result in
Glave’s death. Stated otherwise, a reasonable jury would have
concluded the homicide was a natural and probable consequence
of this violence [citation], and that Camacho acted with reckless
5
II. The section 1170.95 petitions
In 2019, after the passage of Senate Bill No. 1437 (2017–
2018 Reg. Sess.) (Senate Bill 1437), Camacho petitioned for
resentencing pursuant to section 1170.95 (the 2019 petition). The
People filed an opposition to the petition.
indifference to that consequence.” (People v. Camacho, supra,
B071909, at p. 12.)
The panel then contrasted Camacho’s involvement with the
petitioner in Enmund v. Florida (1982) 458 U.S. 782, reasoning:
“Unlike Enmund where the record did not warrant a finding the
defendant had ‘any intention of participating in or facilitating a
murder,’ [citation], the record here supports such an inference.
Camacho was present and actively facilitated the murder by
holding Glave in a choke hold. Nor was Camacho merely
minimally involved. If the jury believed Little’s trial testimony, it
suggested Camacho found and chose to prey on the Jaguar.
Camacho was the one to first approach Glave. He also
voluntarily ran around the car to help Little in his struggle with
Glave and held the victim by the neck so that Little could regain
his gun and fire. It cannot be said [that] Camacho merely
participated in a robbery in the course of which a murder was
committed. Rather, Camacho both participated in the robbery,
contemplated the possibility of homicide[,] and[ ] actively helped
commit the murder. [¶] In sum, the trial court’s failure to define
reckless indifference to human life was harmless beyond a
reasonable doubt because the evidence shows, as a matter of law
Camacho acted with reckless indifference to human life.” (People
v. Camacho, supra, B071909, at pp. 13–14.)
6
Without appointing counsel,7 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 a
personal use of firearm allegation true. Camacho did not timely
appeal.8
In 2021, with the assistance of counsel, Camacho filed his
supplemental request for relief under section 1170.95. The
supplemental request raised new legal authority which was
decided after the trial court’s summary denial of the 2019
petition: People v. York (2020) 54 Cal.App.5th 250, review
7 This issue has not been raised on appeal. After both
summary denials in this case, our Supreme Court held in People
v. Lewis (2021) 11 Cal.5th 952, 967, 970, 973, that counsel must
be appointed upon the filing of a facially sufficient petition, and
any error in failing to appoint counsel is state law error only,
tested for prejudice under People v. Watson (1956) 46 Cal.2d 818.
8 In 2020, Camacho filed a notice of appeal, which was
rejected by the court clerk because it was received after the
expiration of the 60-day period prescribed for filing an appeal.
Shortly thereafter, Camacho, in pro. per. and with the assistance
of a fellow inmate, asked for reinstatement of his right to appeal,
alleging his counsel failed to represent him and specifically,
failed to file a notice of appeal in a timely fashion. In this
request, Camacho attached a letter from the Los Angeles County
Public Defender’s Office stating that his section 1170.95 petition
was received, and it would be forwarded to a special Senate
Bill 1437 unit. The trial court denied Camacho’s request to
reinstate his right to appeal.
7
granted November 18, 2020, S264954, People v. Smith (2020)
49 Cal.App.5th 85, review granted July 22, 2020, S262835,
and People v. Torres (2020) 46 Cal.App.5th 1168, review granted
June 24, 2020, S262011. Camacho requested an order to show
cause, based on the new case law in his favor.
The trial court summarily denied the request. In denying
the supplemental request, the trial court issued an order stating,
“Petitioner filed request for resentencing pursuant to . . . [section]
1170.95 which was denied on August 9, 2019. Court ruled that
because the record of conviction revealed a jury found a special
circumstance allegation pursuant to . . . [section] 190.2[,
subdivision] (a)(17) to be true and, in addition found a personal
use of a firearm allegation to be true the petition failed to
establish a prima facie case for relief. Counsel for petitioner has
now filed a ‘supplemental request for relief,’ citing various cases
that ruled a true finding on a special allegation does not
necessarily preclude relief pursuant to [section] 1170.95. The
court recognizes that there is a split of authority on this issue,
which is currently before the state supreme court, but declines to
revisit its prior ruling. Based on the facts as recited in the
appellate court decision and the jury’s findings the court found
that there was no prima facie case that petitioner was entitled to
relief. If the court erred, the appropriate remedy was to appeal
that decision.”
Camacho filed a notice of appeal indicating he was
appealing from an order affecting his substantial rights.
DISCUSSION
Camacho contends his supplemental request was not
procedurally barred, and further contends that the trial court
erred by summarily denying it at the prima facie stage of review
8
by improperly concluding the jury’s true findings on the special
circumstance and gun use allegations precluded section 1170.95
relief as a matter of law. We turn first to the procedural issue.
I. Camacho’s supplemental request is not procedurally
barred.
Camacho contends his supplemental request is not
procedurally barred, asserting that collateral estoppel does not
apply, and in any case, there are equitable reasons for not
applying collateral estoppel. Camacho cites to People v. Farfan
(2021) 71 Cal.App.5th 942, 946 to 947, which rejected the idea
that a second, subsequent petition pursuant to section 1170.95 is
procedurally barred where it rested on new legal authority
challenging the basis for the trial court’s summary denial of the
previous petition.
People v. Farfan, supra, 71 Cal.App.5th at page 950, based
its decision, in relevant part, on statutory interpretation of
section 1170.95 and on public policy considerations which
weighed against applying collateral estoppel. The Farfan court
held, “Neither the express language of section 1170.95 nor the
stated purpose of the legislation supports limiting access to relief
under section 1170.95 as advocated by respondent where, as here,
the subsequent petition rested on new legal authority which
challenged the basis for the trial court’s summary denial of the
previous petition.” (Farfan, at pp. 946–947.)
The People do not address Farfan on appeal. Instead, the
People argue the issues presented fall outside of the collateral
estoppel analysis. The People argue, “As to the principles of
collateral estoppel and res judicata, they clearly contemplate
application where there has been a prior action and a new action,
which is not the case here as the supplemental request was
9
obviously a supplement[al] filing in the original action, rather
than a new resentencing petition that instituted a new action.”
The People thus assert the trial court correctly refused to revisit
the prior ruling on the 2019 petition because the order had
become final and nonappealable, that the order denying the 2019
petition was a final judgment, and the trial court lost jurisdiction
to hear a supplemental filing to the original petition. The People
also assert that no statutory provisions in section 1170.95 allow
for reconsideration and “[j]urisdiction may be retained after a
judgment due to existing statutes, such as section 1170,
subdivision (d), which allows the trial court under certain
circumstances to recall a resentence within 120 days of its
issuance. But barring such circumstances, defendant’s only
recourse would be to seek appellate review.”9 Thus, the People
argue, because the deadline for appeal of the 2019 petition has
passed, the trial court’s denial was proper.
There is no dispute that Camacho did not timely appeal the
denial of the 2019 petition. However, he filed a second,
subsequent petition pursuant to section 1170.95 that raised new
legal authority. True, Camacho did not label it as such, instead
calling it a supplemental request. This is a semantic difference
where a literal reading would exalt form over substance. The
“ ‘label given a petition, action, or other pleading is not
determinative; rather, the true nature of a petition or cause of
9 Section 1170, subdivision (d), does not refer to recall of a
sentence within 120 days. Section 1170, subdivision (d), refers to
the petitioning process for recall and resentencing of a defendant
sentenced to LWOP who was a minor at the time of commission
of the offense.
10
action is based on the facts alleged and the remedy sought in that
pleading.’ ” (People v. Picklesimer (2010) 48 Cal.4th 330, 340.)
Under Farfan, there was no procedural bar to Camacho’s second
petition.
II. Because the jury found the robbery-murder special
circumstance true, Camacho is ineligible for
section 1170.95 relief as a matter of law.
A. Applicable law
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, to ensure that a person’s sentence is
commensurate with his or her individual criminal culpability.
(People v. Gentile (2020) 10 Cal.5th 830, 842–843; People v. Lewis,
supra, 11 Cal.5th at pp. 957, 971.)
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) was a major participant in the
underlying felony and acted with reckless indifference to human
life, as described in section 190.2, subdivision (d). (People v.
Gentile, supra, 10 Cal.5th at p. 842.) Senate Bill 1437 also
amended the natural and probable consequences doctrine by
adding subdivision (a)(3) to section 188, which states that
“[m]alice shall not be imputed to a person based solely on his or
her participation in a crime.”
Senate Bill 1437 also added section 1170.95, which created
a procedure whereby persons convicted of murder under a now-
11
invalid felony-murder or natural and probable consequences
theory may petition for vacation of their convictions and
resentencing. A defendant is eligible for relief under
section 1170.95 if he or she meets three conditions: he or she
(1) must have been charged with murder by means of a charging
document that allowed the prosecution to proceed under a felony
murder or natural and probable consequences theory; (2) must
have been convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a
trial at which the petitioner could have been convicted of murder
or attempted murder; and (3) could not presently be convicted of
murder or attempted murder due to changes to sections
188 and 189 effectuated by Senate Bill 1437. (§ 1170.95,
subd. (a).)
The defendant is entitled to the appointment of counsel, if
requested, upon the filing of a facially sufficient petition, without
regard to his or her eligibility for relief. (People v. Lewis, supra,
11 Cal.5th at p. 957.) After the appointment of counsel and the
opportunity for briefing, when determining whether the
defendant has made a prima facie showing of entitlement to
relief, the court may consider the record of conviction. (Id. at
pp. 957, 960, 970–971.) “The record of conviction will necessarily
inform the trial court’s prima facie inquiry under section 1170.95,
allowing the court to distinguish petitions with potential merit
from those that are clearly meritless. This is consistent with the
statute’s overall purpose: to ensure that murder culpability is
commensurate with a person’s actions, while also ensuring that
clearly meritless petitions can be efficiently addressed as part of
a single-step prima facie review process.” (Id. at p. 971.)
12
“While the trial court may look at the record of conviction
after the appointment of counsel to determine whether a
petitioner has made a prima facie case for section 1170.95 relief,
the prima facie inquiry under subdivision (c) is limited. Like the
analogous prima facie inquiry in habeas corpus proceedings,
‘ “the court takes petitioner’s factual allegations as true and
makes a preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual
allegations were proved. If so, the court must issue an order to
show cause.” ’ [Citations.] ‘[A] court should not reject the
petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citations.] ‘However, if
the record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court is
justified in making a credibility determination adverse to the
petitioner.” ’ ” (People v. Lewis, supra, 11 Cal.5th at p. 971.) In
reviewing any part of the record “at this preliminary juncture,” a
trial court may not engage in “ ‘factfinding involving the weighing
of evidence or the exercise of discretion.’ ” (Id. at p. 972.)
B. Analysis
Camacho contends the trial court erred by ruling he was
ineligible for section 1170.95 relief as a matter of law because the
jury’s true finding on the special circumstance predates our
Supreme Court’s decisions in Banks and Clark.10 Therefore,
10 People v. Banks (2015) 61 Cal.4th 788 and People v.
Clark (2016) 63 Cal.4th 522. In Banks, the Supreme Court
clarified certain factors to consider in determining whether an
aiding and abetting defendant is a major participant. In Clark,
the Supreme Court clarified certain factors to consider in
13
Camacho urges that the trial court should have issued an order
to show cause.
As noted, Camacho’s jury found true the robbery-murder
special circumstance allegation (§ 190.2, subd. (a)(17)). The jury
was instructed pursuant to CALJIC No. 8.80.1 as follows: “If you
find that the defendant was not the actual killer of a human
being, you cannot find the special circumstance to be true unless
you are satisfied beyond a reasonable doubt that such defendant
with the intent to kill [aided,] [abetted,] [counseled,]
[commanded,] [induced,] [solicited,] [requested,] [or] [assisted]
any actor in the commission of the murder in the first degree [.] [,
or with reckless indifference to human life and as a major
participant, [aided,] [abetted,] [counseled,] [commanded,]
[induced,] [solicited,] [requested,] [or] [assisted] in the
commission of the crime of robbery or attempted robbery which
resulted in the death of a human being, namely Lindon Glave.”
(Italics added.)
The jury’s true finding on the special circumstance
allegation therefore demonstrates Camacho is ineligible
for section 1170.95 relief as a matter of law because Camacho
could still be convicted under section 189, subdivision (e) as
amended by Senate Bill 1437. To make its finding, the jury
necessarily found that Camacho, if he was not the actual killer,
either had the intent to kill or acted with reckless indifference to
human life and was a major participant in the commission of the
robbery. Thus, by finding the special circumstance true, the jury
made the requisite findings necessary to sustain a felony-murder
determining whether an aiding and abetting defendant acted
with reckless indifference to human life.
14
conviction under the amended law. In other words, the “language
of the special circumstance tracks the language of Senate
Bill 1437 and the new felony-murder statutes.” (People v.
Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 419.) Camacho is
therefore ineligible for resentencing under section 1170.95 as a
matter of law. (See, e.g., People v. Simmons (2021)
65 Cal.App.5th 739, 746–747, review granted Sept. 1, 2021,
S270048; accord, People v. Jones (2020) 56 Cal.App.5th 474, 482,
review granted Jan. 27, 2021, S265854; People v. Gomez (2020)
52 Cal.App.5th 1, 15, review granted Oct. 14, 2020, S264033;
People v. Nunez (2020) 57 Cal.App.5th 78, 91, review granted
Jan. 13, 2021, S265918.)
Camacho urges us to follow other courts who have
concluded that a true finding on a special circumstance does not,
by itself, render a petitioner ineligible for relief. (See, e.g., People
v. Torres, supra, 46 Cal.App.5th at p. 1178.) Torres, at
page 1179, reasoned that Banks and Clark “construed
section 190.2, subdivision (d) in a significantly different, and
narrower manner than courts had previously construed the
statute.” “Accordingly, in determining if [defendant] could be
convicted today of first degree murder, we cannot simply defer to
the jury’s pre-Banks and Clark factual findings that [defendant]
was a major participant who acted with reckless indifference to
human life as those terms were interpreted at the time.” (Ibid.)
“No court has affirmed the special circumstances findings at issue
post-Banks and Clark. There is therefore a possibility that
[defendant] was punished for conduct that is not prohibited
by section 190.2 as currently understood, in violation of
[defendant]’s constitutional right to due process.” (Id. at p. 1180,
fn. omitted; accord, People v. Smith, supra, 49 Cal.App.5th at
15
p. 93; People v. York, supra, 54 Cal.App.5th at p. 258; cf. People v.
Secrease (2021) 63 Cal.App.5th 231, 247, review granted June 30,
2021, S268862 [adopting a “middle ground” in which pre-
Banks/Clark special circumstance does not bar § 1170.95 relief
as matter of law absent judicial determination that evidence was
sufficient under those cases, but requiring courts hearing the
petition and any ensuing appeal to determine sufficiency of
evidence under Banks and Clark].)
As the foregoing cases indicate, discussion generated by
this issue has been intellectually robust. We welcome the clarity
that will come soon, as this issue is pending before our Supreme
Court in People v. Strong (Dec. 18, 2020, C091162) [nonpub.
opn.], review granted March 10, 2021, S266606. In the
meantime, we are persuaded by the line of reasoning in the cases
deciding that a jury’s true finding on the robbery-murder special
circumstance renders a petitioner ineligible for section 1170.95
relief as a matter of law. Accordingly, we conclude that the
record of conviction shows Camacho’s ineligibility as a matter of
law, without the need for factfinding or credibility
determinations. (See People v. Lewis, supra, 11 Cal.5th at
p. 971.)11 Having so concluded, we need not reach whether the
11 The People assert that, even if a jury's pre-
Banks and Clark true finding on a special circumstance
allegation is not automatically preclusive, we may conduct our
own evaluation of the evidence to determine whether it supports
such a finding in light of Banks and Clark. And, they argue, the
evidence here satisfied the Banks/Clark standard. Given our
conclusion that the special circumstance finding renders
Camacho ineligible as a matter of law, we do not address this
issue.
16
trial court properly relied on the true finding on the personal use
of a firearm enhancement.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
KIM, J.*
I concur:
EGERTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
17
LAVIN, Acting P. J., Concurring and Dissenting:
I agree there was no procedural bar to Francisco Javier
Camacho’s supplemental request under Penal Code1 section
1170.95. In my view, however, the jury’s true finding on the
robbery-murder special-circumstance allegation does not
categorically preclude resentencing where, as here, the true
finding was made prior to People v. Banks (2015) 61 Cal.4th 788and People v. Clark (2016) 63 Cal.4th 522. “The Courts of Appeal
have subjected the issue at hand to vigorous debate and devoted
countless pages of discussion to the subject. The issue is currently
under review by the Supreme Court as well, so we will soon have
clarity one way or the other. (People v. Strong (Dec. 18, 2020,
C091162) [nonpub. opn.], review granted Mar. 10, 2021,
S266606.)” (People v. Arias (2021) 66 Cal.App.5th 987, 1003–
1004, review granted Sept. 29, 2021, S270555.) Accordingly, I
need not add to the conversation with further argument or
analysis. Suffice it to say I am persuaded by the logic of the
courts that have concluded pre-Banks and Clark felony-murder
special-circumstance findings do not categorically preclude
defendants from obtaining resentencing relief under section
1170.95.2
1 Undesignated statutory references are to the Penal Code.
2 I also agree with Camacho that the firearm enhancement
under section 12022.5, subdivision (a) does not clearly show that he
acted with malice aforethought. (See People v. Offley (2020) 48
Cal.App.5th 588, 598 [enhancement under section 12022.53,
subdivision (d) does not preclude relief under section 1170.95]; People
v. Wardell (2008) 162 Cal.App.4th 1484, 1488 [section 12022.5,
subdivision (a) personal use of a firearm enhancement does not require
specific intent].)
Further, I do not agree with the Attorney General that the
trial court’s error in summarily denying the petition was
harmless under the principles set forth in People v. Watson (1956)
46 Cal.2d 818. The Supreme Court recently clarified in People v.
Lewis (2021) 11 Cal.5th 952 that a trial court’s authority at this
stage of review is limited, in that it may not engage in factfinding
involving the weighing of evidence. (Id. at p. 972.) I decline the
Attorney General’s invitation to engage in that very exercise.
In sum, I would reverse the order and remand for further
proceedings consistent with section 1170.95.
LAVIN, Acting P. J.
2