Filed 2/28/23 P. v. Camacho CA2/3 Opinion on remand from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 PEOP LE,

Plaintiff and Respondent,

v.

FRANCISCO JAVIER CAMACHO,

Defendant and Appellant. B 3 12190

( Los Angeles County Super. Ct. No

. BA027667 )

APPEAL from a n order of the Superior Court o f Los Angeles County

, James R. Dabney , Judge. Reversed and

r emanded with direction

. Sandra Gillies

, under appointment by the Court of Appeal, for Defendant and Appella nt

. Rob Bonta, Attorney General, Lance E. Winters , Chief Assistant Attorney General, Susan Sullivan Pithey

, Assistant Attorney General , Danie l C. Chang and John Yang , Deputy Attorney s General, for Plaintiff and Respondent.2 _________________________ 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 dete rminate 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 h is 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 severa l 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 st atute, we will refer

on ly to section 117 2.6 for the remainder of this opinion.3

panel of this court affirmed the trial court’s denial of relief. ( People v. Camacho ( May 17 , 202 2 , B 312190 ) [ 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 ( 2 022) 13 Cal.5th 698 ( Strong ). The parties agree Strong r equires 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 proc eedings under subdivision (d) of the same section

. We agree

. BACKGROUND 3
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, Petay ah Little 4 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 , B3 12190 , 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.4

sitting in Campbell’s car, which was parked in front of
Cam p bell’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 Linden 5 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 wai ting 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 an d 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.5 As previously noted, the jury convicted C amacho 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 p arole, 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 N o. 1437 (2017

– 2018 Reg. Sess.) (Senate Bill 1437), Camacho petitioned for resentencing pursuant to section 117 2.6 (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) . Th is 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 despit e a6

“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 indi fference 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 direc t aider and abettor; or 3) the person was a major participant in the underlying felony and acted with reckless

6 Before reaching that conclusion, we also concluded that Camacho’s 2019 petition did not proc edurally bar his supplemental request.7

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 defen dant 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 sec ond 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 attempt ed murder and manslaughter. (See § 1172.6, subd . (a) ; see also Stats. 2018,
ch. 1015
, § 4 [amending section 1 172.6 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 Ca macho’s murder
conviction

.8 Camacho has challe nged 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 finding s , even though they predated the Supreme Court’s deci sions in Banks and Clark

. In Strong

, supra , 13 Cal.5th at pages 71 8 to 720, our high court determined that a true finding on a felony

- murder special

circumstance allegation, decided before the B anks 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 dec isions. 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 Stro ng , 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 eligib le for relief pursuant to section 1172.6.9 D ISP OSITION The order denying Francisco Javier Camacho ’s 2021 supplemental petition for relief is reversed, and the matter is
remanded with direction to the trial cou rt 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.