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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

Plaintiff and Respondent,

v.

FRANCISCO JAVIER CAMACHO,

Defendant and Appellant.

B312190

(Los Angeles County 

Super. Ct. No. BA027667)

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.
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 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. 
3

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.
4

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.
5

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 
6

“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 felonymurder 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 

6 Before reaching that conclusion, we also concluded that 

Camacho’s 2019 petition did not procedurally 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 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.
8

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 robberymurder 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 specialcircumstance 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.
9

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.