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Filed 8/19/20 P. v. Campos CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or

or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

RIGOBERTO Z. CAMPOS

, Defendant and Appellant. A 1 59788

( Alameda County Super. Ct. No. 135839 )

Rigoberto Z. Campos appeals from the trial court’s summary denial of

his Penal Code section 1170.95 petition. 1 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 200 0 , a jury convicted Campos of first degree murder (§ 187) and

found true an allegation he personally used a firearm in the commission of

the offense ( § 12022.5 ). The court sentenced Campos to state prison

. Campos

appeale d the conviction.

T his court affirmed

. ( People v. Campos ( Aug

. 7

, 2002 , A093213 )

[nonpub. opn.] .) Our opinion , which we incorporate by reference here

,
described the circumstances of the crime . It not ed Campos’s wife was having

an affair with the victim ; Campos spotted the victim, approached him, and

1 Undesignated statutory references are to the Penal Code.2

“shot ” him. Campos discarded his bloody shirt and a gun, then fled to

Chicago. In a recorded police interview, Campos admitted shooting the

victim during a physical altercation but claimed he acted in self

- d efense.

At trial, Campos testified the gun discharged accidentally.

In 2019, Campos petitioned for re sentencing pursuant to section

1170.95. He alleged he was convicted of felony murder and that he “coul d not

now be convicted [ of murder ] because of chan ges to

. . . section 189

. ” In a

supporting declaration, Campos averred “ new or additional evidence ”

demonstrated he was not the “actual killer” and did not act with the intent to

kill. Campos explained the circumstances surrounding the crime and

— as he

did at trial

— averred the gun went off accident ally during a struggle with the

victim

. The declaration attached evidence purportedly showing Campos

acted in self

- defense and/or that the shooting was accidental.

The court summarily denied the petition , conc luding Campos failed to

make a threshold showing of entitlement to relief

. After considering the

court file

— including the jury instructions and our opinion in the prior

appeal

— the court determined section 1170.95 relief was unavailable because

Campos “was not convicte d of murder under a felony

- murder or natural and

probable consequences aider and abettor theory .” It explained that even if

Campos had been convicted under such a theory, “relief

. . . would still be

unavailable” because Campos “wa s the actual killer.”

Campos appeal ed

. Appointed counsel filed a brief asking this court to

review the record to determine whether there are arguable issues. ( People v.

Wende (1979) 25 Cal.3d 436 .) Campos filed a supplemental brief

.3 DISCUSSION

When a defendant appeals the denial of postconviction relief, we have

“ no independent duty to review the record for reasonably arguable issues. ”

( People v. Cole (Aug. 3, 2020, B304329) __Cal.App.5th__ [ 2020 WL 4435275,

p. *8] .) If the defendant files a supplemental brief, we evaluate arguments

presented in the brief and issue an opinion disposing of the trial court’s order

on the merits. ( Ibid. ) Here, Campos has filed a supplemental brief arguing

he was entitled to section 1170.95 relief because he d id not act with malice

aforethought and “ was not the actual killer per se.” Campos points to

evidence that he c laims shows the firearm used to murd er the victim was

registered to the victim; Campos also attempts to d iscredi t the prosecutor’s

theory of the case

. Campos’s arguments are, in effect, a challenge to the sufficiency of the

evidence supporting the conviction; they do not persuade us the court erred

by summarily denying the section 1170.95 petition. Campos was ineligible

for relief under section 1170.95 as a matter of law : he admitted shooting

and killing the victim, and the jury found he personally used a firearm in

the commission of the offense. Section 1170.95 “ does not provide relief to

a ‘ person [who] was the actual killer

. ’ ” ( People v. Cole

, supra,

__Cal.App.5th__ [ 2020 WL 4435275, at p. *2 ] .)

Even if the court erred by denying the petition without appointing

counsel and holding a hearing

, Campos cannot demonstrate prejudice under

any standard of review because he is ineligible for relief as a matter of law.

Thus, remand for the appointment of counsel and a hearing on the petition

would be futile

. 2

2 The California Supreme Court is considering (1) whether a trial court can rely on the record of conviction to conclude a defendant has failed to make a prima facie showing of eligibility for relie f under section 1170.95 and4 DISPOSITION

T he order denying the section 1170.95 petition is affirmed

.

(2) when the right to appointed counsel arises under that statute. ( People v. Lewis (2020) 43 Cal.App.5th 1128, review granted Mar. 18, 2020, S260 59 8.)5 _________________________ Jones, P. J.

WE CONCUR:

_________________________ Simons, J.

_________________________ Burns, J.

A159788