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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 

ordered 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.

 A159788

 (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 2000, 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

appealed the conviction.

This 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 noted 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. 
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“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-defense. 

At trial, Campos testified the gun discharged accidentally.

In 2019, Campos petitioned for resentencing pursuant to section 

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

now be convicted [of murder] because of changes 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 accidentally 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, concluding 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 convicted 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 “was the actual killer.”

Campos appealed. 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.
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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 did not act with malice 

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

evidence that he claims shows the firearm used to murder the victim was 

registered to the victim; Campos also attempts to discredit 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.

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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 relief under section 1170.95 and 
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DISPOSITION

The 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, S260598.) 
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_________________________

Jones, P. J.

WE CONCUR:

_________________________

Simons, J.

_________________________

Burns, J.

A159788