Filed 3/23/21 P. v. Campos CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

PASQUAL CAMPOS

,

Defendant and Appellant. B 308581

(Los Angeles County

Super. Ct. No. BA 316087

- 09 )

APPEAL from an order of the Superior Court of

Los Angeles County, Larry P. Fidler

, Judge. Affirmed.

Cindy Brines , under appointment by the Court of Appeal,

for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_______ __________

_2 Pasqual Campos appeals from a postjudgment order

denying his motion for resentencing pursuant to Penal Code

section 1170.95. 1 No arguable issues have been identified

following review of the record by Campos’s appointed appellate

counsel or by Campos in his supplemental letter brief to this

court

. We also have identified no arguable issues after our own

independent review of th e record

. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A jury in 2014 convicted Campos of two counts of

conspiracy to commit murder (§§ 182, subd. (a), 187) with a gang

enhancement (§ 186.22, subd. (b)) , one count of conspiracy to

commit assault with a semiautomatic firearm (§§ 182, subd. (a),

245, subd. (b)) with a gang enhancement, and four counts of

street terrorism (§ 186.22, subd. (a)). The trial court sentenced

Campos to concurrent indeterminate state prison terms of

25 years to life on the two co unts of conspiracy to commit murder

and stayed the gang enhancements and sentences on all other

counts.

On July 1, 2019 Campos, representing himself, filed a

petition for resentencing under section 1170.95 checking most of

the boxes on a preprinted form. The court appointed counsel to

represent Campos. The district attorney’s office filed an

opposition memorandum, arguing Campos was not eligible for

resentencing under section 1170.95 because, notwithstanding the

check marked allegations in the petition, h e had not been

convicted of first or second degree murder , a threshold

requirement for relief under the statute

. Counsel for Campos

filed two responding memoranda, citing general principles

1 Statutory references are to this code.3

regarding determination of petitions for resentencing under

secti on 1170.95, but did not directly address the argument

Campos was ineligible for resentencing because he had not been

convicted of murder.

On September 16, 2020 the superior court denied Campos’s

petition without issuing an order to show cause , finding him

ineligible for relief as a matter of law because he had not been

convicted of murder. Campos filed a timely notice of appeal.

DISCUSSION

1. Senate Bill No. 1437 and the Section 1170.95 Petition

Procedure

Senate Bill No. 1437 (2017

- 2018 Reg. Sess.) (St ats. 2018,

ch. 1015) (Senate Bill 1437), effective January 1, 2019, eliminated

the natural and probable consequences doctrine as a basis for

finding a defendant guilty of murder ( People v. Gentile (2020)

10 Cal.5th 830, 8 42

- 843 ( Gentile )) and significantly limited the

felony

- murder exception to the malice requirement for murder.

(See, e.g., People v. Rodriguez (2020) 58 Cal.App.5th 227, 236

( Rodriguez ), review granted Mar. 10, 2021, S266652; People v.

Bascomb (2020) 55 Cal.App.5th 1077, 1081.)

Senate Bill 1437 also authorized, through new

section 1170.95, an individual convicted of felony murder or

murder under a natural and probable consequences theory to

petition the sentencing court to vacate the conviction and be

resentenced on any remaining counts if he or she could not have

been convicted of murder because of Senate Bill 1437’s changes to

the definition of the crime. (See Gentile

, supra , 10 Cal.5th at

p. 859.) If the petition contains the information required by

section 1170.95, subdivisi on (b), and the court, following the

procedures detailed in section 1170.95, subdivision (c),4

determines the petitioner has made a prima facie showing that

he or she is entitled to relief, “the court shall issue an order to

show cause.” (§1170.95, subd. ( c); see People v. Verdug o (2020)

44 Cal.App.5th 320, 328 ( Verdugo ), review granted Mar. 18, 2020,

S260493.)

In evaluating whether an order to show cause should issue,

however, the superior court properly examines the record of

conviction to determine if it establishes the petitioner is ineligible

for relief as a matter of law

. (E.g., People v. Drayton (2020)

47 Cal.App.5th 965, 980 [ when assessing the prima facie

showing, “[t] he trial court should not evaluate the credibility of

the petition’s assertions , but it need not credit factual assertions

that are untrue as a matter of law

— f or example, a petitioner’s

assertion that a particular conviction is eligible for relief where

the crime is not listed in subdivision (a) of section 1170.95 as

eligible for res entencing” ] ; see People v. Smith (2020)

49 Cal.App.5th 85, 92, review granted July 22, 2020, S262835

[“[i]f it is clear from the record of conviction that the petitioner

cannot establish eligibility as a matter of law, the trial court may

deny the petition”]; Verdugo

, supra , 44 Cal.App.5th at p p

. 329

-

330, review granted [“[T] he court must at least examine the

complain t, information or indictment filed against the petitioner;

the verdict form or factual basis documentation for a negotiated

plea; and the abstract of judgment. Based on a threshold review

of these documents, the court can dismiss any petition filed by an

individual who was not actually convicted of first or second

degree murder ” ].)5 2. The Superior Court Properly Ruled Campos Is Ineligible

for Relief as a Matter of Law

In accord with the procedure s described in People v. Cole

(2020) 52 Cal.App.5th 1023, review granted October 14, 2020,

S264278, w e appointed counsel to represent Campos on appeal.

After reviewing the record, appointed counsel filed a brief raising

no issues. Appointed counsel advised Campos o n February 22,

2021 that he had 30 days to submit a brief or letter raising any

grounds of appeal, contentions or arguments he wanted the court

to consider.

On March 8, 2021 w e received a single

- page handwritten

supplemental brief in which Campos asserted, without additional

argument, section 1170.95 should include conspiracy to commit

murder. However, as the superior court ruled, conspiracy to

commit murder is not identified as an offense eligible for

resentencing under section 1170.95

, subdivision (a)

. (§ 1170.9 5,

subd. (a)(2) [to be eligible for resentencing, the petitioner must

have been “convicted of first degree or second degree murder

following a trial or accepted a plea offer in lieu of trial at which

the petitioner could be convicted for first degree or se cond degree

murder”]; see People v. Larios (2019) 42 Cal.App.5th 956, 970

,

review granted Feb. 26, 2020, S259983 [ “ the relief provided

in section 1170.95 is limited to certain murder convictions and

excludes all other convictions, including a conviction for

attempted murder ” ]; People v. Lopez (2019) 38 Cal.App.5th 1087,

1103

- 1105, review granted Nov. 13, 2019, S258175 [Senate

Bill 1437 limits relief to individuals convicted of murder].)

Campos was not convicted of first or second degree murder

, let

alone murder under the natural and probable consequences

doctrine or the felony murder rule, the focus of Senate Bill 14376

and a requirement for relief under section 1170.95

. By the plain

terms of the statute, Campos was not eligible for resentencin g.

Because no cognizable legal issues have been raised by

Campos’s appellate counsel or by Campos or identified in our own

independent review of the record

, the order denying his motion

for resentencing pursuant to section 1170.95 is affirmed. (See

People v. Cole

, supra

, 52 Cal.App.5th at p p. 1039

- 1040, review

granted ; see also People v. Serrano (2012) 211 Cal.App.4th 496,

503; see generally People v. Kelly (2006) 40 Cal.4th 106, 118

- 119;

Pe ople v. Wende (1979) 25 Cal.3d 436, 441

- 442 .)

DISPOSITION

The postjudgment order denying Campos’s petition for

resentencing is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.