People v. Camacho CA2/5 ( 2022 )

Filed 9/15/22 P. v. Camacho CA2/5
Opinion following transfer 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B292093
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA144840)
v.
JUAN CARLOS CAMACHO
et al.,
Defendants and Appellants.
APPEAL from judgments of the Superior Court of Los
Angeles County, Julian C. Recana, Judge. Affirmed in part,
reversed in part, and remanded for further proceedings.
Ava R. Stralla, under appointment by the Court of Appeal,
for Defendant and Appellant Juan Carlos Camacho.
Law Office of Austin R. Dove, Austin R. Dove, for
Defendant and Appellant Adan Muniz.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
1
Assistant Attorney General, Amanda V. Lopez and David E.
Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
I. INTRODUCTION
A jury convicted defendants and appellants Juan Carlos
Camacho and Adan Muniz of assault with a deadly weapon (Pen.
Code, § 245, subd. (a)(1)1) and willful, deliberate, and
premeditated attempted murder (§§ 664/187, subd. (a)). The jury
found true the allegation that the offenses were committed for
the benefit of, at the direction of, and in association with a
criminal street gang with the specific intent to promote, further,
and assist in criminal conduct by gang members. (§ 186.22, subd.
(b)(1)(C).) It further found true the allegation that in the
commission of each offense Muniz personally inflicted great
bodily injury on the victim. (§ 12022.7, subd. (a).) The trial court
found true the allegations as to both offenses that Camacho had
two prior serious and/or violent felony convictions (§§ 667, subds.
(a)(1) & (b)-(j); 1170.12, subd. (b)) and served two prior prison
terms (§ 667.5, subd. (b)) and Muniz served one prior prison term
(§ 667.5, subd. (b)). The court sentenced Camacho to 45 years to
life in state prison and Muniz to 13 years to life in state prison.
In his opening brief, Camacho contended insufficient
evidence supported the gang enhancement findings; the trial
court erred in allowing the prosecution to use one of his
bifurcated prior convictions as a predicate offense to prove the
1 All further statutory references are to the Penal Code
unless otherwise noted.
2
gang enhancement allegations; we were required to reverse his
conviction for premeditated attempted murder in light of Senate
Bill No. 1437 which abrogated the natural and probable
consequences doctrine; if we rejected his Senate Bill No. 1437
contention, then the court erred in failing to instruct the jury that
he had to act with premeditation in committing the willful,
deliberate, and premeditated attempted murder; we should
remand the matter to allow the court to exercise its discretion
whether to strike his section 667, subdivision (a) sentence
enhancements as provided by Senate Bill No. 1393; the court
erred in imposing a consecutive 10-year gang sentence
enhancement; and we should strike his section 667.5, subdivision
(b) prior prison term sentence enhancements as provided by
Senate Bill No. 136.
In his opening brief, Muniz contended the trial court erred
in denying his motion to disclose the identity of a confidential
informant; the court erred in failing to bifurcate trial on the gang
enhancement allegations; insufficient evidence supported the
assault with a deadly weapon and willful, deliberate, and
premediated attempted murder offenses; and insufficient
evidence supported the gang enhancements.
On January 10, 2020, we filed our opinion reversing
Camacho’s and Muniz’s section 667.5, subdivision (b) prior prison
term sentence enhancements and remanding the matter for the
trial court to exercise its discretion whether to strike Camacho’s
section 667, subdivision (a) sentence enhancements and for the
court to strike Camacho’s and Muniz’s section 186.22, subdivision
(b)(1)(C) 10-year terms and impose 15-year minimum parole
eligibility terms under section 186.22, subdivision (b)(5). We
otherwise affirmed the judgments.
3
On February 11, 2020, Camacho filed a petition for review
in the California Supreme Court. Muniz did not file a petition for
review. On March 18, 2020, the California Supreme Court
granted Camacho’s petition for review. On February 16, 2022,
the Supreme Court transferred the matter back with directions to
vacate our decision and reconsider the cause in light of Senate
Bill No. 775 (Stats. 2021, ch. 551) and People v. Lewis (2021) 11
Cal.5th 952.
On March 2, 2022, Camacho filed a post-transfer
supplemental brief in which he argues we must reverse his
attempted murder conviction pursuant to Senate Bill No. 775.
He also contends he is entitled to the ameliorative benefits of
other legislation that became effective while his appeal was
pending. That is, pursuant to Assembly Bill No. 333 (Stats. 2021,
ch. 699), we must reverse his gang enhancement; pursuant to
Assembly Bill No. 1869 (Stats. 2020, ch. 92), we must vacate the
unpaid balance of the trial court order that he pay attorney fees;
pursuant to Assembly Bill No. 177 (Stats. 2021, ch. 257), we must
vacate administrative fees on restitution fine collections; and on
remand, the court must follow the upper-term sentencing
limitations in Senate Bill No. 567 (2021–2022 Reg. Sess.; Stats.
2021, ch. 731). He further contends we should order the trial
court to correct a clerical error in the abstract of judgment.
Finally, as in his opening brief, he states we must strike his
section 667.5, subdivision (b) priors and remand the matter for
the court to exercise its discretion whether to strike his section
667, subdivision (a) sentence enhancement.
On March 17, 2022, Muniz also filed a post-remand
supplemental brief. In his brief, Muniz argues that we must
reverse his gang enhancement pursuant to Assembly Bill
4
No. 333. On June 6, 2022, we asked the Attorney General and
Muniz to file supplemental briefs addressing whether Muniz’s
judgment became final by virtue of his failure to file a petition for
review in the California Supreme and thus this court does not
have jurisdiction to consider his Assembly Bill No. 333 argument.
Both parties filed supplemental briefs.
We reverse Camacho’s willful, deliberate, and premeditated
attempted murder conviction and Camacho’s and Muniz’s gang
sentence enhancements and remand for further proceedings. The
prosecution may retry Camacho on the willful, deliberate, and
premeditated murder charge and Camacho and Muniz on the
gang sentence enhancement allegations. We otherwise affirm.
II. BACKGROUND
On May 20, 2017, Camacho and his girlfriend, Maribel
Sanchez, lived in a house on West Reeve Street in Los Angeles.
Maribel’s sister, Elizabeth Sanchez, also lived in the house.
Maribel and Elizabeth’s sister, Mariana Sanchez, and her fiancé,
Jose Duran, lived in a building or back room on the property.
Duran, known as “Wolf,” Mariana, known as “Crazy,” and
Elizabeth had been members of the Compton Vato 70 (CV70)
gang. On May 20, 2017, they were no longer active in the gang.
Camacho, known as “Stomper,” and Maribel were members of the
Compton Vato Tres (CV3) gang. According to Duran, CV70 and
CV3 were rival gangs.
In the early morning of May 20, 2017, Elizabeth went to
the back room and asked Mariana to come to the house to speak
to her about something. When Mariana entered the house,
Elizabeth was in the hallway and Camacho and Maribel were in
5
a bedroom. Elizabeth was upset that someone had used her cell
phone to remove money from her boyfriend’s tax account. When
Mariana said that she had been in the back room, Elizabeth
turned to Maribel.
Duran entered the house. He knew “they” were on drugs
and told Mariana, “[T]hey are tweakers. Leave them alone.”
Camacho was offended at being called a “tweaker.” Duran said,
“If you associate with one, you will be considered one.” Camacho
punched Duran in the mouth. Duran told Camacho to fight him
outside.
Duran and Camacho fought and fell to the ground. Duran
believed he won the fight. Although Camacho hit him in the face,
he was not injured. Duran “busted” Camacho’s lip. A neighbor
told them to stop fighting, and they complied.
After the fight, Duran threw his bike over the fence—the
gate was locked and he did not have a key—and jumped over. He
went across the street to speak with and get help from his friend
Luis, a CV70 gang member. Luis was not home. At the same
time, Camacho and Maribel talked on the porch.
Mariana went inside the house and confronted Elizabeth
about the problem she had caused. Camacho joined the
argument, also confronting Elizabeth. Maribel was speaking on
the phone two to three feet from Mariana. Mariana could hear
her conversation. Maribel said, “‘Some shit is going down.’” She
also said, “‘Well, Stomper got down with Wolf from 70s, and
because Jose had run across the street.’” She said, “[H]e is from
70s, and because Stomper [is] from CV3, it is a hood matter
now.”2
2 A Los Angeles County Sheriff’s Department detective
testified that Mariana told him Maribel said, “‘Hey, there is shit
6
At some point during Mariana’s argument with Elizabeth,
Maribel asked Elizabeth for the front gate key. Elizabeth handed
Maribel the key and Maribel walked out the front door.
Unable to speak with Luis, Duran returned home.
Believing Camacho had treated him disrespectfully, Duran
confronted Camacho, saying, “Round 2.” At first, Camacho did
not want to fight, but ultimately agreed. As Duran and Camacho
fought, Camacho pinned Duran’s back against a van. According
to Duran, Camacho “switched [him] over” so he was facing the
van. Duran and Camacho were “locked”—Duran did not know
why Camacho held him for so long. Then, Duran “was seeing
stars and [his] lights went out.”
Mariana remained inside talking with Elizabeth. Mariana
heard Duran and Camacho fighting. After a couple of minutes,
she heard Duran make a “weird like gag noise.” Mariana looked
out the window and saw a hand and a hammer.
Mariana ran outside. Maribel stood holding the gate key.
The gate was open. Duran was on the ground on one knee, trying
to keep himself upright by holding onto the van. He then
dropped down on all fours. Camacho stood in front of Duran and
Muniz stood behind Duran. Muniz was swinging a hammer
downward on top of Duran’s head. Muniz struck Duran’s head
two to three times causing blood to splatter. As Muniz struck
Duran with the hammer, Camacho punched Duran in the face
two or three times. Duran was not armed with a weapon during
the fight and, as far as Duran knew, Camacho was not armed.
going down with the 70. You need to come through. This is CV3
all the way.’” That statement does not appear in the apparent
recorded transcript of the interview played for the jury.
7
Trying to shield Duran, Mariana ran between him and
Camacho and Muniz. Camacho backed away. As she hugged
Duran, Muniz struck her on the neck with the hammer four
times. Mariana grabbed the hammer and Muniz yelled at her to
let go of it. They struggled over the hammer. Elizabeth came
outside and yelled, “‘That is my sister.’” Elizabeth grabbed the
hammer and Muniz and Mariana both let it go.
Duran was unconscious. Mariana called out to him, but
there was no response. She pulled on him and he “kind of woke
up.” Mariana guided Duran back to their room. Duran had two
deep holes on the top of his head and was bleeding.
Muniz yelled for Mariana to bring out Duran. Mariana
stood outside in front of her and Duran’s room to prevent Muniz
from entering. Muniz reached for a gun in his pants. Mariana
refused to bring out Duran.
After Mariana refused to bring out Duran, she and Muniz
calmed down and had a conversation. Muniz said “[h]e received a
call saying because Jose was from 70s and he was from, I guess, a
different gang, Mr. Camacho, that is why he was there.” Mariana
told Muniz that it was a family matter. Muniz responded, “‘Well,
this is my brother-in-law. I am here to back him up.’” Mariana
insisted it was a family matter and she “started explaining to him
how the issue happened.”
Muniz grinned and said to Mariana, “[Y]ou should be on a
reality show for families.” Muniz and Mariana shook hands, and
Muniz said, “‘My bad for hitting you with the hammer.’” He said
he did not know that she was “‘the sister.’” Muniz and Camacho
left the property.
Mariana called 911. In the call, she described Duran’s
attackers as “just Mexican, bald headed and that’s it.” Later in
8
the call she said, “One was wearing some blue shorts and a black
shirt and the other was wearing a sweater.” At first, Mariana
said the assailants “ran” and that she did not know where they
went, then she said she was unsure if they left on foot or in a car,
and finally she said that she was pretty sure they left in a car.
When Sheriff’s Department deputies arrived, Mariana described
the assailant with the hammer as “30 to 35 years old, 5’ 11’’, with
a dark complexion, thin build, and bald head.
On December 7, 2017, Mariana identified Muniz from a
group of six photographs (photo array) as the man who struck
Duran with a hammer. Mariana was sure of her identification.
At trial, Muniz’s counsel asked Mariana, “Would it change your
mind if you knew Mr. Muniz was 24 years old on that day?”
Mariana responded, “He don’t look that age to me. He looks
older.” Muniz’s counsel represented that he was 5’ 7” and had
Muniz stand next to him. He then asked Mariana if there was
any chance Muniz was 5’ 11”. Mariana said, “No.” Muniz’s
counsel then asked, “It couldn’t possibly have been Mr. Muniz?”
Mariana responded that Muniz was the assailant with the
hammer and she was “not good with heights.”
Mariana admitted that she had given several different
versions of what happened on May 20, 2017, and added some
significant details. She explained that she did not tell the full
story “at the beginning.” She stated, “[I] was lying about it,
especially when they went to pick up [Duran], the paramedics. I
did lie about it. I didn’t want to get involved with the court and
none of that, but at the end of the day, my husband is going
through a long recovery. It’s not fair for him for me to just keep
my mouth shut and let the people who did it walk away. It is not
fair.”
9
Los Angeles Sheriff’s Department Detective Eric Gomez
testified as the prosecution’s gang expert. According to Detective
Gomez, members of the same gang typically help one another
commit crimes. A gang member is required to help if a fellow
gang member asks for help. The failure to provide help could
result in negative consequences including beatings or expulsion
from the gang.
Detective Gomez was familiar with the CV3 gang. He
knew Camacho and Muniz to be CV3 gang members. Camacho
had the moniker “Stomper.” Detective Gomez had not had
contact with Camacho for over five years. He last had contact
with Muniz in 2013. Detective Gomez did not know CV70 and
CV3 normally to be rival gangs.
The prosecutor gave Detective Gomez the following
hypothetical fact pattern and asked whether the “crime could be
committed for the benefit of, at the direction of, or in association
with a criminal street gang, with a specific intent to promote or
further or assist in criminal conduct by members of that gang”:
“[A]ssume gang member A is a member of the Blue gang,
and gang member A gets in a fight with a member of a Yellow
gang. That fight ends. Gang member A then has a conversation
with his girlfriend, who also happens to be a member of Blue
gang. The girlfriend—this is happening at a home. The
girlfriend goes inside of the home, makes a phone call. As the
girlfriend is making this phone call, a witness present at this
home walks inside and overhears this conversation and hears the
girlfriend tell the person on the phone that some shit is going on
with the Yellow gang, this is the Blue gang, and this is some hood
shit.
10
“Following this phone call, minutes later, gang member A
and the member of the Yellow gang starts to fight again. As they
are fighting, another individual, gang member B, is also a
member of the Blue gang, shows up with a hammer, striking the
member of the Yellow gang three times in the head, while gang
member A is also punching this person all over his body. The
witness tries to intervene, and gang member B reaching towards
his waistband towards a gun and wants to continue fighting.
Gang member B then tells the witness that he was told that
something was happening and that this was a hood thing.”
Based on the hypothetical fact pattern, Detective Gomez
opined that the second fight was for the benefit of the Blue gang.
He testified, “I think the fact that the gang member A from the
Blue gang and the other individual from Yellow gang, their fight
is one thing, but as soon as the phone call is made and
statements are made regarding this is against the Yellow gang
and that this is a hood thing, then it does become a gang incident.
“I believe the other Blue gang member that shows up with
a hammer and starts attacking the Yellow gang member is also
in support of the gang incident.
“I think with all of that, yes, it is in the benefit of the gang,
because—at the beginning it is just a fight between Yellow and
Blue. But once the other Blue shows up and they jump in and he
starts attacking him with the hammer, it becomes pretty much a
beat down, and I think that that is—he is helping out his fellow
gang member. I believe it instills fear in the Yellow gang,
showing that individual from the Yellow gang and whoever sees
him in the hospital that this is what happens when you mess
with the Blue gang.
11
“I think anybody—any witnesses that are neighbors that
happen to be walking down the street or looking out a window or
looking out a car and sees this happening, I believe that also
instills fear in them, showing that this is what could possibly
happen to you if you go against anything or if you attack or get
into a fight with someone from the Blue gang. So it benefits the
Blue gang by bolstering their street credit or intimidation among
people, neighbors, people on the street, which in turn would allow
them to continue with any type of criminal enterprise, such as
dealing drugs or committing street robberies for fear that if they
go against this Blue gang, this could possibly be what happens to
you if you go against Blue.”
Detective Gomez added that the third Blue gang member
would have been working in association with the first Blue gang
member. There would have been consequences for the third Blue
gang member had he not shown up and backed up the Blue gang
after receiving a call that there was an issue between the Blue
and Yellow gangs.
According to Detective Gomez, people get in fights, even if
they are gang members, because they are mad at each other.
Sometimes, people get in fights because their girlfriends are mad
at each other.
III. DISCUSSION
A. Nondisclosure of Confidential Witness
During the preliminary hearing, Detective Jose Arias
testified that after receiving information from a confidential
informant, he included Muniz’s photograph as part of a photo
12
array that he showed to Mariana. Mariana chose the photograph
of Muniz as being the person who had struck Duran with a
hammer. On April 4, 2018, Camacho filed a motion to disclose
the identity of the confidential informant. Muniz joined in the
motion. On April 30, 2018, the trial court conducted an in
camera hearing and denied the motion, concluding that the
informant was not a material witness.
Muniz contends that the trial court erred and requests that
we review the sealed reporter’s transcript for April 30, 2018, to
determine whether there was any such error.
The prosecution must disclose the name of an informant
who is a material witness in a criminal case or suffer dismissal of
the charges against the defendant. (Eleazer v. Superior Court
(1970) 1 Cal.3d 847, 851.) An informant is a material witness if
there appears, from the evidence presented, a reasonable
possibility that he or she could give evidence on the issue of guilt
that might exonerate the defendant. (People v. Borunda (1974)
11 Cal.3d 523, 527.) “However, an informant is not a material
witness when “‘he simply points the finger of suspicion toward a
person who has violated the law . . . .”’ [Citation.]” (People v.
Wilks (1978) 21 Cal.3d 460, 469.) We review the trial court’s
ruling concerning the disclosure of a confidential informant under
the abuse of discretion standard. (People v. Hobbs (1994) 7
Cal.4th 948, 976.) Here, based on our review of the sealed
transcript, we hold that the court did not err in denying
disclosure of the in camera hearing and in sealing the transcript.
13
B. Sufficiency of the Evidence
Muniz contends that insufficient evidence supported his
assault with a deadly weapon and willful, deliberate, and
premeditated attempted murder convictions. Muniz and
Camacho argue that insufficient evidence supported the gang
enhancement findings.
1. Standard of Review
“‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citation.] We determine ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’ [Citation.] In so doing, a
reviewing court ‘presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.’” (People v. Edwards (2013) 57 Cal.4th 658, 715.) “A
reversal for insufficient evidence ‘is unwarranted unless it
appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support”’ the jury’s verdict.” (People v.
Zamudio (2008) 43 Cal.4th 327, 357.) The same standard applies
to a claim that insufficient evidence supported a jury’s gang
enhancement finding. (People v. Villalobos (2006) 145
Cal.App.4th 310, 321–322.)
14
2. Substantive Offenses
Muniz argues insufficient evidence supports his assault
with a deadly weapon and attempted murder convictions because
Mariana’s identification of him as the assailant with the hammer
was unreliable and inconsistent. We disagree.
Muniz argues that “three substantial inconsistencies” in
Mariana’s testimony “prohibit[ed]” a rational trier of fact from
finding her credible. First, Mariana offered different accounts of
whether the assailants left together or separately and whether
they left in a car or on foot. Second, she offered different
accounts of which assailant was armed with a gun. Third, she
admitted lying about the incident and adding significant details.
Mariana’s identification3 of Muniz as the assailant with the
hammer also is not credible, Muniz argues, because he did not
match the physical description Mariana gave of the assailant.
“In deciding the sufficiency of the evidence, a reviewing
court resolves neither credibility issues nor evidentiary conflicts.
[Citation.] Resolution of conflicts and inconsistencies in the
testimony is the exclusive province of the trier of fact. [Citation.]
Moreover, unless the testimony is physically impossible or
inherently improbable, testimony of a single witness is sufficient
to support a conviction. [Citation.]” (People v. Young (2005) 34
Cal.4th 1149, 1181.)
3 Muniz notes that his counsel, in closing argument, pointed
out “problems” with the photo array—Muniz was the only one
wearing a red shirt, his photo was first in the array, and he was
the baldest man in the array. Muniz does not argue that the
photo array was unduly suggestive rendering Mariana’s
identification a due process violation. (See People v. Avila (2009)
46 Cal.4th 680, 698.)
15
Mariana identified Muniz from a photo array pretrial as
the assailant who struck Duran with the hammer and was sure
of her identification. She again identified defendant at trial as
the assailant with the hammer. It was the jury’s role to resolve
any issues with Mariana’s credibility. (People v. Young, supra, 34
Cal.4th at p. 1181.) Mariana’s identification of Muniz was
neither physically impossible nor inherently improbable.
Accordingly, it was sufficient to support Muniz’s conviction.
(Ibid.)
3. Gang Enhancements
a. Claim the offenses were for personal and not
gang reasons
Camacho and Muniz argue that insufficient evidence
supports the gang enhancement findings because the evidence
shows that the assault and attempted murder were committed
for personal and not gang reasons. We disagree.
Camacho argues, “The incident itself began as a family
matter. That Mariana heard Maribel on the phone talking to
someone and referring to CV3 and a ‘hood matter,’ did not
necessarily make the resulting assault with a hammer on Duran
a gang case.” Principally, Camacho and Muniz rely on Mariana’s
statement to Muniz after Muniz struck Duran with the hammer
that the fight between Camacho and Duran was a family matter,
and Muniz’s response that he was there to back up his brother-in-
law.
Viewing the evidence in the light most favorable to the
prosecution, substantial evidence supports the jury’s gang
16
enhancement findings. The evidence demonstrates that the
dispute between Camacho and Duran began as, and the first
fight concerned, a family matter. Prior to the second fight,
however, that dispute turned into a gang matter.
After the first fight, Duran, an inactive CV70 gang
member, jumped over the fence and attempted to contact his
friend Luis, a CV70 gang member. Camacho, a CV3 gang
member, spoke with Maribel, also a CV3 gang member. After
that conversation, Maribel went inside the house and made a
phone call during which she said, “Well, Stomper got down with
Wolf from 70s, and because Jose had run across the street.” She
said, “[H]e is from 70s, and because Stomper from CV3, it is a
hood matter now.” She further said, “Hey, there is shit going
down with the 70. You need to come through. This is CV3 all the
way.” Maribel then obtained the key and opened the property’s
gate, allowing CV3 gang member Muniz to enter the property.
During the second fight, Camacho “locked” up Duran and turned
him around so his fellow gang member Muniz could strike him
with a hammer. When Duran fell to the ground, Camacho
punched him in the face while Muniz struck him with the
hammer.
In addition, Muniz admitted the attack was gang-
motivated. After Mariana refused Muniz’s demand to bring out
Duran from her and Duran’s room after the second fight, she and
Muniz calmed down and had a conversation. Apart from
claiming he was there to back up his brother-in-law, Muniz said
“[h]e received a call saying because Jose was from 70s and he was
from, I guess, a different gang, Mr. Camacho, that is why he was
there.”
17
Given a set of hypothetical facts based on this case,
Detective Gomez, the prosecution’s gang expert, testified that the
offenses were committed for the benefit of a gang. Once the
girlfriend in the hypothetical made the phone call in which she
referred to a rival gang and said, “[T]his is a hood thing,” the
dispute became a gang incident. The third Blue gang member
was working in association with the first Blue gang member.
b. Assembly Bill No. 333
Camacho and Muniz contend that in light of Assembly Bill
No. 333’s changes to section 186.22, we must reverse the true
finding on the criminal street gang enhancement. The Attorney
General agrees as do we.4
Assembly Bill No. 333 narrowed section 186.22’s definition
of a “‘criminal street gang’” and altered the section’s
requirements for proving a “‘pattern of criminal gang activity.’”
(People v. Lopez (2021) 73 Cal.App.5th 327, 344–345 (Lopez).) We
agree with the parties that Assembly Bill No. 333, which took
effect on January 1, 2022, applies retroactively to defendants’
non-final appeals.5 (Lopez, supra, 73 Cal.App.5th at pp. 343–
344.)
4 In transferring this matter back to this court, the Supreme
Court ordered that we vacate our prior decision. It did not limit
its order only to that part of our decision that related to
Camacho. Accordingly, we interpret the court’s order as also
applying to Muniz and thus we have jurisdiction to consider
Muniz’s Assembly Bill No. 333 argument.
5 The Attorney General agrees that the provisions of
Assembly Bill No. 333 that are at issue in this appeal apply
18
Camacho and Muniz argue, in part, that the prosecution
presented insufficient evidence to show CV3 engages in a pattern
of criminal activity under Assembly Bill No. 333’s amendments to
section 186.22 because neither of the predicate offenses on which
the prosecution relied—Steve Granada’s 2009 conviction for
violating section 12021, subdivision (a)(1) and Camacho’s 2008
conviction for violating section 245, subdivision (a)(2)—occurred
within three years of the offenses in this case—committed in
2017—as section 186.22, subdivision (e)(1) now requires. The
Attorney General concedes that evidence was insufficient to show
a pattern of criminal activity under the amended statute.
“When a statutory amendment adds an additional element
to an offense, the prosecution must be afforded the opportunity to
establish the additional element upon remand. (People v.
Figueroa (1993) 20 Cal.App.4th 65, 71–72 & fn. 2 . . . .) Such a
retrial is not barred by the double jeopardy clause or ex post facto
principles because the question of whether [the evidence
established the new element] was not relevant to the charges at
the time of trial and accordingly, this question was never tried.
(See [Id.] at pp. 69–72 & fn. 2.)” (People v. Eagle (2016) 246
Cal.App.4th 275, 280.) Accordingly, we reverse the true findings
on Camacho’s and Muniz’s criminal street gang enhancements
and remand with directions to permit the prosecution to retry
those enhancements under the current law if it so elects. (Ibid.)6
retroactively. The Attorney General disputes that newly-enacted
section 1109 applies retroactively.
6 Muniz additionally challenges his convictions on the
grounds that the trial court erred in failing to bifurcate the trial
on the gang allegations, under the law as it existed at the time of
19
C. The Prosecution’s Use of Camacho’s Bifurcated Prior
Conviction to Prove the Gang Allegations
Camacho contends the trial court abused its discretion
under Evidence Code section 352 when it permitted the
prosecution to use one of his bifurcated prior convictions as a
predicate offense in proving the gang allegation. Because we
reversed Camacho’s gang enhancement above, this contention is
now moot.
D. Senate Bill No. 775
Camacho contends we must reverse his willful, deliberate,
and premeditated attempted murder conviction, which rested on
a natural and probable consequences theory of aiding and
abetting, in light of Senate Bill No. 775. We agree.
On October 5, 2021, during the pendency of this appeal, the
Governor signed Senate Bill No. 775 which amended section
1170.95 (now section 1172.6) to permit resentencing of certain
persons convicted of attempted murder under a natural and
probable consequences theory of guilt. (§ 1172.6, subd. (a).) The
trial, and that the introduction of gang evidence at trial “may
have prejudiced the jury members to view [him] in a more
negative light . . . .” The Attorney General argues Muniz
forfeited this issue by failing to move for bifurcation in the trial
court. We agree with the Attorney General. (People v. Hinton
(2006) 37 Cal.4th 839, 894 [the failure to object to the admission
of evidence forfeits the issue on appeal]; People v. Pinholster
(1992) 1 Cal.4th 865, 935 [questions relating to the admissibility
of evidence are forfeited in the absence of an objection in the trial
court].)
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amendments became effective January 1, 2022. Section 1172.6,
subdivision (g) provides that a person whose conviction for
attempted murder is not final may challenge on direct appeal the
validity of that conviction based on the changes made to sections
188 and 189 by Senate Bill No. 1437.
Camacho and the Attorney General agree that the natural
and probable consequences doctrine is no longer a valid theory of
guilt for attempted murder and thus the trial court instructed on
legally valid and invalid theories of guilt. When a jury is
instructed on both legally valid and invalid theories, we “presume
the legally invalid theory infected the verdict because jurors are
not ‘“‘equipped to determine whether a particular theory of
conviction submitted to them is contrary to law . . . .’”’ (In re
Martinez (2017) 3 Cal.5th 1216, 1224 . . . .)” (People v. Sanchez
(2022) 75 Cal.App.5th 191, 196–197 (Sanchez).) Under such a
circumstance, we “must reverse the conviction unless, after
examining the entire cause, including the evidence, and
considering all relevant circumstances, [we] determine[] the error
was harmless beyond a reasonable doubt.” (People v. Aledamat
(2019) 8 Cal.5th 1, 3 (Aledamat); Sanchez, supra, 75 Cal.App.5th
at p. 197.)
1. Background
The trial court instructed the jury that it could convict
Camacho of attempted murder as a direct perpetrator, a direct
aider and abettor, an aider and abettor under the natural and
probable consequences doctrine, or as a conspirator under the
natural and probable consequences doctrine. (CALJIC Nos. 3.00
[Principals—Defined]; 3.01 [Aiding and Abetting—Defined]; 3.02
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[Principals—Liability for Natural and Probable Consequences]7;
6.11 [Conspiracy—Joint Responsibility]8.)
7 Specifically, the trial court instructed the jury on the
natural and probable consequences theory as follows: “One who
aids and abets another in the commission of a crime is not only
guilty of that crime, but is also guilty of any other crime
committed by a principal which is a natural and probable
consequence of the crime original aided and abetted.
“In order to find the defendant guilty of the crime of
attempted murder, as charged in count 3, you must be satisfied
beyond a reasonable doubt that:
“1. The crime of assault with a deadly weapon was
committed.
“2. That the defendant aided and abetted that crime.
“3. That a co-principal in that crime committed the crime
of attempted murder; and
“4. The crime of attempted murder was a natural and
probable consequence of the commission of the crime of assault
with a deadly weapon.
“In determining whether a consequence is natural and
probable, you must apply an objective test, based not on what the
defendant actually intended, but on what a person of reasonable
and ordinary prudence would have expected likely to occur. The
issue is to be decided in light of all of the circumstances
surrounding the incident.
“A natural consequence is one which is within the normal
range of outcome that may . . . reasonably be expected to occur if
nothing unusual has intervened.
“Probable means likely to happen.”
8 The trial court instructed the jury, in part, “A member of a
conspiracy is not only guilty of the particular crime that to his or
her knowledge his or her confederates agreed to and did commit,
but is also liable for the natural and probable consequences of
any crime of a co-conspirator to further the object of the
22
During closing argument, the prosecutor argued that
Camacho and Muniz conspired to assault Duran and thus the
jury could convict Camacho of attempted premeditated murder
under a natural and probable consequences theory. The
prosecutor argued, “A member of a conspiracy committed another
crime. In this case, it is to further the conspiracy. Mr. Muniz
tried to kill Mr. Duran, and that attempted murder was a natural
and probable consequences.
“All of that simply said, Mr. Camacho, Mr. Muniz, joined
into this plan. Mr. Camacho thought all along, all that is going to
take place is an assault, that they were just going to beat up on
Mr. Duran. If Mr. Muniz had any other intention, regardless of
whether Mr. Camacho knows what he is going to do, Mr.
Camacho is on the hook for that. So again, it’s a natural and
probable—does a reasonable person, what they think, if someone
is going to beat up a human being with a dangerous or deadly
weapon, could they possibly kill them? Of course, depending on
where they hit them, depending on how many times they hit
them. So in this case, I don’t need to show to you that Mr.
conspiracy, even though that crime was not intended as a part of
the agreed upon objective and even though he or she was not
present at the time of the commission of that crime.
“[¶] . . . [¶]
“In determining whether a consequence is ‘natural and
probable’ you must apply an objective test based not on what the
defendant actually intended but on what a person of reasonable
and ordinary prudence would have expected would be likely to
occur. The issue is to be decided in light of all of the
circumstances surrounding the incident. A ‘natural consequence’
is one which is within the normal range of outcomes that may be
reasonably expected to occur if nothing unusual has intervened.
‘Probable’ means likely to happen.”
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Camacho had the personal intent that he personally wanted to
kill Jose Duran or even that he knew that Mr. Muniz came over
there and was going to kill him. That is not what the law
requires, because as soon as they enter into the agreement to
attack [Duran] and to assault him, anything that happens that is
reasonable, anything that is a natural and probable consequence
of that, he is on the hook for. That’s why this rule applies, even if
the act was not [a part] of the original plan.
“Again, members of the jury, that is exactly why Mr.
Camacho is also, and he is guilty of the attempted murder, and
that is premeditated, deliberate and willful. They worked and
acted as a team in this case.”
In rebuttal closing argument, the prosecutor again
explained to the jury the prosecution’s theory that Camacho was
guilty of Duran’s attempted murder as the natural and probable
consequence of a conspiracy. The prosecutor argued that after
Camacho’s first fight with Duran, Camacho spoke with Maribel
who in turn called Muniz stating, “‘It’s a hood thing.’” Muniz
then showed up and assaulted Duran. The prosecutor argued,
“The law in this case is that they called over a gang member, and
they felt the only thing that could have happened, Mr. Camacho
only thought that Mr. Muniz was coming over to help him beat
this guy up. At the very least, the fact that Mr. Muniz had a
different mind frame, that he took that assault one step forward,
that is natural and probable consequences.”
Later, the prosecutor added, “If you believe that [Camacho]
at least agreed this assault was going to happen, then you should
know that a natural and reasonable thing that could happen
when you are trying to just assault someone, punch someone, if
you do it strong enough, you do it with the right thing, which is a
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hammer, that can cause someone death. That is all the evidence
you need in order to find Mr. Camacho also guilty of the
attempted murder.”
Finally, the prosecutor concluded, “Two men, one beats
someone in the head, the other one punched him as he was on the
floor. That is the assault. One did it and the other one aided and
abetted him. They are guilty of that. [¶] During that process,
one person, yes, he intended to kill him. Mr. Muniz intended to
kill him by the number of times and the place that he kept
striking him. Because Mr. Camacho agreed to enter into that
conspiracy to commit an assault, he should have known someone
could possibly be killed, and because he should have known that,
he is also guilty of the attempted murder.”
2. Analysis
The Attorney General argues the trial court’s error was
harmless beyond a reasonable doubt because “Camacho’s actions
during and after the assault show that he planned the attempted
murder with his co-conspirator Muniz.” The trial prosecutor
assessed the evidence differently. In her initial closing
argument, the prosecutor argued, “Mr. Camacho thought all
along, all that is going to take place is an assault, that they were
just going to beat up on Mr. Duran.” In her rebuttal closing
argument, the prosecutor argued, “The law in this case is that
they called over a gang member, and they felt the only thing that
could have happened, Mr. Camacho only thought that Mr. Muniz
was coming over to help him beat this guy up. At the very least,
the fact that Mr. Muniz had a different mind frame, that he took
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that assault one step forward, that is natural and probable
consequences.”
The Attorney General further argues that the People
presented strong evidence that Camacho directly aided and
abetted the attempted murder. According to the Attorney
General, the evidence showed that Camacho and Duran were
members of rival gangs who engaged in a fistfight. After Duran
left, Camacho and his fellow gang member and girlfriend Maribel
spoke. Maribel then called fellow gang member Muniz and told
him the fight was “‘a hood matter.’” Soon after, Camacho and
Duran resumed their fistfight. Muniz then arrived and struck
Duran on the head several times with a hammer. Camacho did
not intervene or otherwise indicate that he did not intend for a
lethal attack. Instead, he continued to punch Duran in the face.
Camacho and Muniz left the property together.
The evidence the Attorney General cites is evidence from
which a reasonable jury might have found Camacho guilty of
Duran’s attempted murder on a direct aiding and abetting
theory. It is not, however, evidence that shows that the trial
court’s erroneous natural and probable consequences instructions
were harmless beyond a reasonable doubt, particularly in light of
the prosecutor’s arguments to the jury. (Aledamat, supra, 8
Cal.5th at p. 3; Sanchez, supra, 75 Cal.App.5th at p. 197.)
Accordingly, we reverse Camacho’s attempted murder conviction.
Upon issuance of the remittitur, the prosecution may retry
Camacho for willful, deliberate, and premeditated attempted
murder. (People v. Perez (2022) 78 Cal.App.5th 192, 205, review
granted Aug. 17, 2022, S275090 [double jeopardy is not
implicated where Senate Bill No. 775 required reversal of an
attempted murder conviction]; People v. Hola (2022) 77
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Cal.App.5th 362, 376, fn. omitted [“[W]hen there is a change in
the law during an appeal that invalidates a previously valid legal
theory relied upon by [the] prosecution and reversal is thereby
warranted, a new trial should be permitted on legally valid
theories”].)
E. Remaining Issues
In addition to the issues defendants raised and we
addressed above, Camacho raises several sentencing issues, some
of which may apply to Muniz and some of which the Attorney
General concedes, and a clerical issue. Because we reverse
Camacho’s attempted murder conviction and Camacho’s and
Muniz’s gang sentence enhancements and remand for further
proceedings, we do not reach these issues. Under the full
resentencing rule the trial court is to address these issues on
remand. (People v. Buycks (2018) 5 Cal.5th 857, 893.)
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IV. DISPOSITION
Camacho’s willful, deliberate, and premeditated attempted
murder conviction and Camacho’s and Muniz’s gang sentence
enhancements are reversed. The matter is remanded to allow the
prosecution to decide whether to retry Camacho on the willful,
deliberate, and premeditated murder charge and Camacho and
Muniz on the gang sentence enhancement allegations. Whether
or not the prosecution elects to retry either defendant, the trial
court is to resentence defendants under the full resentencing
rule. The judgments are otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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