People v. Campos CA2/7 ( 2021 )

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, B308581
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA316087-09)
v.
PASQUAL CAMPOS,
Defendant and Appellant.
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.
__________________
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 the 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 counts 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, he 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.
2
regarding determination of petitions for resentencing under
section 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.) (Stats. 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, 842-843 (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, subdivision (b), and the court, following the
procedures detailed in section 1170.95, subdivision (c),
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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. Verdugo (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—for 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 resentencing”]; 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 pp. 329-
330, review granted [“[T]he court must at least examine the
complaint, 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”].)
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2. The Superior Court Properly Ruled Campos Is Ineligible
for Relief as a Matter of Law
In accord with the procedures described in People v. Cole
(2020) 52 Cal.App.5th 1023, review granted October 14, 2020,
S264278, we appointed counsel to represent Campos on appeal.
After reviewing the record, appointed counsel filed a brief raising
no issues. Appointed counsel advised Campos on 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 we 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). (§ 1170.95,
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 second 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 1437
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and a requirement for relief under section 1170.95. By the plain
terms of the statute, Campos was not eligible for resentencing.
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 pp. 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;
People 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.
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