Filed 3/11/21 P. v. Camerano CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B307107
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA171892-01)
v.
RAYMOND CAMERANO,
Defendant and Appellant.
THE COURT:
Raymond Camerano (defendant) appeals the trial court’s
denial of his motion for relief under Penal Code section 1170.951
after briefing and a hearing at which he was represented by
counsel. We conclude there was no error and affirm.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
2
I. Facts
A. The underlying crime
On June 3, 1998, defendant and a number of fellow gang
members were driving through rival gang territory in a Cadillac
registered to defendant. They spotted “Randolph Cisneros, a
young deaf-mute man,” and gestured to him “to come to the car.”
“Cisneros was about a foot from the passenger side of the car, and
it appeared that he was trying to understand what the occupants
of the car were saying” when shots rang out. “Cisneros was shot
three times and died as a result of two gunshot wounds to the left
side of his back. The shots were consistent with having been
fired by someone seated in a car.”
B. Charging, conviction and appeal
The People charged defendant with the first degree murder
of Cisneros (§ 187, subd. (a)), and further alleged the special
circumstance that the murder was perpetrated by means of
discharging a firearm from a motor vehicle with the intent to
inflict death (§ 190.2, subd. (a)(21)) and that a principal was
armed with a firearm (§ 12022, subd. (a)(1)).
The jury found defendant guilty of first degree murder, and
found both of the further allegations to be true.
In light of the special circumstance finding, the trial court
sentenced defendant to prison for life without the possibility of
parole, plus an additional one-year sentence for the firearm
enhancement.
Defendant appealed his conviction and argued, among
2 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s conviction. (People v. Camerano
(June 26, 2001, B141226) [nonpub. opn.].)
2
other things, the evidence was insufficient to support the finding
“that he aided and abetted the commission of a first degree
murder with the intent to kill.” We rejected defendant’s
arguments and affirmed the conviction in an unpublished
opinion.
C. Petition for a writ of habeas corpus
In 2019, defendant filed a petition for a writ of habeas
corpus in the superior court, seeking to have his first degree
murder convictions set aside based on People v. Chiu (2014) 59
Cal.4th 155 (Chiu), superseded by Senate Bill 1437 as stated in
People v. Gentile (2020) 10 Cal.5th 830. In Chiu, our Supreme
Court held “an aider and abettor may not be convicted of first
degree premeditated murder under the natural and probable
consequences doctrine.” (Id. at pp. 158-159, italics omitted; see
also id. at p. 165 [holding the natural and probable consequences
doctrine’s primary rationale is served, in the context of murder,
by holding an aider and abettor “culpable for the perpetrator’s
commission of the nontarget offense of second degree murder”].)
The trial court denied the petition because: “[i]n finding
true the Special Circumstance . . . , the jury necessarily found
that [defendant] was either the actual killer or, if not the actual
killer, [defendant] had the intent to kill, and aided the actual
killer in the commission of the drive-by first degree murder.
Moreover, the Appellate Court [on direct appeal] found that the
evidence sufficiently established that [defendant] was either the
actual killer or, if not the actual killer, [defendant] had the intent
to kill, and aided the actual killer in the commission of the drive-
by first degree murder.”
II. Procedural Background
On July 31, 2019, defendant filed a petition seeking
3
resentencing under section 1170.95. In the form petition,
defendant checked the boxes for the allegations that he had been
charged with murder, that he was convicted “pursuant to the
felony murder rule or the natural and probable consequences
doctrine,” and that his murder conviction would be invalid under
the “changes made to Penal Code §§ 188 and 189, effective
January 1, 2019.” He also requested the appointment of counsel.
After considering the People’s response and defendant’s reply,
and after a hearing, the trial court denied defendant’s petition on
the ground that defendant’s conviction necessarily relied on a
finding that he directly aided and abetted the killing, which
rendered him ineligible for relief under section 1170.95.
Defendant filed this timely appeal.
DISCUSSION
Defendant’s appointed counsel filed an “Opening Brief” in
which no arguable issues are raised, and asks this court for an
independent review of the record as required by People v. Wende
(1979) 25 Cal.3d 436 (Wende). On December 18, 2020, we advised
defendant that he had 30 days within which to personally submit
any grounds of appeal, contentions, or argument for us to
consider. Defendant filed an eight-page supplemental brief on
January 12, 2021.
Having reviewed the entire record and considered the
contentions in defendant’s supplemental brief, we find no
arguable basis for reversing the trial court’s order summarily
3
denying defendant relief under section 1170.95.
3 Because this appeal is from an order denying
postconviction relief rather than defendant’s first appeal of right
from a criminal conviction, defendant is not entitled
to Wende review. (People v. Cole (2020) 52 Cal.App.5th 1023
4
Summary denial of a petition for relief under section
1170.95 is appropriate, notwithstanding a defendant’s allegations
of entitlement to relief, if the record “show[s] as a matter of law
that the petitioner is not eligible for relief.” (People v. Lewis
(2020) 43 Cal.App.5th 1128, 1138, review granted Mar. 18, 2020,
S260598, italics added; People v. Verdugo (2020) 44 Cal.App.5th
320, 333, review granted Mar. 18, 2020, S260493; People v. Torres
(2020) 46 Cal.App.5th 1168, 1177, review granted June 24, 2020,
S262011; People v. Drayton (2020) 47 Cal.App.5th 965, 968
(Drayton); see also People v. Cornelius (2020) 44 Cal.App.5th 54,
58, review granted Mar. 18, 2020, S260410 [record must show
defendant is “indisputably ineligible for relief”].) A defendant is
ineligible for relief as a matter of law in cases where the record
conclusively shows that the jury actually relied—and the
defendant’s murder conviction actually rests—upon a theory of
liability that is unaffected by section 1170.95 (that is, on the
theory that defendant was the actual killer or directly aided and
abetted the killing).
Here, the record of conviction establishes as a matter of
law, that the jury in his case actually relied upon the valid theory
that defendant was either the actual killer or had aided and
abetted a first degree murder—and a conviction resting on either
of those theories is outside the ambit of section 1170.95.
(Drayton, supra, 47 Cal.App.5th at p. 968 [in assessing whether a
petitioner has established a prima facie case, the trial court
(Cole), review granted Oct. 14, 2020, S264278; see also People v.
Serrano (2012) 211 Cal.App.4th 496, 501.) Nevertheless, because
defendant has filed a supplemental brief, he is entitled to have us
review the arguments he presents in that brief. (Cole, at p.
1040.)
5
“should accept the assertions in the petition as true unless facts
in the record conclusively refute them as a matter of law”], italics
added.) With regard to the special circumstance allegation in
this case, the jury was instructed: “If you find that [defendant]
was not the actual killer of a human being, or if you find he was
the actual killer, or if you are unable to decide whether
[defendant] was the actual killer or an aider and abettor, you
cannot find the special circumstance to be true unless you are
satisfied beyond a reasonable doubt that [defendant] with the
intent to kill aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted any actor in the commission of the
murder in the first degree.” (Italics added.) The jury’s “true”
finding necessarily means that it found defendant to be the
“actual killer” or someone who directly “aided” and “abetted” the
actual killer “with the intent to kill.” A defendant convicted as
the actual killer or as a direct aider and abettor is not entitled to
relief under section 1170.95. (§§ 1170.95, subd. (a)(3), 189, subds.
(e)(1) & (e)(2).)
In his supplemental brief, defendant argues that “the
record does not show beyond a reasonable doubt that the jury did
not rely on the abrogated theory of natural and probable
4
consequences.” He is wrong. His jury was never instructed on
the natural and probable consequences theory of liability. And
4 Defendant’s claims of ineffective assistance of counsel are
beyond the scope of this appeal from the order denying
his section 1170.95 petition. (Cf. O&C Creditors Group, LLC v.
Stephens & Stephens XII, LLC (2019) 42 Cal.App.5th 546, 564,
fn. 6 [declining to consider issues that were “beyond the scope of
the . . . appeal”].)
6
although his jury heard the phrase “natural and probable
consequence” when the trial court gave the “standard instruction
defining malice” (People v. Jones (2013) 57 Cal.4th 899, 966), that
instruction uses that phrase in a different context and does not
present the natural and probable consequences theory of liability
before a jury. (See People v. Soto (2020) 51 Cal.App.5th 1043,
1056, review granted Sept. 23, 2020, S263939 [“Although the
instructions related to implied malice and the natural and
probable consequences doctrine of aiding and abetting include
similar language regarding a ‘natural consequence,’ they are
distinctly different concepts”].)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
——————————————————————————————
LUI , P. J., ASHMANN-GERST, J., HOFFSTADT, J.
7