Filed 4/12/21 P. v. Camacho CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C090113
Plaintiff and Respondent, (Super. Ct. No. 15F01261)
v.
FRANK CAMACHO,
Defendant and Appellant.
Defendant Frank Camacho and codefendants Joshua Parrish and Adam Villa were
convicted of attempted murder, attempted robbery, and related firearm crimes. On
appeal, defendant argues his conviction for attempted murder must be reversed in the
wake of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill
1437). We disagree.
Defendant also contends his custody credits were miscalculated in the trial court.
The People concede the issue. We will accept the People’s concession and modify the
judgment accordingly. We will affirm the judgment as modified.
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BACKGROUND
Given defendant’s contentions on appeal, we provide only a brief recitation of the
facts.1 In February 2015, defendant, Parrish, and Villa arrived at the victim’s home under
the pretext of purchasing marijuana. When the victim opened the door, Villa pointed a
gun in his face and a violent melee ensued. The victim, who was unarmed, began
fighting with Villa over the gun. Meanwhile, defendant and Parrish, who also were
armed, pushed their way inside. During the tussle, the three intruders each shot at the
victim a total of five to 10 times. A friend of the victim, who was visiting at the time of
the incident, also was badly beaten. Eventually, the victim chased the three intruders
outside and the men left in a waiting vehicle.
The victim suffered several gunshot wounds to his legs, abdomen, buttocks,
bladder, stomach, and back. These injuries required the victim to undergo multiple
surgeries.
In December 2017, a jury found defendant guilty of attempted murder and
attempted robbery while entering a structure and acting in concert. (Pen. Code,
§§ 664/187, subd. (a), 664/211, 213, subd. (a)(1)(A).)2
In July 2019, the trial court sentenced defendant to state prison for an aggregate
term of 27 years, as follows: seven years for the attempted murder conviction, plus 20
years consecutive for a firearm enhancement, plus six years consecutive for the attempted
robbery conviction (stayed under § 654), plus another 20 years for a firearm enhancement
(stayed under § 654).
1 Defendant was tried alongside his codefendants Parrish and Villa. This factual
background is taken from our prior decision in People v. Villa (July 14, 2020, C089392)
[nonpub. opn.], review granted September 16, 2020, S263899.
2 Undesignated statutory references are to the Penal Code.
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DISCUSSION
A. Senate Bill 1437 (2017-2018 Reg. Sess.)
Defendant does not dispute that he is precluded from petitioning for relief under
section 1170.95 because he was convicted of attempted murder and relief under section
1170.95 is limited to defendants convicted of murder. In fact, there is broad consensus
that section 1170.95 does not provide a mechanism to vacate an attempted murder
conviction. (See, e.g., People v. Love (2020) 55 Cal.App.5th 273, 282, review granted
Dec. 16, 2020, S265445; People v. Alaybue (2020) 51 Cal.App.5th 207, 223; People v.
Medrano (2019) 42 Cal.App.5th 1001, 1008, review granted Mar. 11, 2020, S259948
(Medrano); People v. Munoz (2019) 39 Cal.App.5th 738, 754, review granted Nov. 26,
2019, S258234 (Munoz); People v. Lopez (2019) 38 Cal.App.5th 1087, 1105, review
granted Nov. 13, 2019, S258175 (Lopez).) Thus, “even courts that have taken a broader
interpretation of the changes made by Senate Bill [ ] 1437 . . . have . . . concluded that
section 1170.95 limits relief only to defendants convicted of murder.” (People v. Flores
(2020) 44 Cal.App.5th 985, 994.)
Nevertheless, relying on the decision in Medrano, supra, 42 Cal.App.5th 1001,
review granted March 11, 2020, S259948, defendant contends the changes made by
Senate Bill 1437 entitle him to review of his attempted murder conviction on direct
appeal under the retroactivity principles first articulated in In re Estrada (1965) 63 Cal.2d
740. We disagree.
Unlike the consensus that has developed on the inapplicability of the section
1170.95 petition process to attempted murder convictions, there has been disagreement
amongst the Courts of Appeal on whether Senate Bill 1437’s abrogation of the natural
and probable consequences doctrine applies to attempted murder, such that a defendant
whose conviction is not yet final may take a direct appeal based upon the legislative
amendments to sections 188 and 189. (Compare Medrano, supra, 42 Cal.App.5th at p.
1013 [under Senate Bill 1437, “the natural and probable consequences doctrine is no
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longer a viable theory of accomplice liability for attempted murder”], review granted
Mar. 11, 2020, S259948, People v. Larios (2019) 42 Cal.App.5th 956, 970 [same],
review granted Feb. 26, 2020, S259983, and People v. Sanchez (2020) 46 Cal.App.5th
637, 642 [same], review granted June 10, 2020, S261768, with Lopez, supra, 38
Cal.App.5th at pp. 1104, 1106 [“The Legislature’s obvious intent [was] to exclude
attempted murder from the ambit of the Senate Bill 1437 reform” and “legislative
prohibition of vicarious liability for murder does not, either expressly or impliedly,
require elimination of vicarious liability for attempted murder”], review granted Nov. 13,
2019, S258175, Munoz, supra, 39 Cal.App.5th at p. 753 [same], review granted Nov. 26,
2019, S258234, and People v. Dennis (2020) 47 Cal.App.5th 838, 844 [same], review
granted July 29, 2020, S262184.)
As explained below, we adopt the reasoning of those courts that find Senate Bill
1437 does not apply to convictions for attempted murder.
“Our role in construing a statute is to ascertain the intent of the Legislature in
order to effectuate the purpose of the law. [Citation.] Because the statutory language is
generally the most reliable indicator of that intent, we look first at the words themselves,
giving them their usual and ordinary meaning and construing them in context. [Citation.]
If the plain language of the statute is clear and unambiguous, our inquiry ends, and we
need not embark on judicial construction. [Citations.]” (People v. Johnson (2002) 28
Cal.4th 240, 244.)
Based on the plain language of Senate Bill 1437, we conclude that the bill applies
only to murder convictions using the law’s petition procedure. “[T]here is nothing
ambiguous in the language of Senate Bill 1437, which, in addition to the omission of any
reference to attempted murder, expressly identifies its purpose as the need ‘to amend the
felony murder rule and the natural and probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major participant in the underlying
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felony who acted with reckless indifference to human life.’ [Citation.] Had the
Legislature meant to bar convictions for attempted murder under the natural and probable
consequences doctrine, it could easily have done so.” (Lopez, supra, 38 Cal.App.5th at p.
1104, review granted Nov. 13, 2019, S258175; see also Munoz, supra, 39 Cal.App.5th at
p. 757 [all indications from legislative history are that the exclusion of attempted murder
was intentional], review granted Nov. 26, 2019, S258234.) Instead, the Legislature
repeatedly referred only to first and second degree murder. (Lopez, at p. 1105, review
granted.) Notably, in discussing the fiscal impact of Senate Bill 1437, the Legislature
also referred only to defendants serving prison sentences for first and second degree
murder. (Lopez, at p. 1105, review granted.)
“The Legislature’s obvious intent to exclude attempted murder from the ambit of
the Senate Bill 1437 reform is underscored by the language of new section 1170.95 . . . .
Section 1170.95, subdivision (a), authorizes only those individuals ‘convicted of felony
murder or murder under a natural and probable consequences theory’ to petition for
relief; and the petition must be directed to ‘the petitioner’s murder conviction.’ ” (Lopez,
supra, 38 Cal.App.5th at pp. 1104-1105, review granted Nov. 13, 2019, S258175.)
Furthermore, to the extent that defendant’s assertion that we may reverse his
conviction on direct appeal rests upon In re Estrada, supra, 63 Cal.2d 740, we note that a
“petitioning procedure like that created by section 1170.95 amounts to . . . an indication
that the Legislature intended an ameliorative provision to apply prospectively only.
When the Legislature creates a statutory procedure by which defendants may avail
themselves of a change in the law, that remedy must be followed and relief is not
available on direct appeal. As several recent authorities recognize, this means that Senate
Bill 1437 should ‘not be applied retroactively to nonfinal convictions on direct appeal.’ ”
(Munoz, supra, 39 Cal.App.5th at p. 751, review granted Nov. 26, 2019, S258234; see
also People v. Anthony (2019) 32 Cal.App.5th 1102, 1158; People v. Martinez (2019)
31 Cal.App.5th 719, 729 [“there is no indication that reversal of a defendant’s sentence
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on direct appeal without compliance with the procedures outlined in section 1170.95 was
among the ‘rights’ the Legislature sought to preserve in enacting Senate Bill 1437”].)
We also are not persuaded by defendant’s argument that the omission of attempted
murder from Senate Bill 1437 would incentivize murder. In support of this claim,
defendant relies on the decision in Sanchez wherein the Court of Appeal reasoned that a
“person may be convicted of attempted murder on natural and probable consequences
theory but a person may no longer be convicted of murder on that theory. This, in turn,
means that persons convicted of murder on this theory will inevitably end up with lesser
overall sentences than those convicted of attempted murder on this theory. And this, in
turn, will ‘incentiviz[e] murder’ (ostensibly, over attempted murder) because the sentence
for murder on this theory will invariably be less than the sentence for attempted murder
on this theory.” (People v. Love, supra, 55 Cal.App.5th at p. 290, review granted Dec.
16, 2020, S265445, citing People v. Sanchez, supra, 46 Cal.App.5th at p. 643, review
granted June 10, 2020, S261768.) We do not find this reasoning persuasive.
We instead follow the reasoning of the Court of Appeal in Munoz, in which the
court said “it is far from clear that interpreting Senate Bill 1437 to apply to convictions
for murder, but not attempted murder, will always, or typically, result in longer sentences
for the latter.” (Munoz, supra, 39 Cal.App.5th at pp. 757-758, review granted Nov. 26,
2019, S258234.) The basic punishment for attempted murder is already far less severe
than the punishment for murder; thus, this interpretation does not undermine the goal of
making punishment commensurate with culpability. (Id. at p. 758.) And “[t]o the extent
a disparity might exist in an individual case, that circumstance is not sufficient to render
the plain language of the statute absurd.” (Id. at pp. 759-760.)
In sum, we conclude Senate Bill 1437 does not apply to convictions for attempted
murder and defendant may not seek relief by way of direct appeal.
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B. Custody Credits
Defendant also contends his custody credits were miscalculated in the trial court.
Defendant was arrested on April 16, 2015, and remained in custody until July 18, 2019,
when he was sentenced, for a total of 1,555 days. The trial court, however, awarded
defendant only 1,554 days of actual custody credits. The People concede this was error
and agree defendant is entitled to an additional day of custody credit. We accept the
People’s concession and modify the judgment accordingly.
DISPOSITION
The judgment is modified to include 1,788 days of custody credits (1,555 days of
actual credit, 233 days of conduct credit). The judgment is affirmed as modified. The
trial court is directed to prepare an amended abstract of judgment and deliver a certified
copy of the same to the Department of Corrections and Rehabilitation.
KRAUSE , J.
We concur:
MAURO , Acting P. J.
RENNER , J.
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