People v. DelCambre CA2/7

Filed 3/15/22 P. v. DelCambre CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B308999

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA227612)
v.

DAMON DELCAMBRE,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Ronald S. Coen, Judge. Reversed and
remanded with directions.
Alan Siraco, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Amanda V. Lopez and Michael J.
Wise, Deputy Attorneys General, for Plaintiff and Respondent.
________________________________
Damon DelCambre, convicted in 2003 of first degree
murder with a true finding the murder had been committed
during the course of a 1994 bank robbery, appeals the superior
court’s denial of his petition for resentencing pursuant to Penal
Code section 1170.951 without issuing an order to show cause and
holding an evidentiary hearing to determine his eligibility for
relief. We agree the superior court erred in holding DelCambre’s
petition was precluded as a matter of law by the jury’s felony-
murder special-circumstance finding, made more than a decade
before the Supreme Court’s identification in People v. Banks
(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark) of the factors properly considered to assess
whether a defendant had been a major participant in an
underlying serious felony and acted with reckless indifference to
human life. The superior court also committed prejudicial error
by prematurely engaging in factfinding when it determined, as
an alternate basis for its denial of the petition, that this court’s
2004 opinion, which summarized the evidence at trial and held
that evidence was sufficient to support the felony-murder special-
circumstance finding, established DelCambre’s ineligibility for
resentencing relief. We reverse the order denying DelCambre’s
petition and remand with directions to issue an order to show
cause and to conduct further proceedings in accordance with
section 1170.95, subdivision (d).

1 Statutory references are to this code.

2
 FACTUAL AND PROCEDURAL BACKGROUND
1. DelCambre’s Felony-murder Conviction
On May 4, 1994 Nery Orellana, a security guard at the
Hanmi Bank on Western Avenue in Los Angeles, saw DelCambre
in the bank’s parking lot.2 DelCambre went over to a storage
facility for a few minutes, then returned to his car, telling the
guard the storage was too expensive. The prosecutor argued
DelCambre was familiarizing himself with the bank in
anticipation of the robbery.
In the late morning of May 5, 1994 two teenagers, wearing
hooded sweatshirts, entered the bank and, after a minute, walked
over to the security guard on duty, Eddy Sanchez, who was
standing by the door. One of the youths grabbed Sanchez’s gun;
the other held his arm. A loan officer saw this take place and
pressed the alarm button before ducking under his desk. The
loan officer then heard a shot. When he came out from behind
his desk, he saw Sanchez lying on the floor and called the 911
emergency number. By that time the two young men had fled.
Sanchez died from a gunshot wound.
As the struggle with the bank guard was taking place, one
of the tellers, after hearing what she thought was a gunshot,
suddenly saw a man (subsequently identified as DelCambre)
standing in front of her. The man told the teller to put money
into the bag he had placed on the countertop. The robber then

2 Both DelCambre and the Attorney General rely on the
summary of evidence in our opinion affirming DelCambre’s
conviction. (People v. DelCambre (Aug. 9, 2004, B168754)
[nonpub. opn.].) We do as well.

3
took the bag (containing approximately $20,000) and ran out of
the bank.
DelCambre was arrested in 2000 following the robbery of a
different bank. Orellana and the bank teller identified
DelCambre in photographic and live lineups as the person they
had seen in the parking lot and Hanmi Bank in May 1994.
DelCambre’s first trial ended in a mistrial when the jury
was unable to reach a verdict. He was convicted at a second trial
of the first degree murder of Sanchez (§ 187, subd. (a)) with a
true finding on a felony-murder special-circumstance allegation
(§ 190.2, subd. (a)(17)) and one count of robbery based on the
unrelated 2000 crime. In a bifurcated proceeding the court found
true that DelCambre had suffered two prior serious or violent
felonies within the meaning of the three strikes law (§§ 667,
subds. (b)-(i), 1170.12) and section 667, subdivision (a), and had
served three prior prison terms for felonies (§ 667.5, subd. (b)).
The trial court sentenced DelCambre to life without parole for the
special-circumstance felony murder plus a consecutive term of
25 years to life as a third strike offender for the 2000 robbery.
We affirmed DelCambre’s conviction on appeal (People v.
DelCambre (Aug. 9, 2004, B168754) [nonpub. opn.]),3 rejecting,
among other arguments, DelCambre’s contention the robbery-
murder special-circumstance finding was not supported by
substantial evidence: “[S]ufficient evidence supports a finding
that defendant acted with reckless indifference and was a major
participant in the Hanmi Bank robbery. Defendant knew there

3 Although affirming the judgment of conviction, we ordered
the abstract of judgment corrected to strike the award of
presentence custody credit.

4
was an armed security guard at the bank; he had spoken to him
the day before. The evidence supports an inference that part of
the robbers’ plan was to immediately subdue the security guard
upon entry into the bank and take the guard’s weapon while
defendant took funds from the teller. Once that was
accomplished, it became extremely likely that death could result
because the two bank robbers were in possession of a weapon
under stressful circumstances. Once the guard was shot, neither
defendant nor the other two robbers made any attempt to come to
his aid or to ascertain the extent of his injuries. Furthermore,
any contention that the evidence does not support a finding that
defendant was a major participant is belied by facts showing his
participation in the planning of the robbery by casing the scene
the day before and his instrumental role in taking money from
the cash drawer of the teller.”
2. DelCambre’s Petition for Resentencing
On October 1, 2020 DelCambre, represented by counsel,
filed a petition for resentencing under section 1170.95. In the
petition and an accompanying declaration DelCambre alleged he
had been charged and convicted under a felony-murder theory
and could not now be convicted of first or second degree murder
because of changes made to sections 188 and 189 by Senate Bill
No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate
Bill 1437).
On October 2, 2020 the superior court, without requesting
opposition from the prosecutor or appearances by either party,
denied the petition after “examin[ing] the entire record of
conviction, including the appellate opinion affirming, as modified,
petitioner’s conviction.” Citing People v. Galvan (2020)
52 Cal.App.5th 1134, review granted October 14, 2020, S264284,

5
the court ruled, although DelCambre’s trial took place well before
the Supreme Court’s decisions in Banks, supra, 61 Cal.4th 788
and Clark, supra, 63 Cal.4th 522, the jury’s special-circumstance
finding was “sufficient to summarily deny a Penal Code
section 1170.95 petition.” In addition, observing that this court’s
opinion “appeared to predict the Banks factors,” the court ruled
our holding that substantial evidence supported a finding
DelCambre had acted with reckless indifference and was a major
participant in the Hanmi Bank robbery precluded relief as a
matter of law.
DelCambre filed a timely notice of appeal.
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 substantially modified the law relating to
accomplice liability for murder, eliminating 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 narrowing the felony-murder
exception to the malice requirement for murder. (§§ 188,
subd. (a)(3), 189, subd. (e); see People v. Lewis (2021) 11 Cal.5th
952, 957 (Lewis).)4 It also authorized, through new
section 1170.95, an individual convicted of felony murder or
murder based on the natural and probable consequences doctrine
to petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have

4 As amended by Senate Bill No. 775 (2021-2022 Reg. Sess.)
(Stats. 2021, ch. 551, § 2), effective January 1, 2022, the
ameliorative provisions of Senate Bill 1437 now also apply to
attempted murder and voluntary manslaughter.

6
been convicted of murder because of Senate Bill 1437’s changes to
the definition of the crime. (See Lewis, at p. 957; Gentile, at
p. 843.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she is eligible for relief (§ 1170.95, subd. (b)(1)(A)), the court must
appoint counsel to represent the petitioner, if requested
(§ 1170.95, subd. (b)(3)),5 and direct the prosecutor to file a
response to the petition, permit the petitioner to file a reply and
determine if the petitioner has made a prima facie showing that
he or she is entitled to relief. (§ 1170.95, subd. (c); see Lewis,
supra, 11 Cal.5th at pp. 962-963.)
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he or she
falls within the provisions of section 1170.95 and is entitled to
relief, the superior court properly examines the record of
conviction, “allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.” (Lewis,
supra, 11 Cal.5th at p. 971.) However, “the prima facie inquiry
under subdivision (c) is limited. Like the analogous prima facie
inquiry in habeas corpus proceedings, the court takes petitioner’s
factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue
an order to show cause. . . . However, if the record, including the
court’s own documents, contain[s] facts refuting the allegations
made in the petition, then the court is justified in making a

5 Prior to enactment of Senate Bill No. 775 the requirement
to appoint counsel was set forth in subdivision (c) of
section 1170.95.

7
credibility determination adverse to the petitioner.” (Id. at
pp. 970-971, internal quotation marks omitted.)
If the section 1170.95, subdivision (c), prima facie showing
has been made, the court must issue an order to show cause and
hold an evidentiary hearing to determine whether to vacate the
murder conviction and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing the
prosecution has the burden of proving, “beyond a reasonable
doubt, that the petitioner is guilty of murder . . . under California
law as amended by the changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1170.95, subd. (d)(3), as amended
by Senate Bill No. 775, effective January 1, 2022.)6 The
prosecutor and petitioner may rely on the record of conviction or
offer new or additional evidence to meet their respective burdens.
(See Gentile, supra, 10 Cal.5th at pp. 853-854.)
2. Section 189, Subdivision (e)(3), and the Narrowed
Felony-murder Rule
At the time of DelCambre’s trial in 2003, section 189
permitted a conviction for felony murder by imputing malice to a
participant in an inherently dangerous felony, including robbery,
that resulted in a homicide. (See People v. Chun (2009)
45 Cal.4th 1172, 1184.) As amended by Senate Bill 1437,
section 188, subdivision (a)(3), now prohibits imputing malice
based solely on an individual’s participation in a crime and

6 Senate Bill No. 775 also amended section 1170.95,
subdivision (d)(3), to clarify that “[a] finding that there is
substantial evidence to support a conviction for murder,
attempted murder, or manslaughter is insufficient to prove,
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.”

8
requires proof of malice to convict a principal of murder except
under the revised felony-murder rule as set forth in section 189,
subdivision (e). That provision requires the People to prove
specific facts relating to the defendant’s individual culpability:
The defendant was the actual killer (§ 189, subd. (e)(1)); although
not the actual killer, the defendant, with the intent to kill,
assisted in the commission of the murder (§ 189, subd. (e)(2)); or
the defendant was a major participant in an underlying felony
listed in section 189, subdivision (a), and acted with reckless
indifference to human life, “as described in subdivision (d) of
Section 190.2,” the felony-murder special-circumstance provision
(§ 189, subd. (e)(3)).
The overlapping factors for assessing whether a defendant
was a major participant in an underlying serious felony and acted
with reckless indifference to human life for purposes of
section 190.2, subdivision (d), and thus for new section 189,
subdivision (e)(3), were identified by the Supreme Court in
Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522,
and reiterated most recently in In re Scoggins (2020) 9 Cal.5th
667 (Scoggins). As to whether the defendant was a major
participant in one of the specified felonies, the Banks Court listed
the following factors: “What role did the defendant have in
planning the criminal enterprise that led to one or more deaths?
What role did the defendant have in supplying or using lethal
weapons? What awareness did the defendant have of particular
dangers posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants? Was the
defendant present at the scene of the killing, in a position to
facilitate or prevent the actual murder, and did his or her own
actions or inaction play a particular role in the death? What did

9
the defendant do after lethal force was used?” (Banks, at p. 803,
fn. omitted.)
As to whether a defendant acted with reckless indifference
to human life, the Supreme Court has enumerated the following
factors: “Did the defendant use or know that a gun would be used
during the felony? How many weapons were ultimately used?
Was the defendant physically present at the crime? Did he or she
have the opportunity to restrain the crime or aid the victim?
What was the duration of the interaction between the
perpetrators of the felony and the victims? What was the
defendant’s knowledge of his or her confederate’s propensity for
violence or likelihood of using lethal force? What efforts did the
defendant make to minimize the risks of violence during the
felony?” (Scoggins, supra, 9 Cal.5th at p. 677; accord, Clark,
supra, 63 Cal.4th at pp. 618-622.) “‘“[N]o one of these
considerations is necessary, nor is any one of them necessarily
sufficient.”’” (Scoggins, at p. 677; accord, Banks, supra,
61 Cal.4th at p. 803.)
As the Scoggins Court explained, “Reckless indifference to
human life is ‘implicit in knowingly engaging in criminal
activities known to carry a grave risk of death.’” (Scoggins, supra,
9 Cal.5th at p. 676; accord, Banks, supra, 61 Cal.4th at p. 808
[“[a]wareness of no more than the foreseeable risk of death
inherent in any [violent felony] is insufficient”; reckless
indifference to human life requires “knowingly creating a ‘grave
risk of death’”].) “Reckless indifference ‘encompasses a
willingness to kill (or to assist another in killing) to achieve a
distinct aim, even if the defendant does not specifically desire that
death as the outcome of his actions.’” (Scoggins, at pp. 676- 677,
quoting Clark, supra, 63 Cal.4th at p. 617.)

10
 3. The Superior Court Erred in Denying DelCambre’s
Petition Without Issuing an Order To Show Cause
a. The jury’s pre-Banks/Clark felony-murder special-
circumstance finding does not preclude relief as a
matter of law
In People v. Harris (2021) 60 Cal.App.5th 939, 954-958,
review granted April 28, 2021, S267802, we disagreed with the
analysis and holding of People v. Galvan, supra, 52 Cal.App.5th
1134, review granted, that a jury’s pre-Banks/Clark felony-
murder special-circumstance finding precludes relief under
section 1170.95 absent a successful challenge to the evidentiary
support for the finding through a petition for writ of habeas
corpus. We also held in Harris, although a pre-Banks/Clark jury
would have been instructed it had to find the defendant was a
major participant in the underlying felony that led to the victim’s
death while acting with reckless indifference to human life to find
the felony-murder special-circumstance allegations true, the
elements now found in section 189, subdivision (e)(3), such a pre-
Banks/Clark finding, without more, does not preclude relief under
section 1170.95. (Harris, at p. 957; see Scoggins, supra, 9 Cal.5th
at pp. 673-674 [“[w]here a decision clarifies the kind of conduct
proscribed by a statute, a defendant whose conviction became
final before that decision ‘is entitled to post-conviction relief upon
a showing that his [or her] conduct was not prohibited by the
statute’ as construed in the decision”]; People v. Secrease (2021)
63 Cal.App.5th 231, 256, review granted June 30, 2021, S268862
[“[A] jury’s pre-Banks and Clark special circumstance
determination cannot, by itself, defeat the allegations of
Secrease’s petition as a matter of law. There must also be a
judicial determination of the sufficiency of the evidence to
support that determination, and Secrease is entitled to have it

11
made in a section 1170.95 proceeding—under current law”].)
The Attorney General contends the superior court properly
relied on Galvan to deny DelCambre’s petition and once again
argues that Harris was incorrectly decided, but he has presented
no persuasive reason for us to modify our view on this issue. 7
b. The record of conviction does not establish
DelCambre is ineligible for resentencing as a matter
of law
Although the jury’s pre-Banks/Clark felony-murder special-
circumstance finding, standing alone, does not preclude
resentencing under section 1170.95, the superior court was
authorized to review the record of conviction before it issued an
order to show cause to determine whether DelCambre was
ineligible for resentencing under section 1170.95 as a matter of
law. (See Lewis, supra, 11 Cal.5th at p. 971.) As a general
matter, however, determining whether an aider and abettor was
a major participant in the underlying felony who acted with a
reckless indifference to human life is a fact-intensive inquiry,
properly performed by the trier of fact following issuance of an
order to show cause and an evidentiary hearing. (Cf. Scoggins,
supra, 9 Cal.5th at p. 683 [determining whether a defendant was
a major participant in an underlying felony who acted with
reckless indifference to life within the meaning of the special-
circumstance statute “requires a fact-intensive, individualized

7 Whether a felony-murder special-circumstance finding
made before Banks, supra, 61 Cal.4th 788 and Clark, supra,
63 Cal.4th 522 precludes a defendant from making a prima facie
showing of eligibility for relief under section 1170.95 is pending
before the Supreme Court in People v. Strong, review granted
March 10, 2021, S266606.

12
inquiry”]; In re Parrish (2020) 58 Cal.App.5th 539, 542 [Supreme
Court has prescribed “a fact-intensive and individualized inquiry”
to determine whether the evidence demonstrates reckless
indifference and major participation].)
Here, contrary to the superior court’s finding and the
Attorney General’s argument on appeal, although there is
evidence DelCambre could still be convicted of murder under the
felony-murder rule, the record of conviction does not establish as
a matter of law—that is, without weighing the evidence and
engaging in factfinding—that he is ineligible for resentencing as
a major participant in the robbery of Hanmi Bank who acted with
reckless indifference to human life. (See Lewis, supra, 11 Cal.5th
at p. 974 [“at the prima facie stage, a petitioner’s allegations
should be accepted as true, and the court should not make
credibility determinations or engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion’”]; People v.
Duchine (2021) 60 Cal.App.5th 798, 815 [“the time for weighing
and balancing and making findings on the ultimate issues arises
at the evidentiary hearing stage rather than the prima facie
stage, at least where the record is not dispositive on the factual
issues”].)
To be sure, DelCambre’s role as a major participant in the
robbery can hardly be disputed. After all, it was he who
demanded and obtained money from the bank teller while his
associates were disarming the bank guard. But the evidence he
acted with reckless indifference to human life, although sufficient
to support a pre-Banks/Clark special-circumstance finding, was
not nearly so clear. In particular, although, as we held when
affirming DelCambre’s conviction, it may have been extremely
likely that death could result once one of the robbers was in

13
possession of the guard’s weapon under stressful circumstances,
there is little evidence that DelCambre’s own actions played any
particular role in the events leading to Sanchez’s death, let alone
demonstrated “‘a willingness to kill (or to assist another in killing)
to achieve a distinct aim.’” (See Scoggins, supra, 9 Cal.5th at
p. 677; Clark, supra, 63 Cal.4th at p. 617.) There is no indication
in the record DelCambre or either of his teenage confederates
was armed when they entered the bank. Although it is a
reasonable inference, as we also held, that the perpetrators’
intention from the outset was to disarm the guard, nothing
suggests shooting him was planned or, indeed, that it was not
completely accidental, in which case asking whether DelCambre
made any effort to minimize the violence is meaningless. In
addition, there is nothing in the record concerning DelCambre’s
prior relationship to the other two robbers, who were never
apprehended; and his awareness of their propensity for violence
or likelihood of using lethal force is entirely unknown. Other
evidence may support a finding of reckless indifference
(DelCambre fled immediately after obtaining the money from the
teller and made no attempt to aid the fallen guard), but
inferences from the evidence, even if reasonable, are not properly
made before issuance of an order to show cause and an
evidentiary hearing pursuant to section 1170.95, subdivision (d).

14
 DISPOSITION
The postjudgment order denying DelCambre’s
section 1170.95 petition is reversed. On remand the superior
court is to issue an order to show cause and to conduct further
proceedings in accordance with section 1170.95, subdivision (d).

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.

15