People v. Campos CA1/5

Filed 8/19/20 P. v. Campos CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, A159788 Plaintiff and Respondent, v. (Alameda County Super. Ct. No. 135839) RIGOBERTO Z. CAMPOS, Defendant and Appellant.

Rigoberto Z. Campos appeals from the trial court’s summary denial of his Penal Code section 1170.95 petition.1 We affirm. FACTUAL AND PROCEDURAL BACKGROUND In 2000, a jury convicted Campos of first degree murder (§ 187) and found true an allegation he personally used a firearm in the commission of the offense (§ 12022.5). The court sentenced Campos to state prison. Campos appealed the conviction. This court affirmed. (People v. Campos (Aug. 7, 2002, A093213) [nonpub. opn.].) Our opinion, which we incorporate by reference here, described the circumstances of the crime. It noted Campos’s wife was having an affair with the victim; Campos spotted the victim, approached him, and

1 Undesignated statutory references are to the Penal Code. 1

“shot” him. Campos discarded his bloody shirt and a gun, then fled to Chicago. In a recorded police interview, Campos admitted shooting the victim during a physical altercation but claimed he acted in self-defense. At trial, Campos testified the gun discharged accidentally. In 2019, Campos petitioned for resentencing pursuant to section 1170.95. He alleged he was convicted of felony murder and that he “could not now be convicted [of murder] because of changes to . . . section 189.” In a supporting declaration, Campos averred “new or additional evidence” demonstrated he was not the “actual killer” and did not act with the intent to kill. Campos explained the circumstances surrounding the crime and—as he did at trial—averred the gun went off accidentally during a struggle with the victim. The declaration attached evidence purportedly showing Campos acted in self-defense and/or that the shooting was accidental. The court summarily denied the petition, concluding Campos failed to make a threshold showing of entitlement to relief. After considering the court file—including the jury instructions and our opinion in the prior appeal—the court determined section 1170.95 relief was unavailable because Campos “was not convicted of murder under a felony-murder or natural and probable consequences aider and abettor theory.” It explained that even if Campos had been convicted under such a theory, “relief . . . would still be unavailable” because Campos “was the actual killer.”