P. v. Camacho

Filed 1/10/20 P. .v. Camacho CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
JUAN CARLOS CAMACHO
et al.,
Defendants and Appellants.
B292093
(Los Angeles County
Super. Ct. No. TA144840)
APPEAL from judgments of the Superior Court of Los
Angeles County, Julian C. Recana, Judge. Affirmed in part,
reversed in part, and remanded for further proceedings.
Ava R. Stralla, under appointment by the Court of Appeal,
for Defendant and Appellant Juan Carlos Camacho.
Law Offices of Austin R. Dove, Austin R. Dove, for
Defendant and Appellant Adan Muniz.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant

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Attorney General, Scott A. Taryle and David E. Madeo, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
I. INTRODUCTION
A jury convicted defendants and appellants Juan Carlos
Camacho and Adan Muniz of assault with a deadly weapon (Pen.
Code, § 245, subd. (a)(1)1) and willful, deliberate, and
premeditated attempted murder (§§ 664/187, subd. (a)). The jury
found true the allegation that the offenses were committed for
the benefit of, at the direction of, and in association with a
criminal street gang with the specific intent to promote, further,
and assist in criminal conduct by gang members. (§ 186.22, subd.
(b)(1)(C).) It further found true the allegation that in the
commission of each offense Muniz personally inflicted great
bodily injury on the victim. (§ 12022.7, subd. (a).) The trial court
found true the allegations at to both offenses that Camacho had
two prior serious and/or violent felony convictions (§§ 667, subds.
(a)(1) & (b)-(j); 1170.12, subd. (b)) and served two prior prison
terms (§ 667.5, subd. (b)) and Muniz served one prior prison term
(§ 667.5, subd. (b)). The trial court sentenced Camacho to 45
years to life in state prison and Muniz to 13 years to life in state
prison.
On appeal, Camacho contends insufficient evidence
supported the gang enhancement findings; the trial court erred in
allowing the prosecution to use one of his bifurcated prior
convictions as a predicate offense to prove the gang enhancement
1 All further statutory references are to the Penal Code
unless otherwise noted.

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allegations; we must reverse his conviction for premeditated
attempted murder in light of Senate Bill No. 1437 which
abrogated the natural and probable consequences doctrine; if we
reject his Senate Bill No. 1437 contention, then the trial court
erred in failing to instruct the jury that he had to act with
premeditation in committing the willful, deliberate, and
premeditated attempted murder; we should remand the matter to
allow the trial court to exercise its discretion whether to strike
his section 667, subdivision (a) sentence enhancements as
provided by Senate Bill No. 1393; the trial court erred in
imposing a consecutive 10-year gang sentence enhancement; and
we should strike his section 667.5, subdivision (b) prior prison
term sentence enhancements as provided by Senate Bill No. 136.
Muniz contends the trial court erred in denying his motion
to disclose the identity of a confidential informant; the court
erred in failing to bifurcate trial on the gang enhancement
allegations; insufficient evidence supported the assault with a
deadly weapon and willful, deliberate, and premediated
attempted murder offenses; and insufficient evidence supported
the gang enhancements.
We reverse Camacho’s and Muniz’s section 667.5,
subdivision (b) prior prison term sentence enhancements and
remand the matter for the trial court to exercise its discretion
whether to strike Camacho’s section 667, subdivision (a) sentence
enhancements and for the court to strike Camacho’s and Muniz’s
section 186.22, subdivision (b)(1)(C) 10-year terms and impose
15-year minimum parole eligibility terms under section 186.22,
subdivision (b)(5). We otherwise affirm.

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II. BACKGROUND
On May 20, 2017, Camacho and his girlfriend, Maribel
Sanchez, lived in a house on West Reeve Street in Los Angeles.
Maribel’s sister, Elizabeth Sanchez, also lived in the house.
Maribel and Elizabeth’s sister, Mariana Sanchez, and her fiancé,
Jose Duran, lived in a building or back room on the property.
Duran, known as “Wolf,” Mariana, known as “Crazy,” and
Elizabeth had been members of the Compton Vato 70 (CV70)
gang. On May 20, 2017, they were no longer active in the gang.
Camacho, known as “Stomper,” and Maribel were members of the
Compton Vato Tres (CV3) gang. According to Duran, CV70 and
CV3 were rival gangs.
In the early morning of May 20, 2017, Elizabeth went to
the back room and asked Mariana to come to the house to speak
to her about something. When Mariana entered the house,
Elizabeth was in the hallway and Camacho and Maribel were in
a bedroom. Elizabeth was upset that someone had used her cell
phone to remove money from her boyfriend’s tax account. When
Mariana said that she had been in the back room, Elizabeth
turned to Maribel.
Duran entered the house. He knew “they” were on drugs
and told Mariana, “[T]hey are tweakers. Leave them alone.”
Camacho was offended at being called a “tweaker.” Duran said,
“If you associate with one, you will be considered one.” Camacho
punched Duran in the mouth. Duran told Camacho to fight him
outside.
Duran and Camacho fought and fell to the ground. Duran
believed he won the fight. Although Camacho hit him in the face,

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he was not injured. Duran “busted” Camacho’s lip. A neighbor
told them to stop fighting, and they complied.
After the fight, Duran threw his bike over the fence—the
gate was locked and he did not have a key—and jumped over. He
went across the street to speak with and get help from his friend
Luis, a CV70 gang member. Luis was not home. At the same
time, Camacho and Maribel talked on the porch.
Mariana went inside the house and confronted Elizabeth
about the problem she had caused. Camacho joined the
argument, also confronting Elizabeth. Maribel was speaking on
the phone two to three feet from Mariana. Mariana could hear
her conversation. Maribel said, “‘Some shit is going down.’” She
also said, “‘Well, Stomper got down with Wolf from 70s, and
because Jose had run across the street.’” She said, “[H]e is from
70s, and because Stomper [is] from CV3, it is a hood matter
now.”2
At some point during Mariana’s argument with Elizabeth,
Maribel asked Elizabeth for the front gate key. Elizabeth handed
Maribel the key and Maribel walked out the front door.
Unable to speak with Luis, Duran returned home.
Believing Camacho had treated him disrespectfully, Duran
confronted Camacho, saying, “Round 2.” At first, Camacho did
not want to fight, but ultimately agreed. As Duran and Camacho
fought, Camacho pinned Duran’s back against a van. According
to Duran, Camacho “switched [him] over” so he was facing the
2 A Los Angeles County Sheriff’s Department detective
testified that Mariana told him Maribel said, “‘Hey, there is shit
going down with the 70. You need to come through. This is CV3
all the way.’” That statement does not appear in the apparent
recorded transcript of the interview played for the jury.

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van. Duran and Camacho were “locked”—Duran did not know
why Camacho held him for so long. Then, Duran “was seeing
stars and [his] lights went out.”
Mariana remained inside talking with Elizabeth. Mariana
heard Duran and Camacho fighting. After a couple of minutes,
she heard Duran make a “weird like gag noise.” Mariana looked
out the window and saw a hand and a hammer.
Mariana ran outside. Maribel stood holding the gate key.
The gate was open. Duran was on the ground on one knee, trying
to keep himself upright by holding onto the van. He then
dropped down on all fours. Camacho stood in front of Duran and
Muniz stood behind Duran. Muniz was swinging a hammer
downward on top of Duran’s head. Muniz struck Duran’s head
two to three times causing blood to splatter from Duran’s head.
As Muniz struck Duran with the hammer, Camacho punched
Duran in the face two or three times. Duran was not armed with
a weapon during the fight and, as far as Duran knew, Camacho
was not armed.
Trying to shield Duran, Mariana ran between him and
Camacho and Muniz. Camacho backed away. As she hugged
Duran, Muniz struck her on the neck with the hammer four
times. Mariana grabbed the hammer and Muniz yelled at her to
let go of it. They struggled over the hammer. Elizabeth came
outside and yelled, “‘That is my sister.’” Elizabeth grabbed the
hammer and Muniz and Mariana both let it go.
Duran was unconscious. Mariana called out to him, but
there was no response. She pulled on him and he “kind of woke
up.” Mariana guided Duran back to their room. Duran had two
deep holes on the top of his head and was bleeding.

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Muniz yelled for Mariana to bring out Duran. Mariana
stood outside in front of her and Duran’s room to prevent Muniz
from entering. Muniz reached for a gun in his pants. Mariana
refused to bring out Duran.
After Mariana refused to bring out Duran, she and Muniz
calmed down and had a conversation. Muniz said “[h]e received a
call saying because Jose was from 70s and he was from, I guess, a
different gang, Mr. Camacho, that is why he was there.” Mariana
told Muniz that it was a family matter. Muniz responded, “‘Well,
this is my brother-in-law. I am here to back him up.’” Mariana
insisted it was a family matter and she “started explaining to him
how the issue happened.”
Muniz grinned and said to Mariana, “[Y]ou should be on a
reality show for families.” Muniz and Mariana shook hands, and
Muniz said, “‘My bad for hitting you with the hammer.’” He said
he did not know that she was “‘the sister.’” Muniz and Camacho
left the property.
Mariana called 911. In the call, she described Duran’s
attackers as “just Mexican, bald headed and that’s it.” Later in
the call she said, “One was wearing some blue shorts and a black
shirt and the other was wearing a sweater.” At first, Mariana
said the assailants “ran” and that she did not know where they
went, then she said she was unsure if they left on foot or in a car,
and finally she said that she was pretty sure they left in a car.
When Sheriff’s Department deputies arrived, Mariana described
the assailant with the hammer as “30 to 35 years old, 5’ 11’’, with
a dark complexion, thin build, and bald head.
On December 7, 2017, Mariana identified Muniz from a
group of six photographs (photo array) as the man who struck
Duran with hammer. Mariana was sure of her identification. At

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trial, Muniz’s counsel asked Mariana, “Would it change your
mind if you knew Mr. Muniz was 24 years old on that day?”
Mariana responded, “He don’t look that age to me. He looks
older.” Muniz’s counsel represented that he was 5’ 7” and had
Muniz stand next to him. He then asked Mariana if there was
any chance Muniz was 5’ 11”. Mariana said, “No.” Muniz’s
counsel then asked, “It couldn’t possibly have been Mr. Muniz?”
Mariana responded that Muniz was the assailant with the
hammer and she was “not good with heights.”
Mariana admitted that she had given several different
versions of what happened on May 20, 2017, and added some
significant details. She explained that she did not tell the full
story “at the beginning.” She stated, “[I] was lying about it,
especially when they went to pick up [Duran], the paramedics. I
did lie about it. I didn’t want to get involved with the court and
none of that, but at the end of the day, my husband is going
through a long recovery. It’s not fair for him for me to just keep
my mouth shut and let the people who did it walk away. It is not
fair.”
Los Angeles Sheriff’s Department Detective Eric Gomez
testified as the prosecution’s gang expert. According to Detective
Gomez, members of the same gang typically help one another
commit crimes. A gang member is required to help if a fellow
gang member asks for help. The failure to provide help could
result in negative consequences including beatings or expulsion
from the gang.
Detective Gomez was familiar with the CV3 gang. He
knew Camacho and Muniz to be CV3 gang members. Camacho
had the moniker “Stomper.” Detective Gomez had not had
contact with Camacho for over five years. He last had contact

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with Muniz in 2013. Detective Gomez did not know CV70 and
CV3 normally to be rival gangs.
The prosecutor gave Detective Gomez the following
hypothetical fact pattern and asked whether the “crime could be
committed for the benefit of, at the direction of, or in association
with a criminal street gang, with a specific intent to promote or
further or assist in criminal conduct by members of that gang”:
“[A]ssume gang member A is a member of the Blue gang,
and gang member A gets in a fight with a member of a Yellow
gang. That fight ends. Gang member A then has a conversation
with his girlfriend, who also happens to be a member of Blue
gang. The girlfriend—this is happening at a home. The
girlfriend goes inside of the home, makes a phone call. As the
girlfriend is making this phone call, a witness present at this
home walks inside and overhears this conversation and hears the
girlfriend tell the person on the phone that some shit is going on
with the Yellow gang, this is the Blue gang, and this is some hood
shit.
“Following this phone call, minutes later, gang member A
and the member of the Yellow gang starts to fight again. As they
are fighting, another individual, gang member B, is also a
member of the Blue gang, shows up with a hammer, striking the
member of the Yellow gang three times in the head, while gang
member A is also punching this person all over his body. The
witness tries to intervene, and gang member B reaching towards
his waistband towards a gun and wants to continue fighting.
Gang member B then tells the witness that he was told that
something was happening and that this was a hood thing.”
Based on the hypothetical fact pattern, Detective Gomez
opined that the second fight was for the benefit of the Blue gang.

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He testified, “I think the fact that the gang member A from the
Blue gang and the other individual from Yellow gang, their fight
is one thing, but as soon as the phone call is made and
statements are made regarding this is against the Yellow gang
and that this is a hood thing, then it does become a gang incident.
“I believe the other Blue gang member that shows up with
a hammer and starts attacking the Yellow gang member is also
in support of the gang incident.
“I think with all of that, yes, it is in the benefit of the gang,
because—at the beginning it is just a fight between Yellow and
Blue. But once the other Blue shows up and they jump in and he
starts attacking him with the hammer, it becomes pretty much a
beat down, and I think that that is—he is helping out his fellow
gang member. I believe it instills fear in the Yellow gang,
showing that individual from the Yellow gang and whoever sees
him in the hospital that this is what happens when you mess
with the Blue gang.
“I think anybody—any witnesses that are neighbors that
happen to be walking down the street or looking out a window or
looking out a car and sees this happening, I believe that also
instills fear in them, showing that this is what could possibly
happen to you if you go against anything or if you attack or get
into a fight with someone from the Blue gang. So it benefits the
Blue gang by bolstering their street credit or intimidation among
people, neighbors, people on the street, which in turn would allow
them to continue with any type of criminal enterprise, such as
dealing drugs or committing street robberies for fear that if they
go against this Blue gang, this could possibly be what happens to
you if you go against Blue.”

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Detective Gomez added that the third Blue gang member
would have been working in association with the first Blue gang
member. There would have been consequences for the third Blue
gang member had he not shown up and backed up the Blue gang
after receiving a call that there was an issue between the Blue
and Yellow gangs.
According to Detective Gomez, people get in fights, even if
they are gang members, because they are mad at each other.
Sometimes, people get in fights because their girlfriends are mad
at each other.
III. DISCUSSION
A. Nondisclosure of Confidential Witness
During the preliminary hearing, Detective Jose Arias
testified that after receiving information from a confidential
informant, he included Muniz’s photograph as part of a photo
array that he showed to Mariana. Mariana chose the photograph
of Muniz as being the person who had struck Duran with a
hammer. On April 4, 2018, Camacho filed a motion to disclose
the identity of the confidential informant. Muniz joined in the
motion. On April 30, 2018, the trial court conducted an in
camera hearing and denied the motion, concluding that the
informant was not a material witness.
Muniz contends that the trial court erred and requests that
we review the sealed reporter’s transcript for April 30, 2018, to
determine whether there was any such error.
The prosecution must disclose the name of an informant
who is a material witness in a criminal case or suffer dismissal of

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the charges against the defendant. (Eleazer v. Superior Court
(1970) 1 Cal.3d 847, 851.) An informant is a material witness if
there appears, from the evidence presented, a reasonable
possibility that he or she could give evidence on the issue of guilt
that might exonerate the defendant. (People v. Borunda (1974)
11 Cal.3d 523, 527.) “However, an informant is not a material
witness when “‘he simply points the finger of suspicion toward a
person who has violated the law . . . .”’ [Citation.]” (People v.
Wilks (1978) 21 Cal.3d 460, 469.) We review the trial court’s
ruling concerning the disclosure of a confidential informant under
the abuse of discretion standard. (People v. Hobbs (1994) 7
Cal.4th 948, 976.) Here, based on our review of the sealed
transcript, we hold that the trial court did not err in denying
disclosure of the in camera hearing and in sealing the transcript.
B. Bifurcation of Gang Allegation
Muniz contends the trial court erred in failing to bifurcate
the trial on the gang allegations. The Attorney General argues
Muniz forfeited this issue by failing to move for bifurcation in the
trial court. We agree with the Attorney General. (People v.
Hinton (2006) 37 Cal.4th 839, 894 [the failure to object to the
admission of evidence forfeits the issue on appeal]; People v.
Pinholster (1992) 1 Cal.4th 865, 935 [questions relating to the
admissibility of evidence are forfeited in the absence of an
objection in the trial court].)

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C. Sufficiency of the Evidence
Muniz contends that insufficient evidence supported his
assault with a deadly weapon and willful, deliberate, and
premeditated attempted murder convictions. Muniz and
Camacho argue that insufficient evidence supported the gang
enhancement findings. Sufficient evidence supported the
convictions and gang enhancement findings.
1. Standard of Review
“‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citation.] We determine ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’ [Citation.] In so doing, a
reviewing court ‘presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.’” (People v. Edwards (2013) 57 Cal.4th 658, 715.) “A
reversal for insufficient evidence ‘is unwarranted unless it
appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support”’ the jury’s verdict.” (People v.
Zamudio (2008) 43 Cal.4th 327, 357.) The same standard applies
to a claim that insufficient evidence supported a jury’s gang

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enhancement finding. (People v. Villalobos (2006) 145
Cal.App.4th 310, 321–322.)
2. Substantive Offenses
Muniz argues insufficient evidence supports his assault
with a deadly weapon and attempted murder convictions because
Mariana’s identification of him as the assailant with the hammer
was unreliable and inconsistent. We disagree.
Muniz argues that “three substantial inconsistencies” in
Mariana’s testimony “prohibit[ed]” a rational trier of fact from
finding her credible. First, Mariana offered different accounts of
whether the assailants left together or separately and whether
they left in a car or on foot. Second, she offered different
accounts of which assailant was armed with a gun. Third, she
admitted lying about the incident and adding significant details.
Mariana’s identification3 of Muniz as the assailant with the
hammer also is not credible, Muniz argues, because he did not
match the physical description Mariana gave of the assailant.
“In deciding the sufficiency of the evidence, a reviewing
court resolves neither credibility issues nor evidentiary conflicts.
[Citation.] Resolution of conflicts and inconsistencies in the
testimony is the exclusive province of the trier of fact. [Citation.]
Moreover, unless the testimony is physically impossible or
3 Muniz notes that his counsel, in closing argument, pointed
out “problems” with the photo array—Muniz was the only one
wearing a red shirt, his photo was first in the array, and he was
the baldest man in the array. Muniz does not argue that the
photo array was unduly suggestive rendering Mariana’s
identification a due process violation. (See People v. Avila (2009)
46 Cal.4th 680, 698.)

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inherently improbable, testimony of a single witness is sufficient
to support a conviction. [Citation.]” (People v. Young (2005) 34
Cal.4th 1149, 1181.)
Mariana identified Muniz from a photo array pretrial as
the assailant who struck Duran with the hammer and was sure
of her identification. She again identified defendant at trial as
the assailant with the hammer. It was the jury’s role to resolve
any issues with Mariana’s credibility. (People v. Young, supra, 34
Cal.4th at p. 1181.) Mariana’s identification of Muniz was
neither physically impossible nor inherently improbable.
Accordingly, it was sufficient to support Muniz’s conviction.
(Ibid.)
3. Gang Enhancements
Camacho and Muniz argue that insufficient evidence
supports the gang enhancement findings because the evidence
shows that the assault and attempted murder were committed
for personal and not gang reasons. We disagree.
Camacho argues, “The incident itself began as a family
matter. That Mariana heard Maribel on the phone talking to
someone and referring to CV3 and a ‘hood matter,’ did not
necessarily make the resulting assault with a hammer on Duran
a gang case.” Principally, Camacho and Muniz rely on Mariana’s
statement to Muniz after Muniz struck Duran with the hammer
that the fight between Camacho and Duran was a family matter,
and Muniz’s response that he was there to back up his brother-in-
law.
Viewing the evidence in the light most favorable to the
prosecution, substantial evidence supports the jury’s gang

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enhancement findings. The evidence demonstrates that the
dispute between Camacho and Duran began as, and the first
fight concerned, a family matter. Prior to the second fight,
however, that dispute turned into a gang matter.
After the first fight, Duran, an inactive CV70 gang
member, jumped over the fence and attempted to contact his
friend Luis, a CV70 gang member. Camacho, a CV3 gang
member, spoke with Maribel, also a CV3 gang member. After
that conversation, Maribel went inside the house and made a
phone call during which she said, “Well, Stomper got down with
Wolf from 70s, and because Jose had run across the street.” She
said, “[H]e is from 70s, and because Stomper from CV3, it is a
hood matter now.” She further said, “Hey, there is shit going
down with the 70. You need to come through. This is CV3 all the
way.” Maribel then obtained the key and opened the property’s
gate, allowing CV3 gang member Muniz to enter the property.
During the second fight, Camacho “locked” up Duran and turned
him around so his fellow gang member Muniz could strike him
with a hammer. When Duran fell to the ground, Camacho
punched him in the face while Muniz struck him with the
hammer.
In addition, Muniz admitted the attack was gang-
motivated. After Mariana refused Muniz’s demand to bring out
Duran from her and Duran’s room after the second fight, she and
Muniz calmed down and had a conversation. Apart from
claiming he was there to back up his brother-in-law, Muniz said
“[h]e received a call saying because Jose was from 70s and he was
from, I guess, a different gang, Mr. Camacho, that is why he was
there.”

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Given a set of hypothetical facts based on this case,
Detective Gomez, the prosecution’s gang expert, testified that the
offenses were committed for the benefit of a gang. Once the
girlfriend in the hypothetical made the phone call in which she
referred to a rival gang and said, “[T]his is a hood thing,” the
dispute became a gang incident. The third Blue gang member
was working in association with the first Blue gang member.
D. The Prosecution’s Use of Camacho’s Bifurcated Prior
Conviction to Prove the Gang Allegations
Camacho contends the trial court abused its discretion
under Evidence Code section 352 when it permitted the
prosecution to use one of his bifurcated prior convictions as a
predicate offense in proving the gang allegation. The trial court
did not err.
1. Background
The amended information alleged that Camacho suffered
two prior serious and/or violent felonies (§§ 667, subds. (a)(1),
(b)-(j) & 1170.12, subd. (b)) for which he served two prior prison
terms (§ 667.5, subd. (b)) in case number TA103141, assault with
a firearm (§ 245, subd. (a)(2)), conviction date October 15, 2008,
and case number TA117551, assault with a deadly weapon other
than a firearm (§ 245, subd. (a)(1)), conviction date July 14, 2011.
The trial court granted Camacho’s motion to bifurcate the trial on
the prior conviction and prison term allegations.
Prior to Detective Gomez’s testimony, Camacho’s counsel
requested a sidebar conference at which he objected under

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Evidence Code section 352 to the prosecution’s use of Camacho’s
prior conviction in case number TA103141 as a predicate offense
in proving the gang allegation. Counsel argued that because the
conviction was nearly 10 years old and the record of conviction
did not include a gang allegation, the prejudice from using that
conviction substantially outweighed its relevance. If, however,
the trial court permitted the prosecution to use that prior
conviction, then Camacho’s counsel asked the trial court to give
the jury a limiting instruction.
The prosecutor argued that any prejudice from the prior
conviction was lessened because there was no gang allegation in
that case. Also, the assault charge in this case did not allege
Camacho used a firearm. The prosecutor agreed that the trial
court should give the jury a limiting instruction.
The trial court permitted the prosecution to use Camacho’s
prior conviction as a predicate offense for proving the gang
allegations. It reasoned that the conviction’s prejudicial impact
was lessened because the conviction was nine years prior to the
incident in this case and thus “it could be argued it [was] remote
. . . .” The court stated it would give the jury a limiting
instruction telling the jury it could use Camacho’s prior
conviction only for the gang allegations and not for any other
purpose.4
4 The trial court instructed the jury with CALJIC No. 17.24.3
as follows:
“Evidence has been introduced for the purpose of showing
criminal street gang activities, and of criminal acts by gang
members, other than the crimes for which defendants are on
trial.
“This evidence, if believed, may not be considered by you to
prove that defendant is a person of bad character or that he has a

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During Detective Gomez’s testimony, the prosecution
introduced evidence about two crimes committed by CV3 gang
members: (1) Steve Granada’s conviction “in case [number]
TA104737 for the crime of [] section 12021 subsection (a)
subsection (1), committed on or about January 20, 2009,” and (2)
Camacho’s conviction in case number TA103141 for the “crime of
[] section 245[, subdivision ](a)(2), commonly known as assault
with a [semiautomatic] on or about October 11th, 2008.”
2. Analysis
Evidence Code section 352 provides: “The court in its
discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” A determination of inadmissibility of
evidence under Evidence Code section 352 requires the balancing
of the probative value of the evidence against its potential
prejudicial effect. (People v. Ewoldt (1994) 7 Cal.4th 380, 404–
disposition to commit crimes. It may be considered by you only
for the limited purpose of determining if it tends to show that the
crime or crimes charged were committed for the benefit of, at the
direction of, or in association with a criminal street gang, with
the specific intent to promote, further, or assist in any criminal
conduct by gang members.
“For the limited purpose for which you may consider this
evidence, you must weigh it in the same manner as you do all
other evidence in the case.
“You are not permitted to consider such evidence for any
other purpose.”

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405.) We review a trial court’s ruling under Evidence Code
section 352 for an abuse of discretion. (People v. Lewis (2001) 25
Cal.4th 610, 637.) “A trial court abuses its discretion when its
ruling ‘fall[s] “outside the bounds of reason.”’ [Citations.]”
(People v. Waidla (2000) 22 Cal.4th 690, 714.)
In proving the gang allegations, the prosecution was
required to prove that CV3 was a criminal street gang. To prove
CV3 was a criminal street gang, the prosecution was required to
show, among other things, that CV3’s “members individually or
collectively engage in, or have engaged in, a pattern of criminal
gang activity.” (§ 186.22, subd. (f).) “Pattern of criminal gang
activity” under the gang statute is defined, as relevant here, as
the “commission of . . . or conviction of two or more of the
following offenses . . . : [¶] (1) Assault with a deadly weapon . . .
as defined in [s]ection 245.” (§ 186.22, subd. (e).)
Subject to Evidence Code section 352, the prosecution may
use proof of an offense a defendant committed on a separate
occasion to establish a predicate offense for a gang allegation.
(People v. Tran (2011) 51 Cal.4th 1040, 1046–1047.) Camacho
challenges the prosecution’s use of his prior conviction “when,
most assuredly, there were offenses from other gang members
from which to choose.” As Camacho concedes, however, we are
bound to follow the Supreme Court’s holding in People v. Tran,
supra, 51 Cal.4th at page 1049, which permits the prosecution to
use a charged defendant’s prior offense even if it could prove the
predicate offense through evidence of an offense committed by
another gang member on a separate occasion. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Here, the prosecution used Camacho’s section 245 assault
with a firearm conviction in case number TA103141 to prove one

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of the required predicate offenses for the gang allegations. That
conviction was relevant,5 highly probative to the prosecution’s
gang allegation case, and not substantially outweighed by any
prejudice to Camacho. The prior offense was nearly 10 years old,
there was no gang allegation in that case, and the assault
charged in Camacho’s current case did not involve a firearm.
Accordingly, the trial court’s ruling permitting the prosecution to
use defendant’s prior conviction to establish a predicate offense
for the gang allegations was not outside the bounds of reason and
not an abuse of discretion. (People v. Waidla, supra, 22 Cal.4th
at p. 714.)
E. Senate Bill No. 1437
Camacho contends we must vacate his willful, deliberate,
and premeditated attempted murder conviction, which rested on
a natural and probable consequences theory of aiding and
abetting, in light of Senate Bill No. 1437. We adhere to our
holding in People v. Martinez (2019) 31 Cal.App.5th 719, 729,
that Senate Bill No. 1437’s enactment of the petitioning
procedure in section 1170.95 dictates that the changes worked by
the legislation do not apply retroactively on direct appeal.
Camacho is entitled to pursue the procedure set forth in section
1170.95, but he is not entitled to Senate Bill No. 1437 relief
without doing so. If Camacho chooses to pursue such relief, the
5 Evidence is relevant when it has “any tendency in reason to
prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, § 210.)

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trial court may decide whether Senate Bill No. 1437 applies to
attempted murder convictions.6
F. The Trial Court’s Failure to Instruct on Premeditation
Camacho contends we must reverse his conviction for
willful, deliberate, and premeditated attempted murder because
the trial court erred in failing to instruct the jury that
premeditation is an element of attempted murder. We reject
Camacho’s argument as we are bound by existing California
Supreme Court authority to the contrary.
1. Background
The trial court instructed the jury that it could convict
Camacho of attempted murder as a direct perpetrator, a direct
aider and abettor, or an aider and abettor under the natural and
probable consequences doctrine. (CALJIC Nos. 3.00 [Principals—
Defined]; 3.01 [Aiding and Abetting—Defined]; 3.02 [Principals—
Liability for Natural and Probable Consequences].7)
6 This issue is currently pending before the California
Supreme Court. (People v. Lopez (Aug. 21, 2019, B271516, review
granted Nov. 13, 2019, S258175) [rehearing petition granted on
two questions, including: “Does Senate Bill No. 1437 (Stats.
2018, ch. 1015) apply to attempted murder liability under the
natural and probable consequences doctrine?”].)
7 Specifically, the trial court instructed the jury on the
natural and probable consequences theory as follows: “One who
aids and abets another in the commission of a crime is not only
guilty of that crime but is also guilty of any other crime

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The trial court also instructed the jury that if it found
defendant guilty of attempted murder, it must next determine
whether the attempted murder was willful, deliberate, and
premeditated. (CALJIC Nos. 8.66 [Attempted Murder] and 8.67
[Attempted Murder—Willful, Deliberate, and Premeditated].)
The court did not instruct the jury that it was required to find
that Camacho personally acted willfully, deliberately, or with
premeditation.
During closing argument, the prosecutor argued that the
jury could convict Camacho of attempted premeditated murder
committed by a principal which is a natural and probable
consequences of the crime original aided and abetted.
“In order to find the defendant guilty of the crime of
attempted murder, as charged in count 3, you must be satisfied
beyond a reasonable doubt that:
“1. The crime of assault with a deadly weapon was
committed.
“2. That the defendant aided and abetted that crime.
“3. That a co-principal in that crime committed the crime
of attempted murder; and
“4. The crime of attempted murder was a natural and
probable consequence of the commission of the crime of assault
with a deadly weapon.
“In determining whether a consequence is natural and
probable, you must apply an objective test, based not on what the
defendant actually intended, but on what a person of reasonable
and ordinary prudence would have expected likely to occur. The
issue is to be decided in light of all of the circumstances
surrounding the incident.
“A natural consequence is one which is within the normal
range of outcome that may . . . reasonably be expected to occur if
nothing unusual has intervened.
“Probable means likely to happen.”

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under a natural and probable consequences theory: “Mr.
Camacho thought all along, all that is going to take place is an
assault, that they were just going to beat up on Mr. Duran. If
Mr. Muniz had any other intention, regardless of whether Mr.
Camacho knows what he is going to do, Mr. Camacho is on the
hook for that. So again, it’s a natural and probable—does a
reasonable person, what they think, if someone is going to beat
up a human being with a dangerous or deadly weapon, could they
possibly kill them? Of course, depending on where they hit them,
depending on how many times they hit them. So in this case, I
don’t need to show to you that Mr. Camacho had the personal
intent that he personally wanted to kill Jose Duran or even that
he knew that Mr. Muniz came over there and was going to kill
him. That is not what the law requires, because as soon as they
enter into the agreement to attack [Duran] and to assault him,
anything that happens that is reasonable, anything that is a
natural and probable consequence of that, he is on the hook for.
That’s why this rule applies, even if the act was not [a part] of the
original plan. [¶] Again, members of the jury, that is exactly
why Mr. Camacho is also, and he is guilty of the attempted
murder, and that is premeditated, deliberate, and willful. They
worked and acted as a team in this case.”
2. Standard of Review
Camacho contends that the trial court erred in instructing
the jury that it could convict him of aiding and abetting
attempted premeditated murder under a natural and probable
consequences theory, without finding that he acted willfully,
deliberately, or with premeditation. We apply the de novo

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standard of review when assessing whether jury instructions
correctly state the law. (People v. Posey (2004) 32 Cal.4th 193,
218.)
3. Analysis
In support of his argument, defendant cites People v. Chiu
(2014) 59 Cal.4th 155, 167 (Chiu), in which the California
Supreme Court concluded that a first degree, premeditated and
deliberate murder conviction for an aider and abettor cannot be
based on the natural and probable consequences doctrine as a
matter of law. Defendant concedes that Chiu did not extend its
holding to attempted murder convictions and also concedes that
his argument is contrary to the California Supreme Court’s
opinions in People v. Favor (2012) 54 Cal.4th 868, 880 [“Under
the natural and probable consequences doctrine, there is no
requirement that an aider and abettor reasonably foresee an
attempted premeditated murder as the natural and probable
consequences of the target offense. It is sufficient that attempted
murder is a reasonably foreseeable consequence of the crime
aided and abetted, and the attempted murder itself was
committed willfully, deliberately and with premeditation”]
(Favor) and People v. Lee (2003) 31 Cal.4th 613, 629 [“section
664[, subdivision ](a) requires only that the murder attempted
was willful, deliberate, and premeditated, but not that an
attempted murderer personally have acted with willfulness,
deliberation, and premeditation even if he or she is guilty as an
aider and abettor”]) (Lee), both of which were cited but not
overruled by Chiu.

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There is a split of authority as to whether Chiu’s holding
applies to premeditated attempted murder convictions.
(Compare People v. Mejia (2019) 40 Cal.App.5th 42, 43
[concluding that the trial court “improperly instructed the jury on
premeditated attempted murder under the natural and probable
consequences doctrine”] with People v. Gallardo (2017) 18
Cal.App.5th 51, 85 [“[s]imply put, there is no language in Chiu
that overrules or otherwise questions the continuing validity of
Lee or Favor”].) This issue is currently pending before the
California Supreme Court. (People v. Lopez (Aug. 21, 2019,
B271516, review granted Nov. 13, 2019, S258175) [rehearing
petition granted on two questions, including: “In order to convict
an aider and abettor of attempted willful, deliberate and
premeditated murder under the natural and probable
consequences doctrine, must a premeditated attempt to murder
have been a natural and probable consequence of the target
offense? In other words, should [Favor, supra,] 54 Cal.4th 868
. . . be reconsidered in light of Alleyne v. United States (2013) 570
U.S. 99 . . . [(Alleyne)] and [Chiu, supra,] 59 Cal.4th 155 . . . ?”].)
The Attorney General counters that we are bound by stare
decisis to follow Favor and Lee, and affirm the conviction for
attempted premeditated murder. (People v. Johnson (2012) 53
Cal.4th 519, 528; Auto Equity Sales, Inc. v. Superior Court,
supra, 57 Cal.2d at p. 455.) We are persuaded by the Attorney
General’s argument that we are bound by Favor and Lee. (Auto
Equity Sales, Inc., supra, 57 Cal.2d at p. 455.)
Defendant also argues that the United States Supreme
Court’s holding in Alleyne, supra, 58 U.S. at page 33, undermines
Favor and Lee. Again, we are bound to follow Favor and Lee. As
we note, the continuing viability of Favor and Lee is a matter that

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is currently pending before the California Supreme Court.
(People v. Lopez (Aug. 21, 2019, B271516, review granted
Nov. 13, 2019, S258175.)
G. Senate Bill No. 1393
Camacho’s counsel asked the trial court to strike the
section 667, subdivision (a) five-year sentence enhancement on
both of Camacho’s convictions. At the time, imposition of those
enhancements was mandatory, and the trial court declined
defense counsel’s request. Senate Bill No. 1393, which became
effective on January 1, 2019, amended sections 667 and 1385 to
give the trial court discretion to strike five-year sentence
enhancements under section 667, subdivision (a) in furtherance
of justice. Camacho contends that in light of Senate Bill No.
1393, we should remand this matter to the trial court to allow it
to decide whether to strike his section 667, subdivision (a)
sentence enhancements. The Attorney General agrees as do we.
H. Imposition of 10-Year Gang Sentence Enhancement
The trial court sentenced Camacho to 25 years to life for his
willful, deliberate, premeditated attempted murder conviction.
(§§ 664/187, subd. (a).) To that sentence, the trial court imposed
a consecutive 10-year gang sentence enhancement pursuant to
section 186.22, subdivision (b)(1)(C). Because his attempted
murder conviction carried a life term, Camacho contends the trial
court should have imposed a 15-year minimum parole eligibility
term on the gang finding under section 186.22, subdivision (b)(5)

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rather than the 10-year term under section 186.22, subdivision
(b)(1)(C). The Attorney General agrees as do we.
The Attorney General points out that the trial court erred
in sentencing Muniz to the 10-year gang sentence enhancement
instead of to a 15-year minimum parole eligibility term—an issue
Muniz did not raise on appeal. We agree.
I. Senate Bill No. 136
On October 8, 2019, the Governor signed Senate Bill
No. 136, which became effective on January 1, 2020. Senate Bill
No. 136 amended section 667.5, subdivision (b) to provide, in
relevant part: “Except where subdivision (a) applies, where the
new offense is any felony for which a prison sentence or a
sentence of imprisonment in a county jail . . . is imposed or is not
suspended, in addition and consecutive to any other sentence
therefor, the court shall impose a one-year term for each prior
separate prison term for a sexually violent offense as defined in
subdivision (b) of Section 6600 of the Welfare and Institutions
Code . . . .” Thus, Senate Bill No. 136 amended section 667.5,
subdivision (b) to eliminate the one-year sentence enhancement
for prior prison terms other than those imposed for sexually
violent offenses.
Camacho contends that Senate Bill No. 136 is retroactive
under In re Estrada (1965) 63 Cal.2d 740 and that we should
strike his two one-year section 667.5, subdivision (b) sentence
enhancements as neither of his prior prison terms was served for
a sexually violent offense. The Attorney General agrees as do we.

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The trial court found that Muniz also had served one prior
section 667.5, subdivision (b) term. That term was not served for
a sexually violent offense and thus also must be stricken
IV. DISPOSITION
Camacho’s and Muniz’s section 667.5, subdivision (b) prior
prison term sentence enhancements are reversed. The matter is
remanded for the trial court to consider whether to exercise its
discretion to strike Camacho’s section 667, subdivision (a)
sentence enhancements and for the court to strike Camacho’s and
Muniz’s section 186.22, subdivision (b)(1)(C) 10-year terms and
impose 15-year minimum parole eligibility terms under section
186.22, subdivision (b)(5). The judgments are otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.

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1
The People v. Juan Carlos Camacho et al.
B292093
BAKER, Acting P. J., Concurring
I join the opinion for the court and write separately only to
offer an observation concerning our Supreme Court’s decision in
People v. Tran (2011) 51 Cal.4th 1040 (Tran). In short, I believe
it would be helpful for our Supreme Court to clarify the
parameters of the Evidence Code section 352 analysis a trial
court is to undertake when the People seek to use a prior
conviction of the defendant then being tried to prove a criminal
street gang predicate offense.
The holding in Tran is summarized at the outset of the
opinion: “A criminal street gang is any ongoing association that
has as one of its primary activities the commission of certain
criminal offenses and engages through its members in a ‘pattern
of criminal gang activity.’ [Citations.] A pattern of criminal gang
activity is ‘the commission of, attempted commission of,
conspiracy to commit, or solicitation of, sustained juvenile
petition for, or conviction of two or more’ specified criminal
offenses within a certain time frame, ‘on separate occasions, or by
two or more persons’ (the ‘predicate offenses’). [Citations.] We
hold that a predicate offense may be established by evidence of an
offense the defendant committed on a separate occasion.
Further, that the prosecution may have the ability to develop
evidence of predicate offenses committed by other gang members

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2
does not require exclusion of evidence of a defendant’s own
separate offense to show a pattern of criminal gang activity.”
(Tran, supra, 51 Cal.4th at p. 1044.)
The Tran opinion goes on to elaborate on this holding:
“Defendant argues that evidence of a defendant’s separate offense
on another occasion should not be admitted when it is
‘cumulative.’ By this he seems to mean that the evidence should
not be admitted when the prosecution has the ability to develop
evidence of offenses committed on separate occasions by other
gang members. But defendant cites no authority for the
argument that the prosecution must forgo the use of relevant,
persuasive evidence to prove an element of a crime because the
element might also be established through other evidence. The
prejudicial effect of evidence defendant committed a separate
offense may, of course, outweigh its probative value if it is merely
cumulative regarding an issue not reasonably subject to dispute.
[Citations.] But the prosecution cannot be compelled to ‘“present
its case in the sanitized fashion suggested by the defense.”’
[Citation.] When the evidence has probative value, and the
potential for prejudice resulting from its admission is within
tolerable limits, it is not unduly prejudicial and its admission is
not an abuse of discretion. . . . That the prosecution might be able
to develop evidence of predicate offenses committed by other gang
members therefore does not require exclusion of evidence of a
defendant’s own separate offense to show a pattern of criminal
gang activity.” (Tran, supra, 51 Cal.4th at pp. 1048-1049.)
While our Supreme Court has said that a trial court is not
required to exclude evidence of a defendant’s own separate
offense even if the prosecution can develop evidence of predicate
offenses committed by other gang members, it would be helpful to

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3
clarify that consideration of the prosecution’s alternative means
of proof still may inform a trial court’s Evidence Code section 352
judgment about whether a defendant’s own prior conviction
should be admitted as proof in support of an alleged gang
enhancement. If the prosecution has a ready means of proving a
plethora of qualifying predicate offenses committed by gang
members other than the defendant on trial, a decision to select a
prior conviction of the defendant being tried to prove a predicate
offense raises an inference that the selection is being made
because of (or somehow ignorant of) the prejudicial impact the
prior conviction may have on the jury. (See generally Tran,
supra, 51 Cal.4th at p. 1047 [“Without doubt, evidence a
defendant committed an offense on a separate occasion is
inherently prejudicial”].) Directing trial courts to consider
whether there is reason to draw this inference in a particular
case (and whether the inference is rebutted by considerations
identified by the People) does not compel a “sanitized”
prosecution. Quite the contrary: it provides an appropriate
safeguard to ensure a defendant’s guilt rests on evidence that
proves the charges at hand, not his or her prior criminal history.
BAKER, Acting P. J.

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