Filed 4/29/22 P. v. Galarza CA2/1

On transfer

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from an order of the Superior Court of Los Angeles County, Craig E. Veals, Judge. Affirmed.

Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Juan Carlos Galarza challenges the trial court’s denial of his petitions under Penal Code[1] section 1170.95 for resentencing on his murder and attempted murder convictions. We previously affirmed, but the Supreme Court ordered us to vacate our opinion and reconsider the case in light of People v. Lewis (2021) 11 Cal.5th 952 (Lewis), which clarified the standards for adjudicating a petition for resentencing, and Senate Bill No. 775 (Stats. 2021, ch. 551) (Senate Bill No. 775), which expanded section 1170.95 to allow for resentencing on attempted murder convictions.

We once again affirm because the record of Galarza’s conviction shows that the jury found Galarza acted with malice in the murder and the attempted murder. Thus, he remains ineligible for resentencing as a matter of law, and any errors in denying his petitions were harmless.

FACTUAL AND PROCEDURAL SUMMARY

In 2003, a jury convicted Galarza of one count of first degree murder (§ 187, subd. (a)) and one count of willful, deliberate, and premeditated attempted murder (§§ 187, subd. (a), 664). The prosecution alleged that Galarza took part in a shooting in a gang turf war. Galarza drove a car while his passenger shot at another car, fatally wounding one victim. The jury received instructions on deliberate premeditated murder (CALJIC No. 8.20); willful, deliberate, and premeditated attempted murder (CALJIC No. 8.67); and direct aiding and abetting (CALJIC No. 3.01); but not on felony murder or the natural and probable consequences doctrine. The trial court imposed an aggregate sentence of 70 years to life in prison. We affirmed the judgment. (See People v. Castillo et al. (Dec. 21, 2005, B174903, B181120) [nonpub. opn.].)

In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.), which eliminated liability for murder under the natural and probable consequences doctrine, and limited the application of the felony-murder doctrine. (People v. Gentile (2020) 10 Cal.5th 830, 842–843 (Gentile).) The legislation also enacted section 1170.95, which established a procedure for vacating murder convictions for defendants who could no longer be convicted of murder because of the changes in the law and resentencing those who were so convicted. (Stats. 2018, ch. 1015, § 4, pp. 6675–6677.)

Galarza filed a petition for resentencing on January 8, 2019. The trial court summarily denied the petition on January 9, 2019 on the ground that Galarza had not set forth facts upon which to grant relief. He filed a second petition on January 28, 2019. The district attorney filed a response, arguing that Galarza’s petition should be denied on the grounds that Senate Bill No. 1437 is unconstitutional, and that Galarza is not eligible under the terms of the statute. As an exhibit to its filing, the district attorney included a copy of the jury instructions in Galarza’s case, showing that the jury did not receive instructions on either felony murder or the natural and probable consequences doctrine.

The trial court summarily denied the second petition on April 5, 2019. The court reviewed the evidence in the case and determined that Galarza, although not the shooter, was ineligible for resentencing because he was a major participant in the murder who acted with reckless indifference to human life.[2]

After we affirmed the court’s denial of the petitions, the Legislature enacted Senate Bill No. 775, which amended section 1170.95 to allow defendants convicted of “attempted murder under the natural and probable consequences doctrine” to petition for resentencing. (Stats. 2021, ch. 551, § 2, amending § 1170.95, subd. (a).)

DISCUSSION

Galarza contends that we must reverse the denial of his petitions. He argues that the trial court erred by failing to follow the procedures specified by section 1170.95 before determining that he had failed to make a prima facie case for relief, by determining that section 1170.95 does not allow resentencing on attempted murder convictions, and by engaging in improper factfinding. We agree that the trial court’s actions were inconsistent with the Supreme Court’s decision in Lewis, and with the terms of section 1170.95 as amended by Senate Bill No. 775. We nevertheless affirm the denial of the petitions because the errors were harmless.

A. Background on Senate Bill No. 1437

A defendant convicted of murder, attempted murder, or manslaughter may file a petition under section 1170.95 to have his conviction vacated and be resentenced, if he “could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective” as a part of Senate Bill No. 1437. (§ 1170.95, subd. (a)(3).) Senate Bill No. 1437 amended section 188 to require proof of malice in all murder convictions, with an exception for the felony-murder doctrine. It also provided that “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) The effect of this amendment was to “eliminate[ ] natural and probable consequences liability for first and second degree murder.” (Gentile, supra, 10 Cal.5th at p. 849.) In addition, Senate Bill No. 1437 enacted section 189, subdivision (e), which restricted felony-murder liability to cases in which the defendant was the actual killer, acted with the intent to kill, or was a major participant in the underlying felony and acted with reckless indifference to human life. (See Gentile, supra, at pp. 842–843.)

When a defendant files a facially sufficient petition for resentencing under section 1170.95, the trial court must appoint counsel to represent the petitioner, obtain briefing from both sides, and hold a hearing to determine whether the petitioner has made a prima facie showing for relief. (§ 1170.95, subd. (c).) Our Supreme Court has explained that “the prima facie inquiry under [section 1170.95,] 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.” ’ ([People v.] Drayton [(2020)] 47 Cal.App.5th [965,] 978, quoting Cal. Rules of Court, rule 4.551(c)(1).) ‘[A] court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing.’ (Drayton, at p. 978, fn. omitted, citing In re Serrano (1995) 10 Cal.4th 447, 456 . . . .) ‘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 credibility determination adverse to the petitioner.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.)

The court may consult the record of conviction at this stage, but “should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ (Drayton, supra, 47 Cal.App.5th at p. 980.) . . . [T]he ‘prima facie bar was intentionally and correctly set very low.’ ” (Lewis, supra, 11 Cal.5th at p. 972.)

B. The Trial Court’s Errors Were Harmless

We agree with Galarza that the trial court erred in several respects in addressing his petitions. First, the court did not follow the procedures specified in section 1170.95, subdivision (c) before finding that Galarza had failed to make a prima facie case for relief. At the time it was not clear which procedures were required at this stage, but our Supreme Court in Lewis, supra, 11 Cal.5th at p. 962 held that the trial court must appoint counsel in all cases where the petitioner files a facially sufficient petition. In addition, the Legislature enacted Senate Bill No. 775, which amended section 1170.95, subdivision (c) to require the trial court to allow briefing from both sides and to hold a hearing before denying a petition at the prima facie stage.[3]

Next, the trial court erred by finding that the record of conviction showed that Galarza was a major participant in an underlying felony and acted with reckless indifference to human life, and denying his petition on this basis. Although the trial court may consult the record of conviction, it “should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion’ ” at the prima facie stage. (Lewis, supra, 11 Cal.5th at p. 972.)

Finally, the trial court’s determination that section 1170.95 does not allow for resentencing on attempted murder convictions is no longer correct. At the time the trial court made its ruling, relief under section 1170.95 was restricted to defendants “convicted of felony murder or murder under a natural and probable consequences theory.” (Former § 1170.95, subd. (a).) Although they are closely related, murder and attempted murder are separate crimes. (People v. Marinelli (2014) 225 Cal.App.4th 1, 5 [“t is well established that ‘ “[a]n attempt is an offense ‘separate’ and ‘distinct’ from the completed crime” ’ ”].) Senate Bill No. 775, however, amended section 1170.95 to make relief available to defendants convicted of “attempted murder under the natural and probable consequences doctrine.” (§ 1170.95, subd. (a).)

Nevertheless, we disagree with Galarza’s assertion that these errors require us to reverse the denial of his petition. In [i]Lewis, the Supreme Court held that, to obtain a reversal, a petitioner must show that he suffered prejudice by “ ‘demonstrat[ing] there is a reasonable probability that in the absence of the error he . . . would have obtained a more favorable result.’ [Citations.] More specifically, a petitioner ‘whose petition is denied before an order to show cause issues has the burden of showing “it is reasonably probable that if [he or she] had been afforded assistance of counsel his [or her] petition would not have been summarily denied without an evidentiary hearing.” ’ ” (Lewis, supra, 11 Cal.5th at p. 974.)

Galarza cannot meet this standard. The jury in his trial did not receive instructions on either natural and probable consequences nor felony murder. Thus, the jury could not have convicted him on either of those grounds. (See People v. Daniel (2020) 57 Cal.App.5th 666, 677.) Instead, the jury must have convicted him as a direct aider and abettor, which required the jury to conclude that he personally acted with malice. (See People v. Chiu (2014) 59 Cal.4th 155, 166−167, superseded by statute on another ground, as stated in Lewis, supra, 11 Cal.5th at p. 959, fn. 3.) We need not engage in any factfinding to conclude that Galarza is ineligible for resentencing as a matter of law. When the record shows that a defendant is categorically ineligible for resentencing, any error in denying his petition at the prima facie stage is harmless. (Daniel, supra, at pp. 677−678.)

DISPOSITION

The trial court’s orders denying the petitions for resentencing are affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

BENDIX, J.

[1] Subsequent statutory references are to the Penal Code.

[2] Galarza did not initially appeal this ruling, but instead filed a third petition for resentencing under section 1170.95, which the trial court again denied. Galarza then filed a new document in this court that he entitled “Petition to Vacate Conviction.” We deemed the petition a motion for leave to file a belated notice of appeal of the order denying his first petition, and granted the motion. All of Galarza’s petitions are substantively identical, and in this opinion, we address them as a single request for relief.

[3] We assume without deciding that Senate Bill No. 775 applies retroactively to Galarza’s case. On January 13, 2020, in response to Galarza’s third petition for resentencing, the trial court held a hearing on the matter attended by a deputy district attorney and appointed counsel representing Galarza, but this hearing was insufficient to satisfy the requirements of Senate Bill No. 775. Galarza’s counsel had not had an opportunity to submit a brief and informed the court that he was not prepared to argue on his client’s behalf.