P. v. Galvez

Filed 5/29/19 P. v. Galvez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
ALEJANDRO GALVEZ,
Defendant and Appellant.
B286807
(Los Angeles County
Super. Ct. No. BA432558)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Curtis B. Rappe, Judge. Affirmed.
Barbara A. Smith, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Steven E. Mercer, Deputy Attorney General,
for Plaintiff and Respondent.

-- 1 of 14 --

2
I. INTRODUCTION
A jury convicted defendant and appellant Alejandro Galvez
of first degree murder (Pen. Code,1 § 187, subd. (a)) and willful,
deliberate, and premeditated attempted murder (§ 664/187,
subd. (a)). As to the murder conviction, the jury found true the
allegations that defendant personally used and personally and
intentionally discharged a firearm causing death. (§ 12022.53,
subds. (b)-(d).) It further found true the special circumstance
allegation that defendant committed the murder by means of
lying in wait. (§ 190.2, subd. (a)(5).) As to the attempted murder
conviction, the jury found true the allegations that defendant
personally used and personally and intentionally discharged a
firearm causing great bodily injury. (§ 12022.53, subds. (b)-(d).)
It further found that he personally inflicted great bodily injury
under circumstances involving domestic violence. (§ 12022.7,
subd. (e).) The trial court sentenced defendant to life in prison
without the possibility of parole plus 54 years.
On appeal, defendant contends there was insufficient
evidence to support the lying-in-wait special circumstance. He
further contends the matter should be remanded to the trial court
to allow it to exercise its section 1385 discretion whether to strike
the firearm enhancements under section 12022.53. We affirm.
1 All statutory citations are to the Penal Code.

-- 2 of 14 --

3
II. BACKGROUND
Defendant and David Duran worked as armed security
guards for the same employer. They sometimes worked the same
shift. Defendant and Duran were friends and socialized outside
of work.
As of December 2014, Elizabeth H. had known defendant
for about five years. They had been in a relationship for about
three and a half or four years and had a four-year-old son
together. Their relationship ended in September 2013.
While Elizabeth H. and defendant were in a relationship,
they and their son lived together. Defendant’s mother, sisters
Yolanda and Laura, and niece Brenda Trujillo lived in the house
next door. After Elizabeth H. and defendant’s relationship
ended, Elizabeth H. and her son continued to live in the same
house and defendant moved out. When defendant moved out, he
gave his house keys to Elizabeth H.
Elizabeth H. did not have any “issues” with defendant after
their relationship ended. That started to change in May 2014,
when defendant learned that Elizabeth H. was going out with
friends after work—including Duran. Defendant became
aggressive with Elizabeth H. and called her repeatedly.
Around September or October 2014, Elizabeth H. and
Duran began a relationship. Elizabeth H. did not tell defendant
about her relationship with Duran because she was afraid of his
reaction. Duran told defendant, and defendant reacted badly.
He called Elizabeth H. and asked, “Why him?” Elizabeth H.
could hear that defendant was loading a gun.
The next day, Elizabeth H. encountered defendant when
she dropped off their son at school. Defendant approached and

-- 3 of 14 --

4
appeared to be mad. He grabbed his shirt and said he wanted to
speak with Elizabeth H. Elizabeth H. was afraid. From the way
defendant grabbed his shirt, she believed he was carrying a gun.
She said she would not speak with him unless he showed her he
had nothing under his shirt.
Defendant lifted his shirt and showed Elizabeth H. he did
not have a gun. Defendant appeared to calm down and sat in the
back seat of Elizabeth H.’s car. Defendant asked, “Why [Duran]?”
Elizabeth H. responded that Duran treated her well which made
her feel good and she liked him. Defendant slapped Elizabeth
H.’s face hard and told her, “Just leave [Duran] and everything
will be okay.”
Elizabeth H. told defendant she would leave Duran because
she was afraid of what defendant might do. Elizabeth H. spoke
with Duran and told him “what was going on.” He responded
that nothing would happen as long as they were together.
After the incident at the school, defendant would come onto
Elizabeth H.’s property. On one occasion, Elizabeth H. called the
police. When defendant began entering Elizabeth H.’s property
more often, Elizabeth H. felt afraid and unsafe. In their recent
interactions, defendant had been aggressive and rude, calling her
a bitch and a whore. In response, Elizabeth H. “got” a gun.2
Around December 28, 2014, defendant told a co-worker and
mutual friend of his and Duran’s that he was upset that Duran
was dating Elizabeth H. and “that didn’t sound like a friend to
him.” The co-worker advised defendant “to forget about
everything that had happened and to let them do what they were
2 Elizabeth H. initially testified that her daughter was going
to buy her a gun for Christmas. She later testified that she did
not receive a gun for Christmas.

-- 4 of 14 --

5
doing.” Angry, defendant responded, “[Y]ou don’t do that to a
friend and he had sent [persons] to fuck [Duran] up, but they
couldn’t.” Immediately after that conversation, the co-worker
called Duran and advised Duran of his conversation with
defendant.
On December 30, 2014, Elizabeth H. was out with Duran
and her son. At around 10:00 or 10:30 p.m., defendant called
Elizabeth H. and asked to speak with their son. Elizabeth H.
gave her phone to her son, but he said he did not want to talk.
Elizabeth H. told defendant that he might be able to speak with
their son when they got home.
When Elizabeth H., Duran, and Elizabeth H.’s son arrived
at Elizabeth H.’s house, Elizabeth H. unlocked the front gate and
parked on the property. Elizabeth H. unlocked the house’s front
security door and interior door and they entered the house.
Duran lay Elizabeth H.’s son, whom he was carrying, on the bed
in Elizabeth H.’s bedroom.
Around this time, defendant called Elizabeth H. again and
she told him that their son was asleep. Defendant’s tone of voice
and demeanor sounded normal during the conversation.
When Elizabeth H. attempted to end one of her
conversations with defendant, defendant said, “‘Why don’t you
want to talk? I am sure you’re with your boyfriend, right?’”
Elizabeth H. confirmed that she was with Duran.
Because defendant repeatedly called Elizabeth H.
thereafter, she blocked his calls and he could only send her text
messages. At 10:23 p.m., defendant texted Elizabeth H. and
asked if they were already in bed. At 10:52 p.m., he texted,
“Hello.” At 11:25 p.m., defendant texted, “I am calling you, pick
up.”

-- 5 of 14 --

6
When defendant sent the last text, he was standing outside
of Elizabeth H.’s house. Around that time, Elizabeth H.’s dogs
were acting strangely, so she opened her bedroom curtains and
saw defendant standing about four or five feet from the window.
There were bars on Elizabeth H.’s windows.
Elizabeth H. told defendant to leave. Defendant said he
only wanted to talk with her. Defendant’s tone of voice and body
language were “friendly.” Elizabeth H. again asked defendant to
leave, telling him they did not have anything to talk about.
Defendant did not leave. Elizabeth H. called defendant’s sister
Yolanda and told her of her brother’s presence and requested that
she ask her brother to leave.
Both of defendant’s sisters and his mother came outside
and told defendant to leave. Defendant said he would leave after
he spoke to Elizabeth H. Elizabeth H. did not go outside and
speak to defendant because she was scared. At some point,
defendant said to Elizabeth H., “Okay. Tell your boyfriend to
come outside and open the door and then I will leave.” Defendant
repeated this request two or three more times.
When Duran heard defendant say he wanted Duran to
come outside, Duran said, “‘Let me just go and open the door so
he will go away.’” Duran’s demeanor was calm. He did not
appear to be frightened, aggressive, or angry. Elizabeth H. told
Duran not to go outside.
Duran retrieved his work gun from a safe in Elizabeth H.’s
bedroom closet. He gave the gun to Elizabeth H. and told her he
was going outside to talk with defendant. He told her not to be
afraid and to stay in the house.
Elizabeth H. was nervous and really scared about what was
happening. She did not think to call the police—everything was

-- 6 of 14 --

7
happening so fast. As Duran left the bedroom, Elizabeth H. was
putting on her shoes. Duran was calm and assured Elizabeth H.
that everything would be alright.
As Elizabeth H. was tying her shoes, she heard Duran
unlock and open the front door and security door and say
something to defendant. Within 20 to 30 seconds, Elizabeth H.
heard Duran say, “Oh shit,” and heard someone running into the
house.
Elizabeth H. looked out of her bedroom and into the living
room. She saw Duran running through the house to the back and
heard loud noises she believed were gunshots. Defendant ran
after Duran, but stopped when he saw Elizabeth H. Defendant
was holding a gun.
Elizabeth H. tried to close the bedroom door, but defendant
pushed the door open. Elizabeth H. could not remember if she
fired Duran’s gun. She heard five or six more gunshots. She felt
weak and fell to a seated position on the floor. Defendant
grabbed Elizabeth H. by the hair, put his gun to her head, and
said, “I told you, bitch, you were not going to fool me.” Elizabeth
H. understood defendant’s statement to mean that he was going
to kill her.
By the time defendant held the gun to Elizabeth H.’s head,
his mother, sisters, and niece had entered the bedroom. Laura
told defendant to leave Elizabeth H. alone. Elizabeth H. said to
defendant that their son was sleeping on the bed. Elizabeth H.
could not remember if defendant responded. The only other thing
he said to her was, “You’re going to regret this.”
Duran entered the room. He grabbed defendant by the arm
and turned defendant toward him. Elizabeth H. heard another

-- 7 of 14 --

8
gunshot and saw Duran fall dead on the floor. Laura yelled,
“Look what you did.” Defendant did not respond.
Defendant grabbed Elizabeth H. again and Laura grabbed
defendant. Elizabeth H. and Laura struggled with defendant
over his gun. Elizabeth H. wrested the gun from defendant and
threw it under the bed. Defendant dragged Elizabeth H. to the
other side of the bed where he hit her head with the gun’s
magazine several times.
Laura grabbed defendant, yelled at him to let Elizabeth H.
go, and threw him towards the door. Defendant then pointed a
second gun at Elizabeth H. His family members pushed his
hands down and took him out of the house. As they were outside
before the police arrived, Trujillo and her mother asked
defendant why he “did it.” He responded, “‘I did it to get my
honor back.’”
A 911 call concerning shots fired at Elizabeth H.’s house
was placed at midnight. Elizabeth H. waited in her bedroom
until the police arrived. She was taken to the hospital; she had
been shot three times—twice in the leg and once in the back.
Duran sustained five gunshot wounds, three of which were fatal.
Defendant, seated on the front steps next to his mother when the
police arrived, was arrested.
III. DISCUSSION
A. Lying in Wait
Defendant contends that the jury’s lying-in-wait special
circumstance finding was not supported by sufficient evidence.
We disagree.

-- 8 of 14 --

9
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.’ [Citation.] The same standard of review applies to the
sufficiency of the evidence supporting special circumstance
findings. [Citation.]” (People v. Edwards (2013) 57 Cal.4th 658,
715.)
2. Analysis
“‘“The lying-in-wait special circumstance requires ‘an
intentional murder, committed under circumstances which
include (1) a concealment of purpose, (2) a substantial period of
watching and waiting for an opportune time to act, and (3)
immediately thereafter, a surprise attack on an unsuspecting
victim from a position of advantage. . . .’ [Citations.]”’
[Citation.]” (People v. Mendoza (2011) 52 Cal.4th 1056, 1073
[(Mendoza)].) Defendant contends the evidence was insufficient

-- 9 of 14 --

10
to establish the concealment of purpose and watching and
waiting elements.
a. Concealment of purpose
“‘“‘The element of concealment is satisfied by a showing
“‘that a defendant’s true intent and purpose were concealed by
his actions or conduct. It is not required that he be literally
concealed from view before he attacks the victim.’”’ [Citation.]”’
[Citation.]” (Mendoza, supra, 52 Cal.4th at p. 1073.)
Defendant argues there was insufficient evidence that he
concealed his true intent and purpose because there was no
evidence of a substantial pause when Duran went to the front
door during which defendant “sought to lull [Duran]’s suspicions.”
We disagree with defendant’s suggestion that the evidence of
concealment should be limited to the period that defendant and
Duran interacted at the front door. Instead, that period includes
all the time defendant was present at Elizabeth H.’s house and
attempted to conceal his true intent and purpose—to murder
Duran and Elizabeth H.—and thereby gain access into Elizabeth
H.’s house.
When defendant stood outside Elizabeth H.’s bedroom
window and texted her at 11:25 p.m., he knew she was with
Duran. Yet, despite defendant’s displeasure about Elizabeth H.’s
relationship with Duran, defendant’s tone of voice and body
language were “friendly” when he spoke with Elizabeth H.
Defendant said he only wanted to talk with Elizabeth H. When
defendant’s sisters and mother tried to get defendant to leave, he
said he would leave once he spoke with Elizabeth H. When
Elizabeth H. would not speak with defendant, defendant said

-- 10 of 14 --

11
that Elizabeth H. should have Duran open the door and then he
would leave.
Although Elizabeth H. was afraid and Duran was at least
concerned—he gave his gun to Elizabeth H. before he went to the
door—defendant’s concealment worked. Defendant sufficiently
lulled Duran to cause Duran to open the front door and security
gate thereby providing defendant with access into Elizabeth H.’s
home so he could murder Duran and Elizabeth H. If defendant
had not sufficiently lulled Duran, defendant could not have
gained access to the home as the windows were barred. That
Duran went to the front door unarmed and his comment when
defendant began his attack—“Oh shit”—demonstrates that
defendant successfully caught Duran off guard. Accordingly,
there was sufficient evidence of concealment of purpose.
(Mendoza, supra, 52 Cal.4th at p. 1073.)
b. Watching and waiting
“As for the watching and waiting element, the purpose of
this requirement ‘is to distinguish those cases in which a
defendant acts insidiously from those in which he acts out of rash
impulse. [Citation.] This period need not continue for any
particular length “‘of time provided that its duration is such as to
show a state of mind equivalent to premeditation or
deliberation.’” [Citation.]’ [Citation.]” (Mendoza, supra, 52
Cal.4th at p. 1073, fn. omitted.)
Defendant contends the evidence was insufficient to prove a
substantial period of watching or waiting because his encounter
with Duran at Elizabeth H.’s front door lasted from 20 to 30
seconds before he shot Duran. Instead, defendant was on

-- 11 of 14 --

12
Elizabeth H.’s property for approximately 30 minutes before he
shot Duran. At 11:25 p.m., defendant texted Elizabeth H. from
her property—outside of her bedroom window. The shooting took
place around midnight.
Although defendant’s presence was known during that
approximate 30-minute period,3 defendant used that time to try
to secure access to Duran and Elizabeth H. As explained above,
he used that time to try to lull them into a false sense of security
thereby creating “an opportune time to [attack].” (Mendoza,
supra, 52 Cal.4th at p. 1073.) Thus, defendant’s 30 minutes of
watching and waiting on Elizabeth H.’s property demonstrate
that he acted “insidiously” and not “out of rash impulse.” (Ibid.)
B. Senate Bill No. 620
Defendant contends remand is necessary so that the trial
court may exercise its discretion whether to strike the firearm
enhancements pursuant to section 12022.53, subdivision (h).4
3 A defendant’s presence need not be concealed from his
victim while watching and waiting. (See People v. Morales (1989)
48 Cal.3d 527, 555, disapproved on another ground in People v.
Williams (2010) 49 Cal.4th 405, 459 [“[T]he evidence was
sufficient to support a finding of lying-in-wait murder, based on
defendant’s watchful waiting, from a position of advantage in the
backseat, while the car was driven to a more isolated area, and
his sudden surprise attack, from behind and without warning, on
[the] victim”].)
4 “The court may, in the interest of justice pursuant to
Section 1385 and at the time of sentencing, strike or dismiss an
enhancement otherwise required to be imposed by this section.
The authority provided by this subdivision applies to any

-- 12 of 14 --

13
Subdivision (h) of section 12022.53 became effective
January 1, 2018, pursuant to Senate Bill No. 620. (Stats. 2017,
ch. 682, § 2.) Prior to Senate Bill No. 620, a trial court lacked
discretion to strike or dismiss a firearm enhancement pursuant
to section 12022.53. (People v. Chavez (2018) 22 Cal.App.5th 663,
708; People v. Arredondo (2018) 21 Cal.App.5th 493, 506.) The
Attorney General concedes that Senate Bill No. 620 applies
retroactively to defendant and that defendant therefore “should
be given a new sentencing hearing at which the trial court can
consider whether to strike the firearm enhancements.” While we
agree that Senate Bill No. 620 applies retroactively (People v.
Woods (2018) 19 Cal.App.5th 1080, 1090-1091; People v. Robbins
(2018) 19 Cal.App.5th 660, 679), we disagree that remand is
necessary in this case. Based on the nature of the convictions,
the evidence presented at trial, and the sentence imposed by the
trial court, that is, two consecutive terms of life without the
possibility of parole, the possibility that the trial court would
strike or dismiss the firearms enhancements would be so remote
as to make a remand unnecessary.
resentencing that may occur pursuant to any other law.”
(§ 12022.53, subd. (h).)

-- 13 of 14 --

14
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.

-- 14 of 14 --