P. v. Gallegos

Filed 8/5/20 P. v. Gallegos CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ERIK ANTONIO GALLEGOS,
Defendant and Appellant.
G057647
(Super. Ct. No. 99CF1231)
O P I N I O N
Appeal from a postjudgment order of the Superior Court of Orange County,
Kimberly Menninger, Judge. Affirmed.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri, and
Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent.

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In 2002, a jury convicted Erik Antonio Gallegos of second degree murder
and found true he was armed with a firearm. We affirmed the conviction in 2004.
(People v. Gallegos (Sept. 14, 2004, G032015) [nonpub. opn.] (Gallegos).) In April
2019, Gallegos filed a petition for resentencing under Penal Code section 1170.951 and
requested the appointment of counsel. The trial court determined Gallegos was ineligible
for relief and denied the petition without appointing counsel or holding a hearing. We
find no error and affirm the postjudgment order.
FACTS
Our prior opinion summarized the evidence of the underlying crime as
follows: “Terrence Ragland was shot to death in front of his parent[s’] home in Santa
Ana shortly after midnight. Minutes before the shooting, a neighbor returning home saw
a vehicle driving behind hers that then parked in front of the victim’s home; she saw a
man get out of the passenger side of the car, but due to poor lighting conditions she could
not identify him. Around the same time, the victim’s mother heard footsteps as someone
in women’s heels c[a]me to the front door and r[a]ng the bell. Minutes later she heard
gunfire and looked out the window to see her son l[y]ing on the sidewalk. [¶] Earlier
that evening, [Gallegos] attended a party at Charles Sorenson’s home along with Eric
Ritchie (referred to in this trial as Eric Veldman). . . . Sorenson overheard Ritchie talk
about going to Santa Ana to collect on a debt owed by someone to whom he had supplied
methamphetamine. Sorenson saw Ritchie with a nine millimeter gun that night. A short
time later, [Gallegos] commented to Sorenson that ‘they were going to take care of a
debt’ and that ‘someone might get shot tonight.’ When Sorenson tried to dissuade
defendant from going with Ritchie, [Gallegos] told him it would be all right. [Gallegos]
then left with Ritchie and Ritchie’s girlfriend. [¶] Sorenson saw [Gallegos] when he
returned to the house around 3:00 a.m. [Gallegos] told Sorenson they had driven to the
1 All further statutory references are to the Penal Code.

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victim’s house and lured him outside where Ritchie confronted the victim and shot him.
[Gallegos] said he remained in the car the entire time. Although Sorenson had been
intoxicated earlier that evening, he claimed to have been sober when this conversation
took place. Sorenson did not tell the police about [Gallegos’s] postoffense statement
when he was interviewed a few months after the murder, but instead revealed it to the
district attorney’s investigator shortly before trial. [¶] Sorenson’s roommate, Michael
Platta, also attended the party the night of the murder and likewise heard Ritchie say that
they were going to collect on a debt and, if the person did not pay it, that he would kill
him. Platta saw Ritchie remove a small handgun from his backpack and hand it to
[Gallegos]. The next day, [Gallegos] called Platta and asked if it was safe to come home.
[Gallegos] told Platta that the person they went to collect the debt from was dead, that
Ritchie’s girlfriend had lured the victim out of his house, and that Ritchie had shot him.
At [Gallegos’s] insistence, Platta obtained a newspaper that contained an article about the
murder. [Gallegos] fled the area after the shooting. He was arrested several months
later.” (Gallegos, supra, G032015.)2
A different panel of this court addressed, and ultimately rejected,
Gallegos’s challenge to the prosecutor’s closing argument. (Gallegos, supra, G032015.)
Our colleagues noted that the prosecutor argued, and the jury was instructed on, a theory
of direct aiding and abetting. (Ibid.) They explained as follows: “Here, the prosecutor
argued [Gallegos] knew about Ritchie’s plan to shoot the victim based on the pre-offense
statements at the party overheard by Sorenson and Platta. Specifically, the prosecutor
argued [Gallegos’s] statement that ‘someone might get shot’ showed ‘he had knowledge
of what was going on, and with that knowledge he left because his friend wanted him to
go to Santa Ana. And there were two things that were going to happen: They [were]
going to come away with money or somebody [was] going to get shot. [Gallegos] knew
2 We granted Gallegos’s request to take judicial notice of our 2004 opinion.

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that, [Ritchie] knew that, and [Gallegos] went there for the purpose of helping him,
supporting him, encouraging him, facilitating him, whatever you want to call it. [¶] Do
you think he just went there just as an observer?’ [¶] . . . [¶] [Gallegos] argues that the
prosecutor essentially told the jurors that they could find him guilty as an aider and
abettor, regardless of whether he shared Ritchie’s intent, simply if they found he was
present at the scene during the shooting. We agree with [Gallegos] to the extent the
prosecutor implied his mere presence at the scene, coupled with his knowledge of
Ritchie’s intent, made him liable for the murder. But the evidence showed far more than
[Gallegos’s] mere presence, and we presume the jurors read and followed the instructions
given to them pertaining to defendant’s liability as an aider and abettor.” (Ibid.)
In 2019, Gallegos filed a petition for resentencing under section 1170.95.
In accordance with the statute, Gallegos identified the superior court’s case number and
the year of his conviction and stated he had been “convicted of [first or second] degree
murder under the natural and probable consequences doctrine.” Defendant further stated
that, because of the changes made by Senate Bill No. 1437, he “could not now be
convicted” and requested the court appoint counsel for him.
The trial court denied the petition without appointing counsel for Gallegos
or holding a hearing. It determined Gallegos was facially ineligible for resentencing
because, “The petition does not set forth a prima facie case for relief under the statute. A
review of court records indicated defendant is not eligible for relief under the statute
because the defendant does not stand convicted of murder or defendant’s murder
conviction(s) is not based on felony-murder or on a natural and probable consequences
theory of vicarious liability for aiders and abettors.”
The trial court’s subsequent minute order clarifying the reasons for the
denial, stating the court had “reviewed and considered” the following records in reaching
its determination Gallegos failed to state a prima facie case for resentencing relief:
Gallegos’s petition filed April 2, 2019; felony complaint filed May 19, 1999; felony

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information filed February 25, 2000; abstract of judgment filed March 19, 2003; verdict
forms filed June 10, 2002; jury instructions given filed June 10, 2002; and jury
instructions requested by Gallegos filed June 10, 2002.
Gallegos filed a noticed of appeal. At Gallegos’s request, we ordered the
record augmented to include the trial court’s minute order specifying which documents it
had considered in denying the petition, the jury instructions given at trial, and the jury
instructions requested.
DISCUSSION
I. Resentencing Under Section 1170.95
The Legislature enacted Senate Bill No. 1437 (S.B. 1437) for the expressed
purpose of “amend[ing] the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with the intent to kill, or was
not a major participant in the underlying felony who acted with reckless indifference to
human life.” (§§ 188, 189, as amended by Stats. 2018, ch. 1015, § 1, subd. (f).)
S.B. 1437, “amended sections 188 and 189 and added section 1170.95 to
the Penal Code, significantly modifying the law relating to accomplice liability for
murder.” (People v. Lopez (2019) 38 Cal.App.5th 1087, 1098-1099), review granted
Nov. 13, 2019, S258175 (Lopez); Cal. Rules of Court, rule 8.1115(e)(1) [while review
pending may rely on for persuasive value].) Section 1170.95, subdivision (a), provides,
in relevant part, “A person convicted of felony murder or murder under a natural and
probable consequences theory may file a petition with the court that sentenced the
petitioner to have the petitioner’s murder conviction vacated and to be resentenced on
any remaining counts . . . .” Thus, under the new law, the natural and probable
consequences doctrine can no longer be used to support a murder conviction. (Lopez,
supra, 38 Cal.App.5th at p. 1103 & fn. 9.)

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If the petitioner makes a prima facie showing under section 1170.95, the
court must issue an order to show cause and, absent a waiver and stipulation by the
parties, hold a hearing to determine whether to vacate the murder conviction, recall the
sentence, and resentence the petitioner. (§ 1170.95, subds. (c) & (d)(1).) A prima facie
showing under section 1170.95, requires the following: (1) an accusatory pleading was
filed against the petitioner allowing the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences doctrine; (2) he or she
was convicted of first or second degree murder following a trial, or accepted a plea offer
to first or second degree murder in lieu of trial, at which he or she could have been so
convicted; and (3) that he or she could not be convicted of murder due to the amendments
to sections 188 and 189. (§ 1170.95, subd. (a)(1)-(3).)
II. Analysis
Gallegos contends the trial court committed error when it denied his section
1170.95 petition at the prima facie stage before appointing counsel. He asserts the prima
facie review should have been limited to the allegations in the resentencing petition itself,
notwithstanding the fact that those allegations are disproved by the undisputed record.
We find no error.
“Prima facie evidence is that which will support a ruling in favor of its
proponent if no controverting evidence is presented. [Citations.]” (Evans v. Paye (1995)
32 Cal.App.4th 265, 280, fn 13.) In his resentencing petition, Gallegos stated the
statutory elements for relief and claimed he “was convicted of 1st or 2nd degree murder
pursuant to the felony murder rule or the natural and probable consequences doctrine[.]”
Gallegos asserts the court could look no further than his petition in evaluating his prima
facie showing. We disagree.

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A trial court may properly consider the record of conviction in evaluating
the petitioner’s initial prima facie showing under section 1170.95, subdivision (c).
(People v. Lewis (2020) 43 Cal.App.5th 1128, 1137 (Lewis).)3 The Lewis court correctly
analogized the procedure for petitions for resentencing under section 1170.95 to relief
under several other resentencing statutes: “Under section 1170.18, enacted by
Proposition 47, for example, a person convicted of certain felonies that the Legislature
subsequently redefined as misdemeanors may petition the court to recall his or her
sentence and have the felony conviction reclassified as a misdemeanor. [Citations.] . . .
In evaluating the petition at [the prima facie] stage, the court is permitted to examine the
petition ‘as well as the record of conviction.’ [Citation.] [¶] Similarly, under the Three
Strikes Reform Act of 2012, known as Proposition 36, an inmate serving a third strike
sentence may petition to be resentenced if, among other criteria, his or her sentence is for
a crime that is not a serious or violent felony. [Citation.] . . . [At the prima facie state,
t]he trial court can determine whether the petitioner met [their] burden based in part on
the record of the petitioner’s conviction. [Citation.] And in habeas corpus proceedings,
the court may summarily deny a petition based upon facts in its file that refute the
allegations in the petition. [Citation.]” (Id. at pp. 1137-1138.)
Here, nothing indicated Gallegos was prosecuted for murder under the
natural and probable consequences doctrine or the law of felony murder. The prosecutor
requested but did not receive an instruction on the natural and probable consequences
doctrine. No felony murder instruction was requested. Therefore, the jury was not
instructed on the natural and probable consequences or felony murder doctrines. Instead,
3 On January 8, 2020, the Attorney General filed a notice of new authority,
including Lewis. We received no supplemental briefing from Gallegos. While helpful
and concise, this new, non-binding authority addresses the same points raised by the
Attorney General on appeal, specifically analogizing procedures for resentencing under
Propositions 36 and 47.

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the jury was instructed on direct aiding and abetting as well as the substantive offense of
murder.
Gallegos arguments center on speculation. First, he attacks the veracity of
the trial court’s records, stating there is “no assurance” they are “accurate and complete”
as “[a]dditional instructions could have been given orally.” This bare assumption is
unsupported by evidence and ignores the fact that the document was filed as a court
record of the instructions given at trial.
Second, Gallegos contends the “entirety of instructions given, together with
the prosecuting attorney’s argument, may have led the jury to believe that Gallegos could
properly be held liable for second degree murder merely because he committed an
intentional act, i.e., driving Ritchie to collect a drug debt from Ragland, knowing the
natural consequences of that act were dangerous to human life.” Gallegos may not rely
on this conjecture, without support in the record, to support his petition.
We also reject Gallegos’s claim the jury may have misapplied the
instruction given on implied malice second degree murder to be the “equivalent” of the
natural and probable consequences theory, “inasmuch as the jury may have convicted
Gallegos for murder committed by another person without finding it true beyond a
reasonable doubt that Gallegos shared the perpetrator’s murderous intent.”
We are not persuaded. Here, the jury was never instructed on a natural and
probable consequences theory. There is nothing in the record to demonstrate the jury
misapplied the implied malice instructions. Gallegos was ineligible for relief under
section 1170.95 because he was not convicted of felony murder or murder as an aider or
abettor under a natural and probable consequences theory. (§ 1170.95, subd. (a)(3).) The
court did not err by relying on its own records to summarily deny Gallegos’s petition.
Finally, Gallegos contends the trial court improperly failed to appoint
counsel for his section 1170.95 petition. He asserts the court was required by section
1170.95, subdivision (c), to appoint counsel once he alleged he satisfied the filing

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requirements for the petition, notwithstanding the veracity of those allegations. Gallegos
argues “[t]he trial court’s ruling was premature and violative of the statutory scheme
because [the] factual allegations, if true, entitled him to the appointment of counsel.” As
discussed above, however, the uncontroverted evidence demonstrated the facts alleged in
Gallegos’s petition for resentencing were not true. Because the court’s denial was proper
at the initial stage of review, his right to counsel was never triggered.
DISPOSITION
The court’s postjudgment order denying Gallegos’s petition for
resentencing is affirmed. Gallegos’s January 3, 2020, request for judicial notice is
denied.4
O’LEARY, P. J.
WE CONCUR:
MOORE, J.
ARONSON, J.
4 Judicial notice is unnecessary because citation to the material is sufficient.
(Wittenburg v. Beachwalk Homeowners Assn. (2013) 217 Cal.App.4th 654, 665, fn. 4.)

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