P. v. Galarza

Filed 3/30/21 P. v. Galarza CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE,
Plaintiff and Respondent,
v.
JUAN CARLOS GALARZA,
Defendant and Appellant.
B303867
(Los Angeles County
Super. Ct. No. BA227460)
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.
Xavier Becerra, Attorney 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.
____________________________

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Defendant and appellant Juan Carlos Galarza challenges
the trial court’s denial of his petition under Penal Code1
section 1170.95 for resentencing on his murder and attempted
murder convictions. He argues that the trial court erred by
denying his petition on the basis of facts the court found in
the record of conviction. We disagree and affirm. If the record
of a defendant’s conviction shows as a matter of law that the
defendant is ineligible for resentencing, the trial court may
summarily deny the petition without appointing counsel. (See
People v. Verdugo (2020) 44 Cal.App.5th 320, 329, 332–333,
review granted Mar. 18, 2020, S260493 (Verdugo).) In this
case, the record of conviction shows that the jury found that
Galarza acted with malice in the murder, so he is ineligible for
resentencing. In addition, section 1170.95 does not provide for
resentencing on convictions of attempted murder. Thus, the
trial court correctly denied the petition.
FACTUAL AND PROCEDURAL SUMMARY
In 2003, a jury convicted Galarza of one count of first
degree murder (§ 187, subd. (a)) and one count of 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) 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.
1 Subsequent unspecified statutory references are to the
Penal Code.

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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.) (Senate Bill No. 1437), which abolished
the natural and probable consequences doctrine in cases of
murder, and limited the application of the felony murder
doctrine. (See 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 new petition on
January 28, 2019. The District Attorney filed a response,
arguing that Galarza’s petition should be denied because
Senate Bill No. 1437 is unconstitutional, and because Galarza
was 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 petition on April 5,
2019.2 The court reviewed the evidence in the case and
2 According to the record, however, more than 8 months
later, on January 13, 2020, the trial court held a hearing on the
matter attended by a deputy district attorney and appointed

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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.
DISCUSSION
A. Background on Senate Bill No. 1437
Senate Bill No. 1437 includes both prospective and
retrospective provisions. Prospectively, the law amended
section 188 to provide that “[e]xcept as stated in subdivision (e)
of Section 189, in order to be convicted of murder, a principal in
a crime shall act with malice aforethought. Malice 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 is
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
counsel representing Galarza. At that hearing, Galarza’s counsel
was not prepared to argue on his client’s behalf. The trial court
offered Galarza’s attorney an opportunity to examine the case
and “apprise the court” if he had any basis for challenging the
court’s earlier decision. The record does not indicate that
Galarza’s attorney raised any issues with the decision. Because
Galarza’s attorney did not have an opportunity to file a reply
brief before the court issued its original ruling, we treat the trial
court’s decision as a dismissal at the first stage of prima facie
review. (See Verdugo, supra, 44 Cal.App.5th at p. 328–330,
review granted Mar. 18, 2020, S260493.)

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and acted with reckless indifference to human life. (See Gentile,
supra, at pp. 842–843.)
The retroactive component of Senate Bill No. 1437 is
codified in section 1170.95. (See Gentile, supra, 10 Cal.5th
at p. 853 [“the Legislature intended section 1170.95 to be
the exclusive avenue for retroactive relief under Senate Bill
[No.] 1437”].) This section allows a defendant “convicted
of felony murder or murder under a natural and probable
consequences theory [to] file a petition” for resentencing
under the new law. (§ 1170.95, subd. (a).) To be eligible for
resentencing, a defendant must show that he “could not be
convicted of first or second degree murder because of changes
to Section 188 or 189 made effective” as a part of Senate Bill
No. 1437. (§ 1170.95, subd. (a)(3).)
The first step for a defendant to obtain relief under
section 1170.95 is to file a declaration affirming that he is
eligible for resentencing under the new law. (See § 1170.95,
subd. (b)(1).) The trial court reviews the petition, and if
the petition is incomplete, “the court may deny the petition
without prejudice to the filing of another petition and advise
the petitioner that the matter cannot be considered without
the missing information.” (§ 1170.95, subd. (b)(2).)
If the defendant’s petition is facially sufficient, the trial
court must determine whether the defendant has made a prima
facie case for resentencing under section 1170.95, subdivision (c).
As we described in People v. Lewis (2020) 43 Cal.App.5th 1128,
1139–1140, review granted Mar. 18, 2020, S260598 (Lewis), this
is a two-step process. First, the court “review[s] the petition and
determine[s] if the petitioner has made a prima facie showing
that the petitioner falls within the provisions of this section.”

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(§ 1170.95, subd. (c).) This is “a preliminary review of statutory
eligibility for resentencing,” akin to an initial review of a petition
for resentencing under Propositions 36 and 47. (Verdugo, supra,
44 Cal.App.5th at p. 329, review granted Mar. 18, 2020,
S260493.) “The court’s role at this stage is simply to decide
whether the petitioner is ineligible for relief as a matter of law,
making all factual inferences in favor of the petitioner.” (Ibid.)
In making this decision, the trial court may consider the record
of conviction, including any prior appellate opinions in the case.
(Lewis, supra, at pp. 1137–1138; Verdugo, supra, at pp. 329–330.)
If the trial court does not deny the petition at this point,
“the court shall appoint counsel to represent the petitioner”
(§ 1170.95, subd. (c)) for the second stage of prima facie review.
The prosecutor then files a response, and the petitioner may file
a reply. “If the petitioner makes a prima facie showing that he
or she is entitled to relief, the court shall issue an order to show
cause.” (Ibid.) The review at this stage “is equivalent to the
familiar decision[-]making process before issuance of an order
to show cause in habeas corpus proceedings, which typically
follows an informal response to the habeas corpus petition
by the Attorney General and a reply to the informal response
by the petitioner.” (Verdugo, supra, 44 Cal.App.5th at p. 328,
review granted Mar. 18, 2020, S260493.) Under this standard,
“[i]f the petitioner makes a prima facie showing that he or she
is entitled to relief, the court shall issue an order to show cause.”
(§ 1170.95, subd. (c).)
If the court issues an order to show cause, it must hold
a hearing within 60 days to determine whether to vacate the
murder conviction. (§ 1170.95, subd. (d)(1).) At this third and
final stage of the proceeding, the prosecution has the burden

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of proving “beyond a reasonable doubt[ ] that the petitioner is
ineligible for resentencing.” (§ 1170.95, subd. (d)(3).)
B. The Trial Court Did Not Err by Summarily
Denying the Petition
Galarza contends that the trial court erred by denying
his petition on the basis of the record of conviction. According
to Galarza, at the prima facie stage, the court must consider
the defendant’s allegations alone, with no regard to whether the
defendant’s claims are contradicted by the record. Galarza also
contends that the trial court erred by relying on its own factual
findings as a basis for denying his petition. Finally, Galarza
contends that the trial court erred in determining that his
attempted murder conviction is not subject to resentencing under
section 1170.95. We find no merit in Galarza’s contentions and
affirm.
1. The trial court may consider the record
of conviction as part of its prima facie
review
Galarza contends that the function of prima facie review
under section 1170.95, subdivision (c) is to determine whether
the allegations in the defendant’s petition, “without more and
taken as true, state a prima facie showing of entitlement to
relief.” According to Galarza, the trial court may not consult the
record of the defendant’s conviction or any other information in
determining whether the defendant’s claims are true. Instead,
“[i]f the pleading allegations state a prima facie case, the court
must issue an [order to show cause].”
Galarza cites no case that has interpreted the statute
in this way, nor are we aware of any. If Galarza were correct,
any defendant would be able to make a prima facie case simply

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by alleging that he was convicted of murder under a theory
of natural and probable consequences, without being subject
to even the most elementary verification of his assertions.
This would render the prima facie determination under
section 1170.95, subdivision (c) almost duplicative of the
previous stage, in which the trial court determines under
section 1170.95, subdivision (b)(2) whether the petition is
facially sufficient. It would also be inconsistent with the
definition of “prima facie showing” in analogous situations
such as those in habeas corpus proceedings. (See Verdugo,
supra, 44 Cal.App.5th at p. 328, review granted, Mar. 18, 2020,
S260493.)
We stand by our holding in Lewis that the trial court may
consider the record of conviction in determining whether the
defendant has made a prima facie showing, and that the court
may deny a petition at the prima facie stage if the defendant’s
claims are contradicted in the record. (Lewis, supra, 43
Cal.App.5th at pp. 1137–1138, review granted Mar. 18, 2020,
S260598; accord, Verdugo, supra, 44 Cal.App.5th at pp. 329–330,
review granted Mar. 18, 2020, S260493.) In this case, the record
of conviction shows unequivocally that Galarza could not have
been convicted under a theory affected by Senate Bill No. 1437,
and Galarza himself does not argue otherwise. The jury at
Galarza’s trial received no instructions on either the natural
and probable consequences doctrine or felony murder. Thus,
“under the instructions, the jury necessarily found [Galarza]
culpable for murder based on his own actions and mental
state,” and not based on the natural and probable consequences
doctrine. (See People v. Soto (2020) 51 Cal.App.5th 1043, 1055.)
Because the record of conviction showed as a matter of law that

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Galarza is ineligible for resentencing, the trial court did not err
by denying his petition. (See Verdugo, supra, at p. 329.)
2. Any error in making factual findings was
harmless
Galarza contends that the trial court erred by relying on
factual findings it drew from the record as a basis for denying
his petition. We need not decide whether the trial court engaged
in any improper fact-finding because any error was harmless.
Where, as here, the record of conviction shows as a matter of
law that the defendant is ineligible, an error by the trial court
at the prima facie stage is harmless. (See People v. Cooper
(2020) 54 Cal.App.5th 106, 123, review granted Nov. 10, 2020,
S264684; People v. Daniel (2020) 57 Cal.App.5th 666, 675–676,
review granted Feb. 24, 2021, S266336.) The jury in Galarza’s
case did not receive instructions on either natural and probable
consequences nor felony murder, but was instructed on
premeditated first degree murder and direct aiding and abetting.
It is not merely the case that, as Galarza alleges, “the jury could
have convicted [him] on a still valid legal theory.” (Italics added
and capitalization omitted.) Instead, as a matter of law the jury
did convict him on a still valid theory. This required denying
his petition for failure to make a prima facie showing. The trial
court’s explanation of its reasoning for doing so is immaterial.
3. Section 1170.95 does not apply to
attempted murder convictions
In addition to petitioning for resentencing on his murder
conviction, Galarza also petitioned for resentencing on his
conviction for attempted murder. He contends that Senate Bill
No. 1437 allows for resentencing on convictions of attempted

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murder as well as murder, and that the trial court erred by
denying his petition as to his attempted murder conviction.
We disagree.
Courts have divided on the question of whether Senate
Bill No. 1437, by amending section 188, prospectively abolished
the natural and probable consequences doctrine in cases of
attempted murder. (Compare People v. Medrano (2019) 42
Cal.App.5th 1001, 1012–1016, review granted Mar. 11, 2020,
S259948 (Medrano) [natural and probable consequences doctrine
abolished in cases of attempted murder] with People v. Lopez
(2019) 38 Cal.App.5th 1087, 1103–1107, review granted Nov. 13,
2019, S258175 [Senate Bill No. 1437 does not apply to attempted
murder].) But we are aware of no case holding that a defendant
is eligible for resentencing on an attempted murder conviction
under section 1170.95. This is because the text of section 1170.95
explicitly limits its application to cases of murder. The statute
provides that “[a] person convicted of felony murder or murder
under a natural and probable consequences theory may file a
petition with the court.” (§ 1170.95, subd. (a), italics added.)
One of the eligibility criteria is that “[t]he petitioner was
convicted of first degree or second degree murder following
a trial or accepted a plea offer in lieu of a trial at which the
petitioner could be convicted for first degree or second degree
murder.” (§ 1170.95, subd. (a)(2), italics added.) Nothing in the
statute suggests that a defendant convicted of attempted murder
is eligible for relief.
In his reply brief, Galarza claims that the court in Medrano
held that “attempted murder is included under section 1170.95,”
and notes that the Los Angeles County District Attorney has
published a document agreeing with this assessment. (See

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District Attorney Special Directive 20-14, at p. 6, available
at https://da.lacounty.gov/sites/default/files/pdf/SPECIAL-
DIRECTIVE-20-14.pdf.) Galarza has misstated the court’s
holding in Medrano. In that case, the court held that “the
relief provided in section 1170.95 is limited to certain murder
convictions and excludes all other convictions, including
a conviction for attempted murder.” (Medrano, supra, 42
Cal.App.5th at p. 1018, italics added, review granted Mar. 11,
2020, S259948.) We disagree with this interpretation by the
District Attorney.
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.

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