Opinion
B336458
08-12-2024
THE PEOPLE, Plaintiff and Respondent, v. GENNADIY GALAYAN, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA371650-01, Craig Richman, Judge. Reversed.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
STRATTON, P. J.
Pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), we review an order denying appellant's petition for resentencing brought under Penal Code section 1172.6. We reverse and remand for a prima facie hearing where the trial court makes a record of the basis of its ruling.
Statutory references are to the Penal Code.
BACKGROUND
On April 9, 2014, a jury convicted appellant Gennadiy Galayan of one count of attempted murder, four counts of assault with a semiautomatic firearm, three counts of false imprisonment of a hostage, two counts of dissuading a witness, and one count of corporal injury to a spouse. The jury found true an allegation that Galayan personally and intentionally discharged a firearm causing great bodily injury within the meaning of section 12022.53, subdivision (d). The trial court sentenced Galayan to 66 years, eight months in prison. On direct appeal we affirmed Galayan's convictions and reversed the judgment as to the sentence only. (People v. Galayan (May 19, 2016, B258290) [nonpub. opn.].)
Only to provide context, we recite the facts underlying the attempted murder conviction from our prior opinion. On May 20, 2010 Galayan went to the apartment building where his son and divorced spouse resided. He had a semi-automatic weapon with him. He entered the secure building and waited outside what he thought was his former wife's apartment. His former wife walked into the hallway carrying grocery bags when she encountered Galayan. Seeing his gun, she dropped her bags and screamed for help. He pushed her to the ground, began to kick her, and threatened to shoot her if she did not stop screaming. In the meantime, three other individuals arrived in response to the screaming. Galayan pointed the gun at them and threatened to shoot them. The police also arrived and, at that point, Galayan began shooting. He shot his former wife in the back as she tried to crawl away. She suffered multiple bullet wounds requiring two surgeries to remove two bullets lodged in her chest. Two of the responding individuals were also injured by bullets, one by bullets fired by the responding police officers. (People v. Galayan, supra, B258290.)
On April 29, 2022, Galayan filed a petition for resentencing as to the attempted murder conviction. The trial court appointed counsel for Galayan. On June 28, 2022, the People opposed the petition, contending Galayan was ineligible for relief as a matter of law because he was the actual shooter. On November 21, 2023, the trial court held a hearing to determine whether Galayan had made a prima facie case for relief. Counsel for Galayan orally conceded that a prima facie case had not been made. That was the People's position as well. The trial court denied the petition on that ground. This appeal followed.
On June 7, 2024, we appointed counsel to represent Galayan on appeal. On June 10, 2024, counsel filed a no-issue brief pursuant to People v. Delgadillo. Counsel advised us he had told appellant he may file his own supplemental brief. Counsel sent Galayan transcripts of the record on appeal as well as a copy of the brief.
On June 10, 2024, this court sent Galayan notice that a brief raising no issues had been filed on his behalf. We advised him he had 30 days within which to submit a supplemental brief or letter stating any issues he believes we should consider. We also advised him that if he did not file a supplemental brief, the appeal may be dismissed as abandoned.
On July 11, 2024, Galayan filed a supplemental brief, in which he contends: 1) section 1172.6 does not preclude eligibility for relief because a petitioner is "the sole and actual perpetrator of an attempted murder"; 2) he suffered an illegal 10-year enhancement under the natural and probable consequences doctrine because the police negligently shot one of the residents when they responded to the scene; 3) he had a federally-protected due process right to be present at the 1172.6 prima facie hearing; and 4) he must have been tried under the natural and probable consequences doctrine because the trial court ordered restitution for the medical expenses of one of the responding individuals and he was given a 10-year enhancement for the police shooting of another responding individual.
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) eliminated the natural and probable consequences doctrine as a basis for liability for attempted murder. (People v. Lewis (2021) 11 Cal.5th 952, 957) (Lewis).) Petitions for resentencing carry out the intent of Senate Bill No. 1437, which was "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." (Stats. 2018, ch. 1015, § 1, subd. (f); Lewis, at p. 967.) Petitions under section 1172.6 address convictions where a defendant was not the shooter, but was held vicariously liable on one of several theories of liability identified in the statute.
Lewis also held that "petitioners who file a complying petition are to receive counsel upon the filing of a compliant petition." (Lewis, supra, 11 Cal.5th at p. 963.) If the record establishes ineligibility for resentencing as a matter of law, the petition has been properly denied. (Id. at pp. 970-972.) However, the petition and record must establish "conclusively that the defendant is ineligible for relief." (People v. Lopez (2022) 78 Cal.App.5th 1, 14 [a "petitioner is ineligible for resentencing as a matter of law if the record of conviction conclusively establishes, with no factfinding, weighing of evidence, or credibility determinations, that . . . the petitioner was the actual killer."].) (Ibid.) When a trial court denies a section 1172.6 petition based on the failure to make a prima facie case for relief, our review is de novo. (Ibid.)
After appointment of counsel, the trial court assesses when a prima facie case for relief has been made. The prima facie inquiry is limited. (Lewis, supra, 11 Cal.5th at p. 971.) In assessing whether a defendant has made a prima facie case for relief pursuant to section 1172.6, the trial court is entitled to review the record of conviction, which includes the jury summations, jury instructions, verdict forms, and prior appellate opinions. (Lewis, at pp. 971-972.) However, Lewis cautioned that although appellate opinions are generally considered to be part of the record of conviction, the prima facie bar was intentionally set very low. The probative value of an appellate opinion is case-specific; a trial court should not engage in" 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972.)
Galayan averred in his petition that he was found guilty of attempted murder under the natural and probable consequences doctrine, making him eligible for resentencing relief. At the prima facie hearing, Galayan's counsel conceded that a prima facie case had not been made. The trial court then simply accepted the position of both counsel that Galayan was ineligible for relief because no prima facie case had been made. It denied the petition as a matter of law.
If we could consider the summary of facts in our prior appellate opinion, we would find that Galayan, as the lone actual shooter, is ineligible for relief as a matter of law. But under Lewis, we cannot find facts at the prima facie stage where, as here, petitioner Galayan has filed a facially sufficient petition. (§ 1172.6, subd. (d)(3) [the admissible portion of an appellate decision is limited to the procedural history of the case]; People v. Flores (2022) 76 Cal.App.5th 974, 988, fn. 9 [the limitation of section 1172.6, subdivision (d)(3) applies at the prima facie stage].)
To the extent Galayan challenges the 10-year enhancement and restitution order as a consequence of the natural and probable consequence doctrine, his contentions fail. A petition for resentencing under section 1172.6 is not a vehicle to raise unrelated claims of error allegedly committed by the trial court. This would include error committed in ordering restitution and imposing the ten-year deadly weapon enhancement. (People v. Farfan (2021) 71 Cal.App.5th 942, 947 [the mere filing of a section 1172.6 petition does not afford the petitioner a new opportunity to raise claims of trial error or attack the sufficiency of the evidence supporting the jury's findings]; People v. Allison (2020) 55 Cal.App.5th 449, 461 [a petition for resentencing does not provide a do-over on factual disputes that have already been resolved], disapproved on another ground in People v. Strong (2022) 13 Cal.5th 698, 718, fn. 3.)
Nevertheless, we have no idea on what basis the trial court denied the petition. The People contended Galayan was prosecuted as the actual shooter and not under the natural and probable consequences doctrine. The People provided no evidentiary basis for this contention except the prior appellate opinion. Indeed, the record is devoid of any evidence whatsoever. It appears to us that the People and both counsel simply looked at and relied on the facts found by the jury as set out in our prior opinion affirming Galayan's convictions. This is improper at the prima facie stage of the proceedings. (People v. Curiel (2023) 15 Cal.5th 433, 463 ["At the prima facie stage, a court must accept as true a petitioner's allegation that he or she could not currently be convicted of a homicide offense because of changes to section 188 or 189 made effective January 1, 2019 unless the allegation is refuted by the record. [Citation.] And this allegation is not refuted by the record unless the record conclusively establishes every element of the offense."].)
We have no evidence before us as to how the jury arrived at its decision, to wit, how it was instructed as a matter of law. That the jury found true firearms enhancements is not a sufficient basis upon which to deny a petition for resentencing. (People v. Offley (2020) 48 Cal.App.5th 588, 598.) While it appears that the record of conviction may likely support a denial of the petition, on the record before us we cannot accept defense counsel's concessions that a prima facie case was not made. We note a different trial judge ordered an electronic version of the trial proceedings, but there is no indication in the record that the trial judge adjudicating the petition actually reviewed and considered the jury instructions, verdict forms, or other documents that may have supported denial as a matter of law. On this record, we must reverse and order a new prima facie hearing. If the trial court again denies the petition because it finds petitioner ineligible as a matter of law, we direct the trial court to set out its conclusions of law for future appellate review.
DISPOSITION
The order denying the petition for resentencing is reversed and the petition is remanded for a new prima facie hearing. Appellant is ordered to be present at the hearing unless he waives his presence.
I concur: WILEY, J.
GRIMES, J., Dissenting.
I respectfully dissent from the majority opinion. I would affirm the order.