Opinion
B332900
03-26-2024
THE PEOPLE, Plaintiff and Respondent, v. JAYVION TERRELL GALLOWAY, Defendant and Appellant.
Jeanine G. Strong, 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NOT TO BE PUBLISHED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. YA071844, Hector Guzman, Judge. Affirmed.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
We resolve this case by memorandum opinion because it "is determined by a controlling statute which is not challenged for unconstitutionality and does not present any substantial question of interpretation or application." (Cal. Stds. Jud. Amin., § 8.1(1).) We set forth only those portions of the factual and procedural history necessary to explain our disposition.
WEINGART, J.
Defendant Jayvion Terrell Galloway appeals from the denial of his second and successive petition for resentencing pursuant to Penal Code section 1172.6. In a prior appeal decided last year, we affirmed the trial court's finding that Galloway was ineligible for relief under section 1172.6 as a matter of law. Galloway's latest petition provides no basis for revisiting our decision or reaching a different result. We accordingly affirm.
All unspecified statutory references are to the Penal Code.
A. Procedural Background
In 2011, a jury convicted Galloway among other offenses of first degree murder and found true a special circumstance that the murder was committed during a robbery. We affirmed the conviction on direct appeal. (People v. Galloway (June 8, 2012, B232165) [nonpub. opn.].)
In 2019, Galloway filed a petition for resentencing pursuant to former section 1170.95, the predecessor to section 1172.6, which the trial court denied. We affirmed, holding the trial court did not err in failing to appoint counsel for Galloway, or in finding Galloway ineligible for resentencing because he was the actual killer and thus could still now be convicted of murder despite the changes to sections 188 and 189 since his original conviction. (People v. Galloway (Oct. 28, 2020, B303405 & B303636) [nonpub. opn.] (Galloway I).) The Supreme Court granted review and in 2022, transferred the case back to this court with directions to vacate our decision in Galloway I and reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 and People v. Lewis (2021) 11 Cal.5th 952. (People v. Galloway (Nov. 16, 2022, S265969).)
The Legislature renumbered the statute as section 1172.6, with no change in text, effective June 30, 2022 (Stats. 2022, ch. 58, § 10). For ease of reference, we use the current citation at section 1172.6 throughout this opinion.
After doing so, we again affirmed the trial court's denial of resentencing relief, concluding that the record of conviction established as a matter of law that Galloway was the actual killer and therefore ineligible for relief. We further found the trial court's failure to appoint counsel erroneous under People v. Lewis, supra, 11 Cal.5th 952, but the error harmless because "[t]he record of conviction, which we consult only to the extent permissible under Lewis, shows unequivocally that Galloway was the actual killer. He therefore remains ineligible for resentencing as a matter of law." (People v. Galloway (Mar. 2, 2023, B303405 & B303636) [nonpub. opn.] (Galloway II).)
After this affirmance, Galloway filed a second and successive petition for resentencing in July 2023. The trial court summarily denied the petition, and Galloway appealed. Galloway's appointed appellate counsel filed a brief raising no issues and requesting that we exercise our discretion to independently review the record for error pursuant to People v. Delgadillo (2022) 14 Cal.5th 216. In Delgadillo, our Supreme Court established procedures for cases in which counsel determines that an appeal from an order denying postconviction relief lacks merit. In such cases, "(1) counsel should file a brief informing the court of that determination, including a concise recitation of the facts bearing on the denial of the petition; and (2) the court should send, with a copy of counsel's brief, notice to the defendant, informing the defendant of the right to file a supplemental letter or brief and that if no letter or brief is filed within 30 days, the court may dismiss the matter." (Id. at pp. 231-232.) Because a defendant who has been denied postconviction relief has no constitutional right to an appeal, we are not required to conduct an independent review of the record before dismissing the appeal, but we may conduct such a review at our discretion. (Id. at pp. 227-228, 232.)
If the defendant does file a supplemental brief or letter, we are "required to evaluate the specific arguments presented in that brief and to issue a written opinion. The filing of a supplemental brief or letter does not compel an independent review of the entire record to identify unraised issues." (People v. Delgadillo, supra, 14 Cal.5th at p. 232.)
On February 8, 2024, we notified Galloway by letter of the no-merits brief filed by his counsel and informed him that he had 30 days to file a supplemental brief. We received Galloway's supplemental brief on March 5, 2024. We therefore turn to addressing the arguments made in that supplemental brief.
In a declaration submitted with her brief, Galloway's counsel averred that she sent Galloway a copy of counsel's brief along with a copy of the entire record on appeal.
B. Galloway Remains Ineligible for Relief Under Section 1172.6
Section 1172.6 was enacted by the Legislature in 2018 as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.). The legislation's overall purpose was "to amend 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." (Stats. 2018, ch. 1015, § 1, subd. (f).) To accomplish this, the bill added section 189, subdivision (e) "to amend the felony-murder rule," and added section 188, subdivision (a)(3) "to amend the natural and probable consequences doctrine." (People v. Gentile (2020) 10 Cal.5th 830, 842-843.) Senate Bill No. 775 (2021-2022 Reg. Sess.) made further amendments to the resentencing statute, effective January 1, 2022. (Stats. 2021, ch. 551, § 2.)
We previously determined in 2023 that Galloway was ineligible for relief under section 1172.6 because "the record of conviction shows unequivocally that Galloway was convicted of murder for actually killing [the victim.]" (Galloway II, supra, B303405 & B303636.) There has been no intervening amendment to section 1172.6 since the time of our 2023 decision, and no change to the record of conviction. As the record of conviction continues to demonstrate Galloway is ineligible for relief, we reject the arguments in his successive petition to the contrary. Finally, we decline counsel's request that we independently review the record, as nothing before us suggests such an exercise is necessary. (People v. Delgadillo, supra, 14 Cal.5th at p. 232.)
DISPOSITION
The order denying Galloway's petition for resentencing is affirmed.
We concur: ROTHSCHILD, P.J., CHANEY, J.