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People v. Galvan

California Court of Appeals, Sixth District
Jun 25, 2024
No. H051207 (Cal. Ct. App. Jun. 25, 2024)

Opinion

H051207

06-25-2024

THE PEOPLE, Plaintiff and Respondent, v. RONALDO GALVAN, Defendant and Appellant.


NOT TO BE PUBLISHED

Monterey County Super. Ct. No. SS170470A

The Court

Before Greenwood, P. J., Bamattre-Manoukian, J., and Wilson, J.

Ronaldo Galvan appeals from an order denying his petition for resentencing pursuant to Penal Code section 1172.6, under which a person convicted of felony murder or murder under the natural and probable consequences doctrine may seek to have their conviction vacated in specified circumstances. Counsel filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), and Galvan subsequently filed a supplemental brief on his own behalf. For the reasons set forth below, we affirm the order.

All statutory references are to the Penal Code.

I. Factual and Procedural Background

The underlying facts are not relevant to the issue raised on appeal.

In 2019, Galvan pled no contest to one count of attempted murder (§§ 664, 187, subd. (a), count 1), two counts of assault with a semi-automatic firearm (§ 245, subd. (b), counts 4 and 6), one count of street gang activity (§ 186.22, subd. (a), count 9), and two counts of carrying a loaded firearm in public (§ 25850, subds. (a), (c)(3), counts 10 and 11). Galvan admitted an enhancement as to count 1 based on allegations that the offense was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).) Galvan indicated, and the trial court found, that the preliminary hearing transcript provided the factual basis for his plea. Pursuant to the terms of Galvan's plea agreement, the trial court sentenced him to a determinate term of 25 years, dismissing the remaining counts and enhancements.

In 2022, Galvan filed a petition pursuant to section 1172.6, stating that: 1) the complaint or information filed against him allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine, or another theory by which malice was imputed to Galvan based solely on his participation in a crime; 2) he accepted a plea offer in lieu of a trial at which he could have been convicted of attempted murder; and, 3) he could not presently be convicted of attempted murder due to changes made to sections 188 and 189, effective January 1, 2019. The court appointed counsel and set a hearing to determine if Galvan made the required prima facie showing. (§ 1172.6, subd. (c).)

"Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (20172018 Reg. Sess.) 'to amend the felony murder rule and the natural and probable consequences doctrine . . . 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).)" (People v. Porter (2022) 73 Cal.App.5th 644, 649.) This resulted in amendments to sections 188 and 189. Senate Bill No. 775 (2021-2022 Reg. Sess.; Stats. 2021, ch. 551) clarified that the relief afforded by these amendments is available to people convicted of attempted murder under a theory of felony murder or the natural and probable consequences, by making additional amendments to what is now section 1172.6. (Porter, at pp. 651-652.)

The prosecution opposed the petition, arguing that Galvan failed to make the showing required by section 1172.6, subdivision (a)(3), that he could not be presently convicted of attempted murder due to changes in sections 188 and 189, as the "record of conviction revealed [Galvan] acted as a principal that harbored express malice," rendering his attempted murder conviction "undisturbed by the amended version of [section] 188." In support of this position, the prosecution cited to evidence from the preliminary hearing transcript showing that Galvan and the actual shooter were both affiliated with a criminal street gang, Galvan drove two armed shooters to the location of rival gang members, and he waited for them while they "ambushed the victims with gunfire," leaving only once the gunfire ceased and the shooters re-entered his vehicle. The prosecution contended that these facts taken together demonstrated that Galvan aided and abetted the shooting, while the "mechanics of the shooting, which involved over two dozen rounds fired by two shooters, inform[ed] the conclusion that [Galvan] acted with express malice. [Citation.]"

Galvan argued that the preliminary hearing transcript did not "definitely reveal that Galvan's intent was anything more than allowing his passengers to scare or injure the rivals." Rather, he "may have only intended to participate in an assault with a deadly weapon . . . and/or a shooting from a vehicle ...." Galvan asked the trial court to issue an order to show cause based on his facially sufficient petition and hold an evidentiary hearing to determine the availability of relief under section 1172.6. The trial court agreed that Galvan made a prima facie showing, and issued the order to show cause for an evidentiary hearing.

Prior to the hearing, the prosecution submitted a motion under section 1172.6, subdivision (d)(3), identifying the admissible portions of the preliminary hearing transcript it wanted the trial court to consider in ruling on Galvan's resentencing petition, including stipulations made by the parties and the testimony of five law enforcement officers. Galvan filed written objections to certain portions of the transcript identified by the prosecution, and the prosecution filed a written reply. The court held a multi-day evidentiary hearing, at which it heard live testimony from several witnesses, in addition to considering portions of the preliminary hearing transcript.

During the evidentiary hearing, the trial court sustained Galvan's objection to a portion of one of the officer's testimony, but otherwise overruled his remaining objections and considered the evidence and stipulations from the preliminary hearing transcript as identified by the prosecution in its pre-hearing motion. Four of the officers who testified during the preliminary hearing described their response to or investigation of the events that lead to Galvan's conviction. The fifth, who the parties stipulated was an expert in the investigation of gang-related crimes and could opine whether a person was an active gang member and/or committed a crime in association with or for the benefit of a criminal street gang, stated his conclusion that Galvan actively participated in a gang as an associate of the Nortenos, and committed a crime for the benefit of the gang.

At the evidentiary hearing, the court heard live testimony from two witnesses to the underlying events: an off-duty police officer who was driving past the scene when the events took place, and a person who associated with the Nortenos and was involved in planning meetings with Galvan related to the shootings, which the witness testified were done in retaliation for the shooting of one of his friends by a rival gang.

The trial court confirmed that the prosecution had the burden of proving beyond a reasonable doubt that Galvan was guilty of attempted murder under the law as amended in sections 188 and 189. It found that "the evidence in the record demonstrated beyond a reasonable doubt Mr. Galvan with the intent to kill aided, abetted, counselled or requested or assisted the actual shooters in the commission of the crime of attempted murder among other felony offenses...." The court inferred, "based on the evaluation and analysis of the evidence in the record, including the weighing of evidence credibility" that the intent of the involved parties was to shoot and kill rival gang members, and that Galvan shared in the intent of the actual shooters. The court denied Galvan's resentencing petition. Galvan timely filed a notice of appeal.

On appeal, counsel filed an opening brief pursuant to the procedure set forth in Delgadillo, supra, 14 Cal.5th at pages 231-232. We notified Galvan that he could file a supplemental brief on his own behalf, and that failure to do so would result in dismissal of the appeal as abandoned. (Id. at p. 232.) Galvan filed a supplemental brief, asking this court to "allow [his] case . . . to be re-opened," believing he made the required showing for resentencing under section "1172.6 (A)(B)(1)(2)/S.B. 775." He contends it is "clear" that he agreed to a plea deal in order to avoid "malice and biased-ness being imputed on [him] based solely on [his] participation." Galvan argues that it "seems" the court considered certain witness testimony insofar as it supported the prosecution's position, but not when it demonstrated the availability of relief under "SB 775; SB 1437; SB 483; AB 333 etc...." He intimates that the testimony demonstrated he was only the driver of the vehicle, was not a gang member, had no history of criminal behavior or a criminal record, and that there was evidence that "one's intent isn't to always commit brazen crimes" when "driving around, with or without firearms." Galvan cites to age at the time-18 years old-stating that he was "immature and mentally unaware of both forethought and consequences." He further expresses "hope" that his "background, ethnicity or environment does not allow biased-ness to occur (per SB 256)" contending there is "no [definitive] link or fact that solidifies my knowledge of, or involvement in commission of said crime."

In his petition for resentencing and related pleadings filed in the trial court, Galvan did not seek relief pursuant to Senate Bill No. 483 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 728 [invalidating certain sentence enhancements]) or Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699 [modifying the laws pertaining to enhancements based on participation in a criminal street gang]). To the extent he seeks to raise such arguments in his supplemental brief, those issues are outside the scope of this appeal, and thus do not raise an arguable issue on appeal. (See People v. Mattson (1990) 50 Cal.3d 826, 854 (Mattson); People v. Bradford (2008) 169 Cal.App.4th 843, 857 (Bradford).)

In context, we presume Galvan intended to reference Assembly Bill No. 256 (2021-2022 Reg. Sess.) (Stats. 2022, ch. 739), which amended the California Racial Justice Act of 2020 retroactively. Section 745 prohibits the state from seeking or obtaining a criminal conviction on the basis of race, ethnicity, or national origin. (§ 745, subd. (a).) Galvan did not raise this issue during the proceedings on his resentencing petition. We will thus not consider it an arguable issue in this appeal. (See fn. 5, ante.)

Having reviewed the supplemental brief, we conclude that Galvan does not raise an arguable issue on appeal. Accordingly, we affirm the trial court's order.

II. Discussion

An issue is arguable if it has a reasonable potential for success, and, if resolved favorably for the appellant, the result will either be a reversal or a modification of the judgment. (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)

Galvan's contentions that he was eligible for resentencing because he was the driver of the vehicle, not the shooter, and because he did not have a prior criminal record do not raise an arguable issue on appeal. Under sections 188 and 189 an individual who was not the actual killer can be still be convicted of first degree murder, despite the legislative changes effected by Senate Bill numbers 1437 and 775, and despite the fact the person did not have a prior criminal record. (See People v. Gentile (2020) 10 Cal.5th 830, 848 ["Senate Bill 1437 does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought."].) While Galvan generally alleges there was evidence the court did not consider or properly weigh, he does not identify any such evidence, or otherwise cite to factual or legal authority demonstrating an arguable issue in this regard.

"(1) Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature. [¶] . . . [¶] (2) Except 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).) Pursuant to section 189, subdivision (e), "[a] participant in the perpetration or attempted perpetration of a felony . . . in which a death occurs is liable for murder only if . . . [¶] . . . [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree."

As already noted, Galvan references or alludes to legislation he did not address in the trial court, such as the Racial Justice Act (see fn. 6, ante) or laws that consider a defendant's youth in sentencing (see § 1170, subd. (b)(6)(B) [trial court must order imposition of lower term of a determine sentence where defendant's youth as defined under section 1016.7, subdivision (b) was a contributing factor in the commission of the offense]). Except in limited circumstances, this court does not consider bases for relief that were not presented to the trial court at the time it issued the order being reviewed on appeal. (Mattson, supra, 50 Cal.3d at p. 854; Bradford, supra, 169 Cal.App.4th at p. 857.) Galvan has not identified any basis to except the new arguments he raises in his supplemental brief from this general rule.

In so doing, we make no comment about the viability of Galvan's arguments concerning any of the new legal bases asserted or alluded to in his brief if properly presented to the trial court.

Because Galvan raises no arguable issue in his supplemental briefs, we affirm the trial court's post-conviction order. (People v. Serrano (2012) 211 Cal.App.4th 496, 503504.)

III. Disposition

The order denying Galvan's resentencing petition is affirmed.


Summaries of

People v. Galvan

California Court of Appeals, Sixth District
Jun 25, 2024
No. H051207 (Cal. Ct. App. Jun. 25, 2024)
Case details for

People v. Galvan

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RONALDO GALVAN, Defendant and…

Court:California Court of Appeals, Sixth District

Date published: Jun 25, 2024

Citations

No. H051207 (Cal. Ct. App. Jun. 25, 2024)