People v. Gallardo

Filed 9/23/24 CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D084179

Plaintiff and Respondent,

v. (Super. Ct. No. INF046168) JUAN LUIS GALLARDO,

Defendant and Appellant.

Appeal from an order of the Superior Court of Riverside County, John D. Molloy, Judge. Reversed and remanded with directions. James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Seth Friedman, and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent. INTRODUCTION Juan Luis Gallardo appeals the trial court’s order denying his petition to vacate his conviction for attempted murder and be resentenced pursuant to

Penal Code section 1172.6. 1 He contends the trial court failed to conduct its

1 Further unspecified statutory references are to the Penal Code.

own assessment of whether he is eligible for relief under section 1172.6 because the record does not indicate the court reviewed the record of conviction in rendering its decision. The Attorney General urges us to conclude that any procedural error in the trial court’s review of Gallardo’s claim for relief is harmless because the jury instructions and verdict forms from Gallardo’s trial—records the trial court did not review—demonstrate he is precluded from relief as a matter of law. On the record before us, we conclude the trial court failed to adequately conduct the inquiry mandated by section 1172.6, subdivision (c). The goal of the vacatur and resentencing procedure in section 1172.6 is to ensure a person’s sentence is commensurate with their criminal culpability; this goal may not be accomplished without the trial court’s review of the record of conviction to determine a petitioner’s eligibility for relief. Without such a review, the trial court’s determination of the petitioner’s prima facie claim for relief is reduced to a perfunctory exercise. The burden is then placed on the appellate courts to review the trial court’s order for harmless error, which would, in this case, require us to review volumes of transcripts in the first instance. Section 1172.6 does not contemplate the appellate courts performing such a function, nor are the reviewing courts equipped to do so. Accordingly, we shall reverse the order denying Gallardo’s petition with directions to the trial court to conduct the requisite proceeding under section 1172.6, subdivision (c). FACTUAL AND PROCEDURAL BACKGROUND In 2009, a jury convicted Gallardo of “two counts of robbery [(§ 211; counts 1 & 2)], one count of attempted willful, deliberate and premeditated murder (§§ 664/187, subd. (a); count 3), two counts of assault with a firearm (§ 245, subd. (a)(2); counts 6 & 7), one count of discharging a firearm at an