People v. Gallegos CA2/6

Filed 12/16/20 P. v. Gallegos CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B303623 (Super. Ct. No. 2019017979) Plaintiff and Respondent, (Ventura County)

v.

JUAN DE DIOS GALLEGOS III,

Defendant and Appellant.

Juan de Dios Gallegos appeals his conviction, by jury, of second degree murder in the death of Michael James Holley on May 23, 2019. (Pen. Code, §§ 187, subd. (a), 189.)1 The jury further found appellant used a deadly weapon, a pickup truck, in committing the murder. (§ 12022, subd. (b)(1).) The trial court sentenced appellant to a total term in state prison of 36 years to life. He contends the trial court violated his right to due process

All statutory references are to the Penal Code unless 1

otherwise stated.

and his right to present a defense when it instructed the jury, in terms of CALCRIM No. 625, that voluntary intoxication is not relevant to the question of whether he acted with conscious disregard for human life. Appellant further contends his trial counsel rendered ineffective assistance because counsel failed to request that the instruction be modified to allow the jury to consider his voluntary intoxication. We affirm. Facts Appellant was drinking with his friend Tereso Jimenez on the night of May 23, 2019. They ran out of alcohol so, at about 11 p.m., appellant drove his Dodge Ram Dakota pickup truck to an Oxnard strip mall to buy more. While there, the two men tried unsuccessfully to pick up a couple of women who were hanging out in the parking lot. Appellant went into the liquor store and purchased some alcohol. Around the same time, Michael Holley, a local transient, and Anthony Miinster, a friend of Holley’s, walked through the parking lot. The two men said hello to the women and continued walking through the lot toward Azalea Street. They crossed Azalea Street and entered an alley. The alley runs parallel to Ventura Road and Mariposa Street, between Azalea Street to the south and Fuchsia Street to the north. There, they met an acquaintance, Brandy Pinkard, who asked them for a cigarette. The trio stood talking in the alley while Holley retrieved a cigarette for Pinkard. Meanwhile, appellant returned to his pickup truck and drove out of the parking lot, exiting on to Ventura Road, heading north. After crossing Azalea Street, appellant drove another block before making a U-turn on Bevra Avenue. He then drove back down Ventura Road and turned left onto Azalea Street.