People v. Gallardo CA2/7

Filed 2/14/22 P. v. Gallardo CA2/7 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B308954

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA091171) v.

CARLOS GALLARDO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Lee W. Tsao, Judge. Reversed and remanded with directions. Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Matthew Rodriguez, Acting Attorney General, Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri, Michael Katz and William H. Shin, Deputy Attorneys General for Plaintiff and Respondent. _________________

In 2009 Carlos Gallardo pleaded guilty to attempted murder (Pen. Code, §§ 187, subd. (a), 664)1 and voluntary manslaughter (§ 192, subd. (a)), and he admitted the gang enhancement allegations (§186.22, subd. (b)(1)(C)) were true. The trial court sentenced him to an aggregate state prison term of 26 years eight months. On June 5, 2019 Gallardo, representing himself, filed a form petition for resentencing and supporting declaration seeking to vacate his attempted murder and voluntary manslaughter convictions and be resentenced in accordance with recent statutory changes relating to accomplice liability for murder. In his petition, Gallardo declared he “pled guilty or no contest to 1st or 2nd degree murder in lieu of going to trial because [he] believed [he] could have been convicted of 1st or 2nd degree murder at trial pursuant to the felony murder rule or the natural and probable consequences doctrine,” and he “could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019.” The superior court appointed counsel for Gallardo. The People filed an opposition, and counsel for Gallardo filed a reply. The court denied the petition on the basis Gallardo was ineligible for resentencing as a matter of law because section 1170.95 did not provide relief from convictions for attempted murder and voluntary manslaughter. We affirmed. On December 22, 2021 the Supreme Court granted review and transferred the case to us with directions to vacate our decision and reconsider Gallardo’s appeal in light of amendments to section 1170.95 by Senate Bill No. 775 (2021-2022 Reg. Sess.)