People v. Gallow CA2/1

Filed 1/31/23 P. v. Gallow CA2/1 Opinion following transfer from Supreme Courty NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B300252

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA091853) v.

WHITNEY GALLOW,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Laura F. Priver, Judge. Reversed. John Lanahan, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill, Amanda V. Lopez and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.

Whitney Gallow appeals the trial court’s denial of his petition for relief under Penal Code 1 section 1172.6 (former section 1170.95).2 We previously affirmed the court’s order in an unpublished opinion. (People v. Gallow (Aug. 26, 2021, B300252) (Gallow II).) Our Supreme Court granted review and transferred this case back to us with directions to vacate our decision and to reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong). We have vacated our decision, received supplemental briefing, reconsidered the cause, and now reverse the trial court’s order with directions to conduct an evidentiary hearing under section 1172.6.

FACTUAL AND PROCEDURAL BACKGROUND In 1994, a jury convicted Gallow of two counts of murder (§ 187, subd. (a)), one count of attempted murder (§§ 187, 664), and one count of robbery (§ 211). The jury found true felony-murder (§ 190.2, subd. (a)(17)) and multiple murder (§ 190.2, subd. (a)(3)) special circumstance allegations as to both counts of murder, and found that Gallow personally used a handgun in the commission of the murders (§ 12022.5, subd. (a)). The jury rejected an allegation that Gallow personally inflicted great bodily injury in the commission of the attempted murder (§ 12022.7, subd. (a)). The trial court sentenced Gallow to two consecutive terms of life in prison without the possibility of