People v. Gallo CA3

Filed 2/7/23 P. v. Gallo CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE, C096376

Plaintiff and Respondent, (Super. Ct. No. 15F4647)

v.

JOHN LEE GALLO,

Defendant and Appellant.

Defendant John Lee Gallo appeals the trial court’s May 2022 denial of a recommendation made by the Secretary (Secretary) of the Department of Corrections and Rehabilitation (CDCR) pursuant to Penal Code1 section 1172.1 that the trial court consider recalling defendant’s sentence and resentencing him based on recent ameliorative changes in the sentencing law. Defendant argues the trial court improperly

1 Undesignated statutory references are to the Penal Code.

1

failed to apply section 1172.1’s presumption in favor of resentencing, and the People concede the error. We will reverse the order and remand the matter for further proceedings consistent with section 1172.1. FACTUAL AND PROCEDURAL BACKGROUND In 2016, defendant John Lee Gallo pleaded no contest to two counts of first-degree residential burglary with a person present ( §§ 459, 667.5, subd. (c)(21)) and to one count of being a felon in possession of a firearm (§ 29800, subd. (a)). Defendant also admitted to a prior strike (§ 667, subds. (b)-(i)) and a prior serious felony (§ 667, subd. (a)). Defendant stipulated to an aggregate 17-year prison term, including a five-year term for the prior serious felony, and the trial court sentenced him accordingly. We affirmed the judgment on appeal. (People v. Gallo (May 26, 2017, C082075) [nonpub. opn.].) In November 2021, the Secretary of CDCR recommended to the trial court that it recall defendant’s sentence and resentence him.2 The recommendation was based on the amendments to section 1385, which now gives the trial court the discretion to dismiss a prior serious felony enhancement in furtherance of justice. (Senate Bill No. 1393 (2017- 2018 Reg. Sess.) (Stats. 2018, ch. 1013, §§1-2).) The trial court appointed defense counsel and, in April 2022, received briefing from both parties. Defendant argued it was in the interest of justice to reduce his sentence, given that he had already served seven years of his sentence and had participated in multiple rehabilitative services in prison. The People opposed any