People v. Galafate CA5

Filed 6/8/23 P. v. Galafate CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F085550 Plaintiff and Respondent, (Kern Super. Ct. No. SC036346A) v.

ROMAN GALAFATE III, OPINION Defendant and Appellant.

THE COURT * APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge. Heather E. Shallenberger, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Levy, J. and Poochigian, J.

In 1989, appellant and defendant Roman Galafate III (appellant) and his then-wife, codefendant Leny Petersen Galafate, were convicted after a joint jury trial of count 1, first degree premeditated murder, with the special circumstance that the murder was intentional and carried out for financial gain; and count 2, conspiracy to commit murder for financial gain. They were both sentenced to life in prison without the possibility of parole for count 1, with a stayed term of 25 years to life for count 2. In 1991, this court affirmed their convictions and sentences on direct appeal. (People v. Galafate, et al. (Apr. 8, 1991, F012067) [nonpub. opn.]; People v. Galafate (June 9, 2022, F081564) [nonpub. opn.].) In 2019, appellant filed his first petition for resentencing under former Penal Code section 1170.95.1 The superior court appointed counsel and received briefing and denied the petition for failing to state a prima facie case for relief. On appeal, appellant’s attorney filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. On June 9, 2022, this court filed the nonpublished opinion where we conducted an independent review of the record and affirmed the trial court’s denial of appellant’s petition. (People v. Galafate, supra, F081564.) On January 14, 2022, while the appeal from the denial of his first petition was pending, appellant filed a second petition for resentencing pursuant to section 1172.6. The prosecution filed opposition, supported by this court’s recently filed opinion that affirmed the denial of his first petition. The superior court appointed counsel, conducted a hearing, and denied appellant’s second petition, finding he failed to state a prima facie case for resentencing.