People v. Galarza CA4/3 ( 2023 )

Filed 1/19/23 P. v. Galarza CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
G061333
Plaintiff and Respondent,
(Super. Ct. No. 08CF0137)
v.
OPINION
DAMIEN LEONARD GALARZA,
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Gary S. Paer, Judge. Affirmed.
Damien Leonard Galarza, in pro. per.; and Russell S. Babcock, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *
In 2012, a jury convicted Damien Leonard Galarza of first degree murder
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(Pen. Code, § 187, subd. (a)) and street terrorism (§ 186.22, subd. (a)). The jury found
true two special circumstance allegations: lying in wait (§ 190.2, subd. (a)(15)) and
murder committed to further the activities of a criminal street gang (§ 190.2,
subd. (a)(22)). The jury also found true that the murder was committed for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1)), and that Galarza had vicariously
discharged a firearm as a gang member which caused a death (§ 12022.53, subds. (d)
& (e)(1)). The trial court sentenced Galarza to life in prison without the possibility of
parole for the murder conviction, and concurrent terms for the street terrorism charge and
the enhancements.
In 2021, Galarza filed a propria persona petition for resentencing pursuant
to section 1170.95. The People filed a written response to the petition. The alternate
defender appointed to represent Galarza filed a “Brief in Support of Petition for
Re-Sentencing.” After entertaining argument from both sides, the trial court denied the
petition on April 26, 2022. Galarza filed a timely notice of appeal from that ruling.
We appointed counsel to represent Galarza on appeal. After conducting his
analysis of potential appellate issues, counsel informed us in his declaration that he
reviewed the appellate record and consulted with a staff attorney at Appellate Defenders,
Inc., who also reviewed the record. Counsel then filed a brief pursuant to the procedures
set forth in People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967)
386 U.S. 738, suggesting that he was unable to find an issue to argue on Galarza’s behalf.
While not arguing against his client, counsel set forth the facts of the case and asked this
court to conduct its own independent review of the appellate record, which we have done.
Counsel also advised Galarza of his right to file a written argument on his own behalf
which he did on November 9, 2022.
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All statutory references are to the Penal Code.
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FACTS
A detailed recitation of the facts is set forth in our unpublished opinion
which affirmed Galarza’s convictions. (People v. Galarza (Oct. 15, 2013, G046827)
[nonpub. opn.].) In light of the narrow issue raised by this appeal, we summarize those
facts only briefly.
On January 3, 2008, Juan Orejel (Juan) was shot and killed in Santa Ana.
Prior to his death, Juan had been with members of a local tagging crew that operated in
the general area in which he was killed. Moments before Juan was shot, a vehicle
approached him and his companions with its headlights off. Three people jumped out of
the vehicle. One of them shot Juan.
The prosecution presented evidence at trial that the shooting was gang
related. Galarza admitted during a police interrogation that he was one of the individuals
who arrived at the scene in the blacked-out car, but he denied he was the shooter. He said
much the same thing during his trial testimony.
DISCUSSION
Effective January 1, 2019, the Legislature enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.) (Senate Bill 1437), which eliminated the theory of natural and
probable consequences liability for murder, and limited the scope of the felony murder
rule. (People v. Lewis (2021) 11 Cal.5th 952 (Lewis).)
As relevant here, Senate Bill 1437 accomplished its goals by adding the
following language to section 189, subdivision (e): “A participant in the perpetration or
attempted perpetration of [qualifying felonies] in which a death occurs is liable for
murder only if one of the following is proven: [¶] (1) The person was the actual killer.
[¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person was a major participant in
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the underlying felony and acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.”
Senate Bill 1437 also added section 188, subdivision (a)(3): “Except [for
felony murder liability] as stated in subdivision (e) of Section 189, in order to be
convicted of murder, a principal in a crime shall act with malice aforethought. Malice
shall not be imputed to a person based solely on his or her participation in a crime.”
At the same time, the Legislature added section 1170.95 (later renumbered
§ 1172.6), which created a process for those convicted of felony murder or murder under
a natural and probable consequences theory to seek resentencing or to have the
conviction vacated if their conduct did not constitute murder under the redefinition of that
crime provided by Senate Bill 1437. (Lewis, supra, 11 Cal.5th at p. 959.)
The first step for a prisoner seeking resentencing pursuant to section 1172.6
is to file a facially adequate petition which establishes a prima facie basis for relief. A
prima facie showing is not made if the record of conviction available to the trial court
establishes as a matter of law that the petitioner is ineligible for resentencing. That was
the case here. The trial court denied Galarza’s petition after concluding he had not made,
and could not make, the required prima facie showing. The court indicated it “spent a lot
of time looking at the [trial] arguments and [trial] transcripts,” and as a result concluded
“for the jury to come back with true special circumstance findings they had to find
beyond a reasonable doubt that the defendant had the intent to kill.” In his brief, Galarza
concedes this finding.
We have conducted a similar analysis and reached the same conclusion. A
petitioner is ineligible for resentencing if he or she acted with the intent to kill. (People
v. Lopez (2022) 78 Cal.App.5th 1, 14). The jury’s true finding on the lying in wait
special circumstance established that jurors unanimously agreed Galarza acted with the
intent to kill, thus disqualifying him as a matter of law from the statutory relief he seeks.
(Ibid.)
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We have examined the entire record in this case and, like counsel, have not
found any other viable issue for him to argue on appeal. Generally speaking, “an
arguable issue on appeal consists of two elements. First, the issue must be one which, in
counsel’s professional opinion, is meritorious. That is not to say that the contention must
necessarily achieve success. Rather, it must have a reasonable potential for success.
Second, if successful, the issue must be such that, if resolved favorable to the appellant,
the result will either be a reversal or a modification of the judgment.” (People v. Johnson
(1981) 123 Cal.App.3d 106, 109.) No such issue presents itself in this record.
DISPOSITION
The postjudgment order is affirmed.
GOETHALS, ACTING P. J.
WE CONCUR:
MOTOIKE, J.
DELANEY, J.
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