People v. Wallace CA2/6 ( 2021 )

Filed 10/25/21 P. v. Wallace CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B305348
(Super. Ct. No. 1362689)
Plaintiff and Respondent, (Santa Barbara County)
v.
GREGORY MARSHALL
WALLACE,
Defendant and Appellant.
Gregory Marshall Wallace appeals from a postjudgment
order denying his petition for resentencing under Penal Code1
section 1170.95. Wallace contends the court erred in summarily
denying his petition without appointing counsel and providing
counsel the opportunity to file a reply brief in response to the
prosecution’s opposition to the petition. We agree that the court
erred in failing to appoint counsel (People v. Lewis (2021) 11
All statutory references are to the Penal Code unless
1
otherwise noted.
Cal.5th 952 (Lewis)), but conclude the error was harmless
because the record of Wallace’s conviction demonstrates he is
ineligible for relief under section 1170.95 as a matter of law.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY2
In January 2010,3 appellants [Wallace, Roberto Castaneda,
and Christopher Jaime] were members of Lompoc’s Westside
VLP (VLP), a Sureño gang with allegiance to the Mexican Mafia.
VLP paid a portion of its revenue as a “tax” to the Mexican Mafia.
If the tax was not paid, the Mexican Mafia would target VLP
members for assault or death.
Wallace was a high-ranking VLP member authorized to
collect “taxes” for the gang. On January 10, Wallace was released
from prison and began staying at his girlfriend Sonia Silva’s
apartment in Lompoc. He met that same day with VLP member
Joshua Lemen and VLP associates Danny Sanchez and Phillip
Hurt. Wallace said he wanted to “tax” non-gang members who
were selling drugs in VLP’s territory. Lemen and Sanchez gave
Wallace the names of six local drug dealers and told some of the
dealers they had to pay a tax to VLP.
On January 14, Wallace asked Lemen and Sanchez to
identify “younger homeys out there that were putting in a lot of
work” for VLP. Wallace met with Lemen, Sanchez, Castaneda,
Jaime, and VLP members Sergio Melgoza, Osvaldo Monroy, Ray
2The relevant facts are recited verbatim from our 2018
opinion affirming the judgment against Wallace. (People v.
Castaneda (July 26, 2018, B249571) [nonpub. opn.].)
3 All unspecified date references are to the year 2010.
2
Cardoza, and Francisco Vargas.4 Wallace said Lemen and
Sanchez would sell drugs and that the others would act as a
“gunning crew” and “really push up on the people [who] were
selling drugs and force them to pay taxes.”
Isidro “Pollo” Madera was a methamphetamine dealer who
lived in Lompoc with his girlfriend Chastity Turner and her
daughter. Madera often sold drugs in the alley near Wallace and
Silva’s apartment. During the week prior to Madera’s murder on
January 20, Castaneda and Cardoza went to his apartment
several times seeking payment of the “tax.” Madera either
refused to pay or had Turner or her daughter say he was not
home.
Juan Carlos Astorga lived in an apartment across the alley
from Wallace and Silva. Astorga had allowed Madera to sell
drugs out of his apartment. A week or so before Madera’s
murder, Wallace went to Astorga’s apartment and demanded that
he pay a monthly $100 tax to VLP. Wallace said things would “go
really bad” for Astorga and Madera if they did not pay the tax.
Wallace said he would try to collect from Madera again and left.
Astorga called the police and reported the incident to Detective
David Garcia.
On January 18, Wallace met at Silva’s apartment with
Castaneda, Jaime, Melgoza, Osvaldo Monroy, Lemen, and
4 Cardoza and Vargas testified for the prosecution pursuant
to plea agreements. Cardoza pled guilty to first degree murder
and admitted gang and firearm use enhancements in exchange
for a commitment to the Department of Juvenile Justice (DJJ)
until the age of 23 or 25. Vargas pled guilty to second degree
murder and admitted a gang enhancement for a sentence of 15
years to life.
3
Sanchez. Wallace was angry and said he wanted them to kill a
drug dealer who was refusing to pay taxes. He received two
shotguns from Lemen and gave them to Jaime along with a sheet
of paper with Madera’s address.
The day of Madera’s murder, Wallace went to Astorga’s
apartment and again accused him of selling drugs there. Wallace
directed Carlos Correa, who was visiting Astorga, to drive
Astorga and Jaime to Madera’s apartment. When Astorga and
Correa returned, Wallace ordered them to walk with him to his
apartment. Castaneda, Jaime, Vargas, Cardoza, and VLP
members David Yang and Eric Monroy5 eventually arrived.
Wallace donned a black mask and gloves and told the group to
“go over there and finish him off.” Wallace said, “This fool thinks
I’m playing, if he doesn’t pay up, blast him.”
Castaneda, Jaime, Cardoza, Monroy, Vargas, and Yang got
into Vargas’s car. Castaneda had a shotgun and Monroy had a
shorter shotgun with black electrical tape on the handle. The
guns were given to Jaime, who wrapped them in a towel and
placed them in the truck. Vargas drove to an alley a block away
from Madera’s apartment and parked. Wallace, Astorga, and
Correa returned to Astorga’s apartment.
Cardoza and Yang got out of Vargas’s car and went to see if
Madera was home. They returned and reported that Madera was
in the alley outside his apartment. Jaime called Wallace, who
5Yang testified for the prosecution. He was 15 years old at
the time of the murder. He pled guilty to second degree murder
and admitted a gang enhancement in exchange for a DJJ
commitment until the age of 23 or 25. Eric Monroy (Monroy),
Osvaldo Monroy’s brother, disappeared several months after the
murder and was still at large at the time of trial.
4
told him they should “blast” Madera if he refused “to pay up.”
Castaneda and Monroy took their shotguns from the trunk and
the group walked toward Madera’s apartment. Madera was in
the carport fixing a flat tire on his truck. Jaime made a gesture
to identify Madera to the others.
Castaneda and Monroy approached Madera. One of them
asked Madera in Spanish if he was “Pollo” and Madera replied in
Spanish, “Yes, why[?]” Jaime, Cardoza, or Yang said, “Get him.”
Castaneda and Monroy pulled out their guns and pointed them at
Madera. Madera raised his hands and said, “No, no.” Castaneda
and Monroy fired their guns at Madera. A shotgun blast from
Monroy’s gun hit Madera in the back and he fell to the ground.
Castaneda’s gun jammed. Castaneda, Monroy, and Vargas ran
back to Vargas’s car. Jaime, Cardoza and Yang ran in the
opposite direction.
Turner witnessed the shooting as she was returning to the
carport from her apartment. The police arrived in response to a
911 call and found Madera lying on the ground and bleeding. He
was transported to the hospital and later died from his injuries.
Turner told the police that Cardoza and other VLP members had
shot Madera.
Wallace heard the sirens from Astorga’s apartment and
told Astorga and Correa, “It’s done.” Wallace left and returned
with a scale and methamphetamine, which he placed in several
small packages.
Police officers responding to the incident saw Cardoza
running nearby and detained him. Yang saw the police detain
Cardoza, so he stayed in a restaurant before walking home.
Vargas drove to the residence of his friend Alfonso Reyes, who
lived across the street from Astorga. Monroy told Reyes that
5
Monroy and Castaneda “just did something” and needed to
destroy the evidence. Castaneda and Monroy gave their clothes
to Reyes and took showers. Reyes burned the clothing and gave
Castaneda and Monroy other clothes to wear.
Monroy removed the guns from Vargas’s car. Vargas
removed the towel along with a carrying bag for a chair. Monroy
wrapped the guns and bag in the towel and put them in an
apartment behind Reyes’s house. On Wallace’s orders, Jamie put
the guns in the bag and brought them to Astorga’s apartment.
Wallace hid the guns in the backyard. Jaime took the packages
of drugs Wallace had assembled and left.
While Wallace was still at Astorga’s apartment, Detective
Garcia called Astorga and told him Madera had been killed.
Astorga said he told the detective he was okay but did not
elaborate because Wallace was there. After Astorga hung up,
Wallace told him he would be using his apartment to sell drugs
and hid some of the drugs in the backyard. Wallace said Astorga
would suffer the same fate as Madera if he did not take care of
the drugs and guns. After Wallace left, Astorga called Detective
Garcia and reported what had happened. The detective and
another officer went to Astorga’s apartment and Astorga showed
them where the guns and drugs were hidden. Astorga and his
son were escorted to the police station.
Wallace was arrested several hours later at his apartment.
When he spoke to Silva by telephone a few hours after his arrest,
he said the “old dude” across the street still had his “stuff” and
that his “protégé” Jaime knew this “because he was over there
with [him].” Wallace had similar conversations with Jaime and
Silva. The next day, Wallace called Silva and told her to convey
to Jaime that the police were asking questions and to tell
6
everyone to keep quiet. Several days later, Silva told Jaime,
Vargas, and Melgoza that Wallace wanted them to recover the
guns from Astorga’s apartment. Jaime, Vargas, and Melgoza
ransacked the apartment in an effort to find the guns, not
knowing that the police had already confiscated them.
Lompoc Police Department Agent Scott Casey testified as
the prosecution’s gang expert. Agent Casey testified about VLP’s
pattern of criminal activity and identified the predicate crimes
committed by its members. Based on his review of the reports in
the case and the trial testimony, Agent Casey opined that VLP
would benefit from killing a drug dealer who refused to pay taxes
to the gang. When presented with a hypothetical tracking the
facts of the case, the agent opined that Madera’s murder was
committed for VLP’s benefit.
Jaime did not present any evidence in his defense.
Castaneda offered the testimony of a private investigator who
interviewed Turner four times. Turner told the investigator that
the individuals who shot Madera were two older men. She also
said the men were bigger than the two teenagers (one of whom
was Castaneda) who came to the apartment looking for Madera.
Wallace offered several witnesses who testified to Astorga’s
reputation for dishonesty and untrustworthiness. Astorga’s
stepdaughter testified that he had molested her as a child.
Wallace also called a gang expert who opined it was doubtful that
a VLP member who had just gotten out of prison would be given
the power to make gang-related decisions. The expert also
expressed doubt that someone with a leadership position in the
gang would plan a murder while non-gang members were
present. He further questioned whether a gang would sanction
7
the killing of a “nickel and dime drug runner” and give him so
little time to pay before carrying out the crime.
In 2013, a jury convicted Wallace, Castaneda, and Jaime of
first degree murder (§§ 187, subd. (a), 189). The jury also found
several enhancement allegations to be true, including that the
murder was committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)), and that Wallace committed the murder
for financial gain and to further the activities of his gang (§ 190.2,
subds. (a)(1), (a)(22)). Wallace was sentenced to life without the
possibility of parole (LWOP) plus 25 years to life and nine years
eight months. The judgment against him was subsequently
affirmed on appeal. (People v. Castaneda, supra, B249571.)
In December 2019, Wallace filed a petition for resentencing
under section 1170.95 and requested the appointment of counsel.
The petition alleged among other things that Wallace was
convicted of first degree murder “pursuant to the felony murder
rule or the natural and probable consequences doctrine” and that
he “could not now be convicted” of that crime because he was not
the actual killer and “did not, with the intent to kill, aid, abet,
counsel, command, induce, solicit, request, or assist the actual
killer in the commission of murder in the first degree.” Wallace
also attached a declaration from Monroy, who is currently serving
a prison sentence on an unrelated matter, stating among other
things that Wallace had merely directed him, Castaneda, Jaime,
and Vargas to assault and rob Madera.
On February 14, 2020, the People filed motion to dismiss
the petition and attached a copy of the unpublished opinion
affirming the judgment against Wallace. As the People noted,
our opinion recognized that under the instructions given to the
jury Wallace could only have been found guilty of first degree
8
murder as a direct aider and abettor. The People further noted
that in finding the financial gain and gang special circumstance
allegations to be true (§ 190.2, subds. (a)(1), (a)(22)), the jury
necessarily found that Wallace acted with an intent to kill.
On March 6, 2020, the trial court denied the petition
without appointing counsel or giving appellant the opportunity to
file a reply brief. In reaching its conclusion, the court took
judicial notice of the trial and appellate court records in the case
pursuant to Evidence Code section 452, subdivision (b). The
court reasoned: “While [Wallace] was convicted of first degree
murder (without being the actual killer), the Court of Appeal on
direct appeal rejected any claim that [Wallace’s] first degree
murder conviction violated People v. Chiu (2014) 59 Cal.4th 155,
superseded by statute as stated in People v. Lopez (2019) 38
Cal.App.5th 1087, 1103, by noting the jury instructions indicated
[Wallace] (and his codefendants) could be found guilty ‘of first
degree murder only if they intended to kill [the victim] and acted
with premeditation. The jury thus convicted them [i.e., including
petitioner Wallace] under direct aiding and abetting principles
. . . .’ The appellate court reinforced the point by observing the
jury found [Wallace] murdered for financial gain. The financial
gain special circumstance[] applies to murders that ‘are
intentional and carried out for financial gain.’ (§ 190.2, subd.
(a)(1).) The appellate court’s conclusions on direct appeal—i.e.,
the jury unmistakably determined in light of ‘overwhelming’
evidence and pursuant to instructions actually given that
[Wallace] acted with malice, premeditation, and deliberation
when committing first degree murder as a direct aider and
abettor— render him ineligible for relief under section 1170.95.”
(Italics omitted.)
9
DISCUSSION
Appellant contends the trial court’s denial of his petition for
resentencing without appointing counsel or affording him the
opportunity to file a reply brief violated his rights to the
assistance of counsel and a fair hearing under section 1170.95
and the federal and state constitutions. We conclude the court
erred in failing to appoint counsel or provide an opportunity for
counsel to file a reply brief, but deem the error harmless.
In 2018, the Legislature amended the felony murder and
the natural and probable consequences doctrines to ensure that
“murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f),
p. 6678; People v. Gentile (2020) 10 Cal.5th 830, 842.) The
Legislature then amended sections 188 and 189, and added
section 1170.95, to provide a procedure to persons previously
convicted of murder pursuant to the felony murder or natural and
probable consequences theories to obtain retroactive relief.
(Gentile, at p. 853 [“the Legislature intended section 1170.95 to
be the exclusive avenue for retroactive relief under Senate Bill
[No.] 1437”].) To be eligible for resentencing, a defendant must
establish that he “could not be convicted of first or second degree
murder because of changes to Section 188 or 189 made effective”
as part of Senate Bill No. 1437. (§ 1170.95, subd. (a)(3).)
Subdivision (a) of section 1170.95 sets forth the
requirements for a facially sufficient petition. The petitioner
must state that the charging document allowed the prosecution to
proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine; the petitioner was
10
convicted of first or second degree murder; and the petitioner
could not be convicted of first or second degree murder because of
changes to Section 188 or 189, as effective on January 1, 2019.
Subdivision (b)(1)(A) of section 1170.95 states where and how the
petition must be filed and specifies its required content, including
a declaration by petitioner that he or she “is eligible for relief
under this section, based on all the requirements of subdivision
(a).”
If the petition meets the requirements of section 1170.95,
subdivisions (a) and (b), the trial court proceeds to subdivision (c)
to assess whether a prima facie showing for relief has been made.
In Lewis, supra, 11 Cal.5th 952, our Supreme Court held that if a
defendant files a facially sufficient petition and requests the
appointment of counsel, the court must appoint counsel and
entertain further briefing. (Id. at p. 957.) Only after the
appointment of counsel and the opportunity for briefing may the
court consider the record of conviction to determine whether
petitioner made a prima facie showing that he or she is entitled
to relief. (Id. at pp. 969-970.)
The record of conviction relates to the trial court’s inquiry,
distinguishing petitions with potential merit from those clearly
meritless. (Lewis, supra, 11 Cal.5th at p. 971.) In making its
preliminary assessment regarding petitioner’s allegations, the
court does not engage in fact finding and must take petitioner’s
allegations as true. (Ibid.) However, if the record of conviction,
including the court’s documents, refute the allegations in the
petition, the court may make a credibility determination adverse
to petitioner. (Ibid.)
Here, Wallace’s petition for resentencing met the
requirements for facial sufficiency and he requested the
11
appointment of counsel. The trial court thus erred in summarily
denying his petition without first appointing counsel and
accepting briefing. (Lewis, supra, 11 Cal.5th at pp. 969-970.)
The court in Lewis nevertheless concluded that deprivation of a
petitioner’s right to counsel in this context is state law error only,
tested for prejudice under the standard established in People v.
Watson (1956) 46 Cal.2d 818.) Moreover, any error in summarily
denying a section 1170.95 petition is harmless unless the
petitioner can show ““‘it is reasonably probable that if [he or she]
had been afforded assistance of counsel his [or her] petition would
not have been summarily denied without an evidentiary
hearing.’”” (Lewis, at p. 974.)
We conclude that the trial court’s error in failing to appoint
counsel and provide an opportunity for briefing before
considering the record of conviction and summarily denying the
petition is harmless. Contrary to Wallace’s claim, the record of
conviction unequivocally establishes that he was convicted of
murder as a direct aider and abettor. As we noted in our opinion
affirming Wallace’s convictions on direct appeal, the jury
instructions indicated “[Wallace] could be found guilty of first
degree murder only if [he] intended to kill Madera and acted with
premeditation. The jury thus convicted [him] under direct aiding
and abetting principles . . . .” (People v. Castaneda, supra,
B249571.) We also recognized that in finding true the financial
gain special circumstance allegation, the jury necessarily found
that Wallace acted with the requisite intent to kill. (§ 190.2,
subd. (a)(1).)
Wallace contends that notwithstanding this unequivocal
evidence that he was convicted as a direct aider and abettor who
acted with an intent to kill, his petition for resentencing was
12
erroneously denied because he presented a declaration from
Monroy alleging among other things that Wallace did not order
him, Castaneda, or Jaime to kill Madera. We are not persuaded
because “section 1170.95 does not allow relitigation of factual
questions that were settled by a prior jury . . . .” (People v.
Secrease (2021) 63 Cal.App.5th 231, 247, review granted June 30,
2021, S68862.)
DISPOSITION
The order denying Wallace’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
13
John F. McGregor, Judge
Superior Court County of Santa Barbara
______________________________
James Koester, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriguez, Acting
Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Senior Assistant Attorney
General, Kenneth C. Byrne, Supervising Deputy Attorney
General, Christopher G. Sanchez, Deputy Attorney General, for
Plaintiff and Respondent.
14