Filed 8/26/21 P. v. Gallow CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

WHITNEY GALLOW,

Defendant and Appellant.

 B300252

 (Los Angeles County

 Super. Ct. No. BA091853)

APPEAL from an order of the Superior Court of 

Los Angeles County, Laura F. Priver, Judge. Affirmed.

John Lanahan, under appointment by the Court of Appeal, 

for Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Amanda V. Lopez and Nima Razfar, Deputy 

Attorneys General, for Plaintiff and Respondent.

____________________________
2

Defendant and appellant Whitney Gallow challenges 

the trial court’s summary denial of his petition under Penal 

Code1 section 1170.95 for resentencing on his murder convictions. 

He argues that the trial court erred by denying his petition 

without appointing counsel to represent him, and by finding

that he was the actual killer and was therefore ineligible for 

resentencing. Because the record of conviction shows as a 

matter of law that Gallow is ineligible, we hold that the failure 

to appoint counsel was harmless error. On that basis, we affirm.

FACTUAL AND PROCEDURAL SUMMARY

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 felonymurder (§ 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)), but 

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

parole for the murders, plus an additional term of life with the

possibility of parole for attempted murder, plus 15 more years 

for three firearm enhancements. In Gallow’s direct appeal, we 

struck two of the firearm enhancements but otherwise affirmed 

the judgment. (People v. Gallow (Sep. 20, 1996, B088383)

[nonpub. opn.].)

1 Subsequent statutory references are to the Penal Code.
3

The following summary of the facts of the case is drawn 

from our unpublished opinion in Gallow’s direct appeal: In

August 1992, Gallow asked an acquaintance, Collin McDonald, 

to set up a deal for Gallow to purchase three kilograms of cocaine. 

On the evening of August 11, Gallow and his friend James 

Escandero went to McDonald’s house with more than $50,000 

in cash, which McDonald counted. McDonald contacted his 

associate Adrian Ponce and arranged for the deal to take place 

the next day at McDonald’s house. 

On August 12, Gallow and Escandero arrived at 

McDonald’s house with a bag, which McDonald presumed 

contained the money to buy the cocaine. Ponce arrived an hour 

later with his friend Enrique Urzua, who was carrying a bag with 

the cocaine. Ponce and Urzua entered the house while Ponce’s 

girlfriend, Angela Rodriguez, remained outside in Urzua’s car.

McDonald took a kilogram package of cocaine from the 

bag and showed it to Gallow and Escandero. He asked to see 

the money again, but Escandero pulled his bag away and smiled. 

McDonald felt uneasy and said he did not want to go through 

with the deal. All the visitors drove away, but Gallow and 

Escandero caught up with Ponce and Urzua and convinced them 

to come back to McDonald’s house. They convinced McDonald 

that he was overreacting, and McDonald allowed the others into 

the house. As Gallow entered the house, he said, “Come on. Let’s 

do this,” and took the bag from Escandero.

Inside the house, Escandero asked to use the restroom 

and began walking in that direction. McDonald told Gallow he 

wanted to see the money. Gallow reached into the bag, pulled 

out a gun, and began shooting. McDonald was shot four times 

but managed to escape out the front door. As he was leaving, 
4

he heard “a lot” more gunshots and saw Escandero through a 

window holding a gun.

Gallow and Escandero came out the front door. One of 

them pursued McDonald, and the other came toward Ponce’s 

girlfriend Rodriguez, who drove away. McDonald eluded his 

pursuers and hid in a neighbor’s house until police arrived.

Police discovered Ponce in the family room and Urzua in 

the living room of the house, both dead from close-range gunshot 

wounds to the head. Ponce had been shot with a .32 caliber 

weapon and Urzua with a nine millimeter Luger.

In the ambulance on the way to the hospital, McDonald 

identified Gallow as the person who had shot him, though 

he later told police Gallow was not present, and he did not 

disclose that he had intended to sell cocaine to his assailants. 

Police searched McDonald’s house and found three spent 

nine millimeter shell casings that were determined to have 

been fired from a Luger, as well as an empty bag matching 

the description of the one that had contained the cocaine.

•••

In 2018, the Legislature enacted Senate Bill No. 1437 

(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which abolished 

the natural and probable consequences doctrine in cases of

murder, and limited the application of the felony-murder 

doctrine. (See People v. Gentile (2020) 10 Cal.5th 830, 842–843

(Gentile).) Under the new law, a conviction for felony murder 

requires proof that the defendant was either the actual killer, 

acted with the intent to kill, or “was a major participant in 

the underlying felony and acted with reckless indifference to 

human life.” (§ 189, subd. (e)(3).) The legislation also enacted

section 1170.95, which established a procedure for vacating 
5

murder convictions for defendants who could no longer be 

convicted of murder because of the changes in the law and 

resentencing those who were so convicted. (Stats. 2018, 

ch. 1015, § 4, pp. 6675–6677.)

Gallow filed a petition for resentencing on May 23, 2019. 

The trial court did not appoint counsel to represent Gallow, 

and summarily denied the petition on the ground that Gallow 

actually killed both victims and was the only shooter in the case.

DISCUSSION

A. Background on Senate Bill No. 1437

Senate Bill No. 1437 includes both prospective and 

retrospective provisions. Prospectively, the law amended

section 188 to provide that “[e]xcept 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.” (§ 188, subd. (a)(3).) The effect of this amendment is 

to “eliminate[ ] natural and probable consequences liability for 

first and second degree murder.” (Gentile, supra, 10 Cal.5th at 

p. 849.) In addition, Senate Bill No. 1437 enacted section 189, 

subdivision (e), which restricted felony-murder liability to cases 

in which the defendant was the actual killer, acted with the 

intent to kill, or was a major participant in the underlying felony 

and acted with reckless indifference to human life. (See Gentile, 

supra, at pp. 842–843.)

The retroactive component of Senate Bill No. 1437 is

codified in section 1170.95. (See Gentile, supra, 10 Cal.5th 

at p. 853 [“the Legislature intended section 1170.95 to be 

the exclusive avenue for retroactive relief under Senate Bill
6

[No.] 1437”].) This section allows a defendant “convicted 

of felony murder or murder under a natural and probable 

consequences theory [to] file a petition” for resentencing 

under the new law. (§ 1170.95, subd. (a).) To be eligible for

resentencing, a defendant must show that he “could not be

convicted of first or second degree murder because of changes 

to Section 188 or 189 made effective” as a part of Senate Bill 

No. 1437. (§ 1170.95, subd. (a)(3).)

The first step for a defendant to obtain relief under 

section 1170.95 is to file a declaration affirming that he is 

eligible for resentencing under the new law. (See § 1170.95, 

subd. (b)(1).) The trial court reviews the petition, and if 

the petition is incomplete, “the court may deny the petition 

without prejudice to the filing of another petition and advise 

the petitioner that the matter cannot be considered without 

the missing information.” (§ 1170.95, subd. (b)(2).)

If the defendant’s petition is facially sufficient, the 

trial court “shall appoint counsel to represent the petitioner.” 

(§ 1170.95, subd. (c).) The prosecutor must file a response within 

60 days of service of the petition, and the petitioner may file 

a reply. (Ibid.) At this stage, the trial court must determine 

whether the petitioner has made a prima facie case for relief, 

under a standard of review “analogous” to the “prima facie 

inquiry in habeas corpus proceedings.” (People v. Lewis (2021) 

11 Cal.5th 952, 971 (Lewis).)2 In this review, “ ‘ “the court takes 

2 After the parties had filed their briefs in this case, 

the Supreme Court released its opinion in Lewis establishing 

the procedure for courts to follow in determining whether a 

defendant had made a prima facie case for resentencing under 
7

petitioner’s factual allegations as true and makes a preliminary 

assessment regarding whether the petitioner would be entitled 

to relief if his or her factual allegations were proved. If so, the 

court must issue an order to show cause.” ’ [Citations.] ‘[A] court 

should not reject the petitioner’s factual allegations on credibility 

grounds without first conducting an evidentiary hearing.’

[Citations.] ‘However, if the record, including the court’s own 

documents, “contain[s] facts refuting the allegations made in 

the petition,” then “the court is justified in making a credibility 

determination adverse to the petitioner.” ’ ” (Ibid.)

As part of its review, the court may consult the record 

of conviction in the case, including any prior appellate opinions, 

subject to the caveat that “the probative value of an appellate 

opinion is case specific, and ‘it is certainly correct that an 

appellate opinion might not supply all answers.’ ” (Lewis, supra,

11 Cal.5th at p. 972.) The “trial court should not engage in 

‘factfinding involving the weighing of evidence or the exercise 

of discretion.’ ([People v.] Drayton [(2020)] 47 Cal.App.5th [965,] 

980 . . .)” (Lewis, supra, 11 Cal.5th at p. 972) in recognition of the 

fact that “the ‘prima facie bar was intentionally and correctly set 

very low.’ ” (Ibid.)

If the trial court determines that the defendant has met

this burden, “the court shall issue an order to show cause.” 

(§ 1170.95, subd. (c).) If the court issues an order to show cause, 

it must hold a hearing within 60 days to determine whether to 

vacate the murder conviction. (§ 1170.95, subd. (d)(1).) At this 

final stage of the proceeding, the prosecution has the burden 

section 1170.95. We allowed the parties to file supplemental 

briefs to explain how, if at all, Lewis affects this case.
8

of proving “beyond a reasonable doubt[ ] that the petitioner is 

ineligible for resentencing.” (§ 1170.95, subd. (d)(3).)

B. The Trial Court’s Error in Denying the Petition 

without Appointing Counsel Was Harmless

Gallow is correct that the trial court erred by denying 

his petition without appointing counsel to represent him. (See

Lewis, supra, 11 Cal.5th at pp. 960−970 [trial court must appoint

counsel in all cases where a petition is facially sufficient].) 

Gallow is also correct that the trial court misstated the record 

when it described him as the only shooter in the case. This is not 

the end of our inquiry, however. The failure to appoint counsel in 

a proceeding under section 1170.95 is an error of state statutory 

law only, and is not a violation of the defendant’s constitutional 

rights. (Lewis, supra, 11 Cal.5th at pp. 972−973.) We therefore 

review for harmless error under the Watson3 standard, under 

which the defendant “must . . . ‘demonstrate there is a reasonable 

probability that in the absence of the error he . . . would have 

obtained a more favorable result.’ ” (Id. at p. 974.) This means

he “ ‘has the burden of showing “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.” ’ ” (Ibid.)

Gallow has failed to meet this burden. In order to find 

the felony-murder special circumstance true, the jury must have 

found that Gallow either was the actual killer, that he was not 

the actual killer but acted with the intent to kill in aiding, 

abetting, soliciting, or assisting in the murder, or, at a minimum, 

that he was a major participant in the felony and acted with 

3 People v. Watson (1956) 46 Cal.2d 818.
9

reckless indifference to human life.

4 This is the same finding 

required for a conviction of felony murder under the newly 

amended section 189. (See § 189, subd. (e)(3).) He is therefore 

ineligible for resentencing as a matter of law because he cannot 

show that he “could not be convicted of first or second degree 

4 The murders in this case postdated the approval of 

Proposition 115, which amended section 190.2 to allow for 

felony-murder special circumstance findings where the defendant 

was a major participant in the felony and acted with reckless 

indifference to human life. (See Prop. 115, § 10, as approved by 

voters, Primary Elec. (June 5, 1990).) In addition to the felonymurder special circumstance, the jury in this case also found 

true a multiple-murder special circumstance. (See § 190.2, 

subd. (a)(3).) Unlike a felony-murder special circumstance, 

a multiple-murder special circumstance does not allow for a 

finding that the defendant was a major participant who acted 

with reckless indifference to human life; instead, it requires 

either that the defendant was the actual killer, or that he acted 

with intent to kill in aiding and abetting the murders. (People v. 

Nunez and Satele (2013) 57 Cal.4th 1, 45.) This was the case 

when Gallow committed the murders and when his trial took 

place. (See People v. Hardy (1992) 2 Cal.4th 86, 192; People v. 

Anderson (1987) 43 Cal.3d 1104, 1149–1150.) Thus, the multiplemurder special circumstance finding would imply that the jury 

found either that Gallow was the actual killer or aided and 

abetted the murder. In either case, he would be ineligible for 

resentencing under section 1170.95. (See §§ 1170.95, subd. (a)(2), 

189, subd. (e).) We decline to rely on the multiple-murder special 

circumstance finding as a separate and independent basis for 

affirming the trial court’s denial of Gallow’s petition, however, 

because we cannot conclude from the record that the jury was 

instructed correctly as to this aspect of the multiple-murder 

special circumstance.
10

murder because of changes to Section 188 or 189 made effective” 

in Senate Bill No. 1437. (§ 1170.95, subd. (a)(3).)

Gallow disagrees with this conclusion. He argues that 

the jury’s special circumstance finding does not preclude him 

from relief under section 1170.95 because, in the years following 

his conviction, the Supreme Court clarified the definition of major 

participation and reckless indifference to human life in People v. 

Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 

63 Cal.4th 522 (Clark). Because no court has considered whether 

he was a major participant who acted with reckless indifference 

under the Banks/Clark standard, he contends that the trial court 

could not have found as a matter of law that he was ineligible 

for resentencing.

Within the past year, more than a dozen published opinions

in the Court of Appeal have considered this question, and have 

reached divergent conclusions. We have addressed the issue

ourselves three times in People v. Galvan (2020) 52 Cal.App.5th 

1134, review granted October 14, 2020, S264284 (Galvan), People

v. Murillo (2020) 54 Cal.App.5th 160, review granted November 

18, 2020, S264978 (Murillo), and People v. Allison (2020) 55 

Cal.App.5th 449 (Allison). In all three cases, we concluded 

that a defendant with a pre-Banks/Clark felony-murder special

circumstance finding is ineligible for resentencing under 

section 1170.95, and that the trial court did not err by summarily 

denying a defendant’s petition on that basis. Our colleagues in

Division Two reached the same conclusion in People v. Nunez

(2020) 57 Cal.App.5th 78, review granted January 13, 2021, 

S265918, as did Divisions One and Two of the Fourth Appellate

District, respectively, in People v. Gomez (2020) 52 Cal.App.5th 1,

review granted October 14, 2020, S264033, and People v. Jones
11

(2020) 56 Cal.App.5th 474, review granted January 27, 2021, 

S265854, and most recently, the Fifth Appellate District, in 

People v. Simmons (2021) 65 Cal.App.5th 739. On the other 

hand, our colleagues in Division Five of this district disagreed

and held in People v. Torres (2020) 46 Cal.App.5th 1168, review 

granted June 24, 2020, S262011, abrogated on another ground 

by Lewis, supra, 11 Cal.5th at pp. 963−968, People v. Smith 

(2020) 49 Cal.App.5th 85, review granted July 22, 2020, S262835, 

and People v. York (2020) 54 Cal.App.5th 250, review granted 

November 18, 2020, S264954, that a pre-Banks/Clark felonymurder special circumstance finding does not disqualify a 

defendant from resentencing under section 1170.95. In People v. 

Harris (2021) 60 Cal.App.5th 939, review granted April 28, 2021,

S267802, a panel in Division Seven reached the same conclusion, 

as did the First Appellate District in People v. Secrease (2021) 

63 Cal.App.5th 231, review granted June 30, 2021, S268862,

the Sixth Appellate District in People v. Pineda (2021) 66

Cal.App.5th 792, and the Fourth Appellate District, Division

Three in People v. Gonzalez (2021) 65 Cal.App.5th 420, and 

Division One in People v. Arias (2021) 66 Cal.App.5th 987.

There is no need to repeat arguments that have been

thoroughly addressed in the above opinions. We stand by our 

analysis in Galvan, Murillo, and Allison, and on that basis we 

hold that Gallow is unable to make a prima facie case for relief 

under section 1170.95. The trial court’s error in finding that 

Gallow was the only shooter is irrelevant. Even if he was not

the actual killer, the felony-murder special circumstance 

finding renders him ineligible for relief as a matter of law under

section 1170.95. Because Gallow has not shown that “ ‘ “it is 

reasonably probable that if [he . . . ] had been afforded assistance 
12

of counsel his . . . petition would not have been summarily denied

without an evidentiary hearing” ’ ” (Lewis, supra, 11 Cal.5th 

at p. 974), the error in prematurely denying his petition was 

harmless.

This does not leave Gallow without any means of 

challenging the validity of the special circumstance finding,

however. As we noted in Galvan, a defendant with a 

pre-Banks/Clark special circumstance finding may challenge 

the sufficiency of the evidence for the special circumstance 

by means of a habeas corpus petition. (Galvan, supra, 52 

Cal.App.5th at p. 1141, review granted; In re Scoggins (2020) 

9 Cal.5th 667, 673−674.)
13

DISPOSITION

The trial court’s order denying the petition for resentencing 

is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

BENDIX, J.

CRANDALL, J.*

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 

of the California Constitution.