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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

GREGORY MARSHALL 

WALLACE,

 Defendant and Appellant.

2d Crim. No. B305348

(Super. Ct. No. 1362689)

(Santa Barbara County)

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 

1 All statutory references are to the Penal Code unless 

otherwise noted.
2

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

2 The 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. 
3

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.
4

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 

5 Yang 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. 

 
5

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 
6

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 
7

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 
8

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 
9

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.) 
10

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 
11

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 
12

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 
13

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.
14

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.