Filed 10/13/23 P. v. Gallardo CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

CARLOS LEONEL GALLARDO,

Defendant and Appellant.

B322375

(Los Angeles County

Super. Ct. No. LA048566)

APPEAL from an order of the Superior Court of 

Los Angeles County, Alan Schneider, Judge. Affirmed.

Tanya Dellaca, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance Winters, Chief 

Assistant Attorney General, Susan Pithey, Senior Assistant 

Attorney General, Michael Keller and John Yang, Deputy 

Attorneys General, for Plaintiff and Respondent.

 ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳
2

Defendant and appellant Carlos Leonel Gallardo was 

convicted of second degree murder and attempted murder in 

2008. Gallardo now appeals from an order denying his petition 

for resentencing under Penal Code section 1170.95.1 The trial 

court concluded that Gallardo had not made a prima facie 

showing of eligibility for resentencing because he was convicted 

as a perpetrator or direct aider and abettor who acted with 

express malice. Gallardo contends the trial court erred because 

an ambiguity in the jury instructions allowed the jury to convict 

him on a theory of imputed malice. We disagree and affirm the 

denial of Gallardo’s petition for resentencing.

BACKGROUND

The underlying offense

We take our statement of the evidence underlying 

Gallardo’s crime from the Court of Appeal opinion affirming his 

judgment of conviction. (People v. Gallardo (Mar. 1, 2012, 

B228628) [nonpub. opn.] (Gallardo).)2

1 All further undesignated statutory references are to the 

Penal Code.

Effective June 30, 2022, section 1170.95 was renumbered to 

section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.) 

We therefore refer to the law formerly codified at section 1170.95 

as section 1172.6 for the remainder of this opinion.

2 We have taken judicial notice of records from Gallardo,

namely, the reporter’s transcript on appeal, which includes the 

reporter’s transcript of the trial.

We refer to the factual background from Gallardo “for 

background purposes and to provide context for the parties’ 

arguments.” (People v. Flores (2022) 76 Cal.App.5th 974, 978, 

fn. 2.) We do not rely on the facts in Gallardo to review the trial 
3

On March 13, 2005, “[a]t approximately 1:00 a.m., a group 

of 10 to 20 men and women arrived at the Gentleman’s Players 

Club in Sun Valley in two vehicles, a Hummer limousine and a 

white Escalade (hereinafter the ‘Hummer group’). . . . [¶] At 

roughly the same time, appellant Gallardo arrived in his white 

convertible Mustang, accompanied by four or five men.” The two 

groups argued outside the club “over the girls,” and tensions 

continued to rise between them inside the club.

Around 3:30 a.m., the two groups left the club. “Some

members of the Hummer group were getting into the Hummer, 

while others were standing next to the vehicles and talking. [¶] 

Meanwhile, Gallardo and his companions entered his Mustang.

Gallardo drove out of the club’s lot, parked at the edge of the 

driveway, stepped out of the car, opened the Mustang’s trunk, 

and appeared to search for something inside.” The security 

guards testified it looked like “Gallardo put something from the 

trunk in his waistband.”

“Gallardo reentered the Mustang and drove to the middle of 

the street. He caused the Mustang to ‘burn rubber,’ apparently

by holding the brake while simultaneously pressing the gas 

pedal. The Mustang’s engine was loud and the tires smoked and 

kicked up gravel from the street.” Shots were fired from the 

Mustang. As Gallardo drove away, a security guard “heard 

‘return fire’ coming ‘[f]rom the vicinity of the Escalade.’ ”

Francisco Herrera Jr., who had been standing in the street, 

was shot and killed. “The trajectory of the bullet was consistent 

with a standing victim being shot by a person seated in a 

vehicle.”

court’s determination of his eligibility for resentencing at the 

prima facie stage. (Id. at p. 988.)
4

Gallardo’s conviction, sentence, and direct appeal

Gallardo’s first trial in 2007 resulted in a hung jury and 

was declared a mistrial. Gallardo was re-tried in 2008.

The jury found Gallardo guilty of the second degree murder 

of Francisco Herrera (§ 187, subd. (a)); the attempted murder of 

John Doe (§§ 664, 187, subd. (a)); possession of a firearm by a 

felon (former § 12021, subd. (a)(1)); and shooting from a motor 

vehicle (former § 12034, subd. (c)). The jury found the allegation 

that Gallardo personally and intentionally discharged the firearm 

not true with respect to the murder, attempted murder, and 

shooting from a motor vehicle offenses. The jury also found not 

true the allegation that Gallardo’s attempted murder of John Doe

was willful, deliberate, and premeditated. The jury was not 

instructed on the natural and probable consequences doctrine or 

the felony murder rule.

The trial court sentenced Gallardo to 72 years to life, plus 

20 years. A different panel of this court affirmed Gallardo’s 

convictions on appeal in 2012. (Gallardo, supra, B228628.)

Gallardo’s petition for resentencing

Gallardo filed a petition for resentencing in March 2022. 

The petition consists of a preprinted form on which Gallardo

checked boxes indicating he was convicted of murder and 

attempted murder following a trial and “could not presently be 

convicted of murder or attempted murder because of changes

made to Penal Code §§ 188 and 189, effective January 1, 2019.”3

3 Gallardo did not specify in his petition whether he was 

seeking to be resentenced on his second degree murder 

conviction, his attempted murder conviction, or both. On appeal, 

Gallardo argues the trial court erred in denying his petition for 

resentencing only as to his second degree murder conviction.
5

The petition did not recite any additional facts relating to the 

underlying convictions. At Gallardo’s request, the trial court 

appointed counsel to represent him.

The People opposed the petition, arguing Gallardo’s 

conviction was not eligible for resentencing because the jury was 

not instructed on any theories of imputed malice and found 

Gallardo acted with actual malice. The People also argued the 

court could rely on the opinion from Gallardo’s direct appeal to

make determinations of eligibility at the prima facie stage.

Gallardo filed a reply in support of his petition, contending 

that the trial court could not rely on facts in the prior appellate 

opinion or engage in factfinding to determine whether Gallardo 

acted with actual malice. Gallardo argued that his petition was 

“facially valid” because he “alleged that a charging document was 

filed permitting the prosecution to proceed on both his murder 

and attempted murder convictions based on theories that make 

him illegible[sic] for resentencing relief . . . .”

In July 2022, the trial court denied Gallardo’s petition for 

failing to establish a prima facie case for relief. The court 

specifically stated that it was not considering the facts in the 

opinion from Gallardo’s direct appeal and made its decision after 

reviewing the jury instructions. The court found that because no 

natural and probable consequences or felony murder instruction 

was given, Gallardo had been convicted of second degree murder 

and attempted murder “either as a perpetrator or a direct aider 

and abettor,” and not pursuant to any theory under which malice 

was imputed to him based solely on his participation in a crime. 

Gallardo timely appealed.
6

DISCUSSION

I. Senate Bill Nos. 1437 and 775 and Section 1172.6

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

1437) eliminated the natural and probable consequences doctrine 

as a basis for finding a defendant guilty of murder and limited 

the scope of the felony murder rule. (People v. Strong (2022) 13 

Cal.5th 698, 707–708 (Strong); People v. Lewis (2021) 11 Cal.5th 

952, 957 (Lewis); People v. Gentile (2020) 10 Cal.5th 830, 842–843 

(Gentile).) The bill amended section 188 by adding the 

requirement that, except as stated in section 189, subdivision (e), 

“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).) Senate Bill No. 775 (2021–2022 Reg. Sess.) 

(Senate Bill 775) expanded Senate Bill 1437’s mandate in part by

eliminating criminal liability for convictions for attempted 

murder obtained pursuant to the natural and probable 

consequences doctrine.

These amendments have eliminated imputed malice 

liability for second degree murder and attempted murder. 

(People v. Lopez (2023) 88 Cal.App.5th 566, 575 (Lopez); People v.

Montes (2021) 71 Cal.App.5th 1001, 1008.) The amendments also

eliminated aider and abettor liability for crimes committed by the 

actual perpetrator “that were not intended but were reasonably 

foreseeable,” which were previously actionable under the natural 

and probable consequences doctrine. (People v. Pacheco (2022) 76 

Cal.App.5th 118, 123 (Pacheco); People v. Sanchez (2022) 75 

Cal.App.5th 191, 196.) But a principal in a murder, including an 

aider or abettor, can still be criminally liable if he or she

personally possesses malice aforethought, whether express or 
7

implied. (People v. Silva (2023) 87 Cal.App.5th 632, 639–640; 

People v. Offley (2020) 48 Cal.App.5th 588, 595–596 (Offley) 

[Senate Bill 1437 did not “alter the law regarding the criminal 

liability of direct aiders and abettors of murder because such 

persons necessarily ‘know and share the murderous intent of the 

actual perpetrator’ ”].)

Senate Bills 1437 and 775 created a procedure, now 

codified at section 1172.6, in which a person convicted of a 

qualifying offense under the former law may seek resentencing if 

he or she could no longer be convicted of those offenses under 

amended section 188. (Lewis, supra, 11 Cal.5th at p. 959; 

Gentile, supra, 10 Cal.5th at p. 847.) A defendant commences the

procedure by filing a petition containing a declaration that, 

among other things, he or she could not presently be convicted of 

murder under the current law. (Strong, supra, 13 Cal.5th at 

p. 708.) In relevant part, the statute requires the court, “[a]fter 

the parties have had an opportunity to submit briefings,” to “hold 

a hearing to determine whether the petitioner has made a prima 

facie case for relief. If the petitioner makes a prima facie 

showing that the petitioner is entitled to relief, the court shall 

issue an order to show cause. If the court declines to make an 

order to show cause, it shall provide a statement fully setting 

forth its reasons for doing so.” (§ 1172.6, subd. (c).)

II. Prima Facie Stage and Standard of Review

At the prima facie stage, “ ‘ “the court takes 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.” ’ ” (Lewis, supra, 11 

Cal.5th at p. 971.) “While the trial court may look at the record 

of conviction . . . to determine whether a petitioner has made a 
8

prima facie case for section [1172.6] relief, the prima facie inquiry 

under subdivision (c) is limited.” (Ibid.) Courts may not reject 

the petitioner’s allegations “ ‘on credibility grounds’ ” or engage in 

“ ‘factfinding involving the weighing of evidence or the exercise of 

discretion.’ ” (Id. at pp. 971, 972.) Rather, “[t]he record should be 

consulted at the prima facie stage only to determine ‘readily 

ascertainable facts,’ such as the crime of conviction and findings 

on enhancements.” (People v. Duchine (2021) 60 Cal.App.5th 798, 

815; see, e.g., People v. Harden (2022) 81 Cal.App.5th 45, 54–56 

(Harden) [considering jury instructions and verdicts to determine 

whether defendant made prima facie showing of eligibility]; 

People v. Ervin (2021) 72 Cal.App.5th 90, 106 (Ervin) 

[considering sentencing enhancements, jury instructions, closing 

arguments, and verdicts at prima facie stage].)

A petitioner fails to make a prima facie showing for relief

“if the record of conviction conclusively establishes, with no 

factfinding, weighing of evidence, or credibility determinations, 

that (1) the petitioner was the actual killer, or (2) the petitioner 

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 petitioner was a major participant in the 

underlying felony and acted with reckless indifference to human 

life, or (4) the petitioner acted with malice aforethought that was 

not imputed based solely on participation in a crime.” (People v.

Lopez (2022) 78 Cal.App.5th 1, 14.) The trial court’s denial of a 

resentencing petition at the prima facie stage “ ‘is a purely legal 

conclusion,’ ” which appellate courts review de novo. (Ervin, 

supra, 72 Cal.App.5th at p. 101.)
9

III. The Record of Conviction Conclusively Establishes

that Gallardo Was Convicted of Second Degree 

Murder Under a Theory of Express Malice

Because Senate Bill 1437 eliminated the natural and 

probable consequences doctrine as a basis for murder liability, an 

aider and abettor can no longer be held liable for unintentional 

deaths that occurred during the commission of a crime. (Pacheco, 

supra, 76 Cal.App.5th at p. 124.) However, Senate Bills 1437 and 

775 did not eliminate “direct” aiding and abetting liability, which 

requires that the accomplice “necessarily ‘know and share the 

murderous intent of the actual perpetrator.’ ” (Offley, supra, 48 

Cal.App.5th at p. 596; People v. Glukhoy (2022) 77 Cal.App.5th 

576, 590 [“the direct aider and abettor must have the same 

mental state as the actual perpetrator of the charged crime”].) 

Accordingly, to establish a prima facie showing of relief under 

section 1172.6, a petitioner must establish he was convicted on a 

now invalid theory of imputed malice.

In Gallardo’s case, the trial court did not instruct the jury 

regarding any theories of imputed malice. The prosecutor in 

closing argued that “when [Gallardo] acted, he had a state of 

mind called malice aforethought,” explained that the jury could

find Gallardo either acted “with express specific intent to kill” or 

with conscious disregard for human life, and explicitly endorsed 

the theory that Gallardo acted with the specific intent to kill.

Gallardo contends that even in the absence of any specific 

instruction on theories of imputed malice, an ambiguity in the

jury instructions made it possible the jury convicted him of 

second degree murder by imputing malice to him. Specifically, 

Gallardo argues the definition of aider and abettor in CALJIC 

No. 3.01 does not adequately explain that to convict a defendant 
10

of aiding and abetting an implied malice murder, a jury must find 

the defendant acted with conscious disregard for life.

4

Gallardo relies on People v. Langi (2022) 73 Cal.App.5th 

972 (Langi) for this argument. Langi was one of four people who 

physically assaulted a victim during a robbery. (Id. at pp. 975–

976.) The victim died after falling during the attack and hitting 

his head. (Id. at p. 975.) The jury was instructed on first degree

felony murder and direct aiding and abetting and ultimately 

convicted Langi of second degree murder. (Id. at pp. 977.) The 

trial court denied Langi’s petition for resentencing at the prima 

facie stage. (Ibid.) The appellate court reversed, finding the jury 

could have convicted Langi as an aider and abettor, and CALJIC

No. 3.01 did not adequately explain that to be convicted of aiding 

and abetting second degree implied malice murder, Langi had to

“have acted with the mental state of implied malice.” (Id. at 

p. 983.) In other words, the aiding and abetting instruction did 

not specifically explain that the accomplice must have 

“ ‘knowledge that the perpetrator intended to commit the [lifeendangering] act, intent to aid the perpetrator in the commission 

of the act, [and] knowledge that the act is dangerous to human 

life, and . . . conscious disregard for human life.’ ” (Ibid.) The 

court concluded this deficiency in CALJIC No. 3.01 allowed for 

the possibility that the jury found Langi guilty of aiding and 

abetting second degree murder by imputing to him the implied 

4 CALJIC No. 3.01 states: “A person aids and abets the 

[commission] [or] [attempted commission] of a crime when he or 

she: [¶] (1) [w]ith knowledge of the unlawful purpose of the 

perpetrator, and [¶] (2) [w]ith the intent or purpose of committing

or encouraging or facilitating the commission of the crime, and 

[¶] (3) [b]y act or advice aids, promotes, encourages or instigates 

the commission of the crime.”
11

malice of the actual killer, even in the absence of an instruction 

on the natural and probable consequences doctrine. (Id. at 

pp. 982, 984.)

Here, however, the jury found Gallardo guilty of both 

second degree murder and attempted murder. The court 

instructed the jury that to find Gallardo liable for attempted 

murder as a direct aider and abettor, it must find that he shared 

the express malice of the person who committed the act. The 

court instructed the jury with CALJIC No. 8.66, which provides 

that to prove attempted murder, the People must establish “[a] 

direct but ineffectual act was done by one person towards killing 

another human being” and that “[t]he person committing the act 

harbored express malice aforethought, namely, a specific intent to 

kill unlawfully another human being.” (Italics added.) While in 

Langi, nothing in the record of conviction resolved any ambiguity 

created by CALJIC No. 3.01, here the jury’s findings that 

Gallardo was guilty of both second degree murder and attempted 

murder arising from the same shooting establishes the jury found 

Gallardo himself acted with express malice.

The decision in People v. Coley (2022) 77 Cal.App.5th 539

(Coley) is instructive. In Coley, two victims were walking along 

the highway when shots were fired from a car occupied by Coley 

and three other occupants, killing one of the victims. (Id. at 

p. 542.) The prosecution proceeded on a theory that Coley was 

the driver and another occupant was the shooter. (Ibid.) The 

jury was instructed on first degree murder, second degree 

murder, and attempted murder, among other offenses, but not 

felony murder or the natural and probable consequences doctrine. 

(Ibid.) The jury found Coley guilty of second degree murder and 

attempted murder. (Ibid.) In the appeal from an order denying 
12

his resentencing petition, Coley relied on Langi to argue the jury 

could have imputed implied malice to him to find that he aided 

and abetted second degree murder. (Coley, at pp. 546–547.) The 

court rejected Coley’s argument, reasoning that the record of 

conviction showed he “was convicted of murder based on his 

aiding and abetting of the same shooting that gave rise to the 

attempted murder conviction.” (Id. at p. 547.) As such, “by 

finding [Coley] guilty of attempted murder, the jury necessarily 

found he had personally harbored intent to kill or express malice 

when he aided and abetted the second degree murder.” (Ibid.)

Here, as in Coley, Gallardo was involved in a shooting from 

a motor vehicle resulting in a fatality. The record of conviction 

showed he was convicted of second degree murder based on his 

aiding and abetting of the same shooting that gave rise to his

attempted murder conviction. The jury was instructed that it 

must find Gallardo “harbored express malice aforethought, 

namely, a specific intent to kill” to convict Gallardo of attempted 

murder. It received no instruction on any theories of imputed 

malice. The jury returned a verdict finding Gallardo guilty of 

attempted murder and second degree murder. Thus, as in Coley, 

the jury’s finding of express malice for purposes of Gallardo’s 

attempted murder conviction indicates it necessarily found he 

acted with express malice in aiding and abetting the second 

degree murder.

Gallardo does not distinguish Coley from this case or 

disagree with its conclusion. Instead, he contends the trial court 

could not apply the Coley reasoning here without engaging in 

improper factfinding. Not so. The record of conviction includes 

jury verdicts, jury instructions, and closing arguments. (Harden,

supra, 81 Cal.App.5th at pp. 54–56; Ervin, supra, 72 Cal.App.5th 
13

at p. 106; Lopez, supra, 88 Cal.App.5th at pp. 576–577 & fn. 7

[finding the record conclusively established petitioner was guilty 

of first degree felony murder based in part on the “undisputed” 

evidence, including “both sides’ closing arguments,” that showed 

the murder occurred during a robbery].)

A review of the record of conviction alone reveals Gallardo 

was convicted of attempted murder and second degree murder 

based on his direct aiding and abetting of the same shooting—a 

single incident where shots were fired from Gallardo’s Mustang 

toward members of the Hummer group outside the club. In their 

closing arguments, both defense counsel and the prosecutor 

referred to a single shooting as the incident underlying all 

charges against Gallardo. The People argued to the jury that it 

could find Gallardo guilty of murder “because he shot the gun”

multiple times, and that the “direct but ineffectual act” for 

purposes of attempted murder “would be shooting the gun.” 

Gallardo’s counsel did not dispute this characterization of the 

underlying incident, stating explicitly during closing that he was 

“[n]ot telling [the jury] that the shots weren’t fired from the 

Mustang,” only that “we don’t know who fired the shots . . . .” 

There was no reference to a second shooting or other incident 

giving rise to different bases for the charges of murder and 

attempted murder. Accordingly, the parties’ closing arguments

identified only one action by Gallardo as “aiding and abetting” 

the shooting. The prosecution’s aiding and abetting theory 

involved Gallardo taking the gun from the trunk of his car,

“hand[ing] the gun” to “one of the other guys in the car” who 

ultimately committed the shooting. Gallardo’s counsel similarly

summarized the prosecution’s aiding and abetting theory: 
14

“[Gallardo] must have gone to the trunk. He must have gotten 

the gun. He must have given the gun to someone else.”

Because the convictions resulted from the same act—a 

single shooting incident using the gun Gallardo provided—the 

jury’s finding of express malice for Gallardo’s attempted murder 

conviction applies to the second degree murder conviction as well. 

(See People v. Young (1987) 189 Cal.App.3d 891, 910 [finding that 

because the requisite mens rea for first degree murder was 

express malice, “the jury necessarily found express malice on the 

attempted murders committed as part of a single, indivisible 

transaction”].)5 The trial court did not have to weigh conflicting 

evidence, engage in factfinding, make credibility determinations, 

or otherwise exercise discretion to arrive at this conclusion. 

(Lewis, supra, 11 Cal. 5th at pp. 971–972.) Moreover, Gallardo 

has not proposed that he would introduce any evidence to show 

the convictions did not arise from the same act, and Gallardo 

cannot use the process in section 1172.6 to “relitigate issues 

already decided.” (Coley, supra, 77 Cal.App.5th at p. 549.)

Because Gallardo cannot show he was convicted of second 

degree murder under a theory of imputed malice based solely on 

his participation in the crime, his petition fails to make a prima 

facie showing of his eligibility for resentencing under 

5 As explained by the court of appeal in People v. Moles

(1970) 10 Cal.App.3d 611, “were a defendant to shoot two men 

during a single incident, one of whom died, the basic criminal 

elements of the act, the shooting and the mental state, would be 

the same as to each simultaneous shooting; the fact of death 

would be but a manifestation of the seriousness of the result, not 

of the actor’s mental state when the act was committed.” (Id. at 

p. 616, italics added.)
15

section 1172.6 as a matter of law. We affirm the trial court’s 

denial of Gallardo’s petition.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

ADAMS, J.

We concur:

EDMON, P. J.

LAVIN, J.