Filed 9/23/24

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN LUIS GALLARDO,

Defendant and Appellant.

 D084179

 (Super. Ct. No. INF046168)

Appeal from an order of the Superior Court of Riverside County, John 

D. Molloy, Judge. Reversed and remanded with directions. 

James R. Bostwick, Jr., under appointment by the Court of Appeal, for 

Defendant and Appellant. 

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

Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. 

Sevidal, Seth Friedman, and James M. Toohey, Deputy Attorneys General, 

for Plaintiff and Respondent. 

INTRODUCTION

Juan Luis Gallardo appeals the trial court’s order denying his petition 

to vacate his conviction for attempted murder and be resentenced pursuant to 

Penal Code section 1172.6.1 He contends the trial court failed to conduct its 

1 Further unspecified statutory references are to the Penal Code. 
2

own assessment of whether he is eligible for relief under section 1172.6

because the record does not indicate the court reviewed the record of 

conviction in rendering its decision. The Attorney General urges us to 

conclude that any procedural error in the trial court’s review of Gallardo’s 

claim for relief is harmless because the jury instructions and verdict forms 

from Gallardo’s trial—records the trial court did not review—demonstrate he 

is precluded from relief as a matter of law. 

On the record before us, we conclude the trial court failed to adequately 

conduct the inquiry mandated by section 1172.6, subdivision (c). The goal of 

the vacatur and resentencing procedure in section 1172.6 is to ensure a 

person’s sentence is commensurate with their criminal culpability; this goal 

may not be accomplished without the trial court’s review of the record of 

conviction to determine a petitioner’s eligibility for relief. Without such a 

review, the trial court’s determination of the petitioner’s prima facie claim for 

relief is reduced to a perfunctory exercise. The burden is then placed on the 

appellate courts to review the trial court’s order for harmless error, which 

would, in this case, require us to review volumes of transcripts in the first 

instance. Section 1172.6 does not contemplate the appellate courts 

performing such a function, nor are the reviewing courts equipped to do so. 

Accordingly, we shall reverse the order denying Gallardo’s petition with 

directions to the trial court to conduct the requisite proceeding under 

section 1172.6, subdivision (c). 

FACTUAL AND PROCEDURAL BACKGROUND

In 2009, a jury convicted Gallardo of “two counts of robbery [(§ 211; 

counts 1 & 2)], one count of attempted willful, deliberate and premeditated 

murder (§§ 664/187, subd. (a); count 3), two counts of assault with a firearm 

(§ 245, subd. (a)(2); counts 6 & 7), one count of discharging a firearm at an 
3

occupied building (§ 246; count 9), one count of unlawful possession of a 

firearm (§ 12021, subd. (e); count 10), one count of unlawful possession of 

ammunition (§ 12316, subd. (b)(1); count 11), and one count of actively 

participating in a criminal street gang (§ 186.22, subd. (a); count 12).”2 (See 

People v. Gallardo (Oct. 27, 2010, D056520) [nonpub. opn.].) “[T]he court 

sentenced Gallardo to prison for a total of 90 years four months, consisting of 

an aggregate 21 year-four month determinate term and a 69-year-to-life 

aggregate indeterminate sentence.” (Ibid.) We affirmed the judgment in 

2010. (Ibid.) 

In October 2023, Gallardo filed a petition for resentencing pursuant to 

section 1172.6. The court set a “status conference” related to the petition, 

and a hearing took place on November 3, 2023. Gallardo was not present at 

the hearing, and the court appointed counsel to represent him. The record 

does not indicate that any briefing or documentary evidence was submitted 

by the prosecution or by Gallardo’s counsel. 

During the hearing, the following exchange took place between the 

prosecutor, Gallardo’s counsel, and the court:

“[Prosecutor]: I sent the instructions to [Gallardo’s counsel] 

on the 31st. Only direct aiding and abetting was given to 

the defendant. No other theory, including felony murder, 

natural and probable consequences, or any other by which 

malice could possibly be impeded [sic] to the defendant was 

given. I would ask that that petition be denied. 

“[Defense counsel]: I have confirmed that I read those 

instructions and that recitation is accurate. I’ll submit. 

2 We grant the Attorney General’s request for judicial notice of our prior 

unpublished opinion in Gallardo’s direct appeal solely for the purpose of 

reciting the procedural history of the case. (Evid. Code, §§ 452, 459; 

Pen. Code, § 1172.6, subd. (d)(3) [permitting consideration of the procedural 

history of a case as recited in the appellate opinion].) 
4

“[¶] . . . [¶] 

“[The Court]: Okay. The petition is denied.”

This appeal followed. 

DISCUSSION

Effective January 1, 2019, the Legislature enacted Senate Bill No. 1437 

(2017–2018 Reg. Sess.) (Senate Bill 1437) “ ‘to amend the felony murder rule 

and the natural and probable consequences doctrine, as it relates to murder, 

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).)” (People v. Lewis (2021) 11 Cal.5th 952, 

959 (Lewis).) Senate Bill 1437 also created a procedure that allows persons 

convicted under the former murder laws to petition for retroactive relief. 

(Stats. 2018, ch. 1015, § 4; People v. Strong (2022) 13 Cal.5th 698, 708 

(Strong).) In January 2022, Senate Bill No. 775 (2021–2022 Reg. Sess.)

clarified that the resentencing procedures in Senate Bill 1437 were applicable 

to persons convicted of attempted murder and manslaughter under certain 

circumstances. (Stats. 2021, ch. 551, § 1; People v. Coley (2022) 

77 Cal.App.5th 539, 548.) 

The section 1172.6 petition process “begins with the filing of a petition 

containing a declaration that all requirements for eligibility are met 

[citation], including that ‘[t]he petitioner could not presently be convicted of 

murder or attempted murder because of changes’ ” to the Penal Code made by 

Senate Bill 1437. (Strong, supra, 13 Cal.5th at p. 708; § 1172.6, subds. (a)(1)–

(a)(3).) When the trial court receives a petition satisfying the pleading 

requirements in section 1172.6, subdivisions (a)(1)–(3), the court must 

appoint counsel upon request. (Id., subd. (b)(3).) Then, within 60 days of 
5

service of the petition, the prosecution “shall file and serve a response.” (Id., 

subd. (c), italics added.) The trial court must then conduct a hearing to 

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

and issue an order to show cause if the petitioner has done so. (Ibid.; Strong,

at p. 708.) 

At the prima facie stage, the court may examine the record of 

conviction to assess the petitioner’s eligibility for relief, but it may not engage 

in factfinding, weigh the evidence, or assess credibility. (Lewis, supra,

11 Cal.5th at pp. 971–972.) The court must generally take the petitioner’s 

factual allegations as true, but it is not required to accept factual allegations 

that are refuted by the record of conviction. (Id. at p. 971.) The record of 

conviction includes documents from the petitioner’s jury trial like the jury 

instructions and verdict forms. (People v. Harden (2022) 81 Cal.App.5th 45, 

50 (Harden) [jury instructions and verdicts on which they were based 

supported denial of § 1172.6 petition].) The court may deny a petition at the 

prima facie stage only if “the petition and record in the case establish 

conclusively that the defendant is ineligible for relief” as a matter of law. 

(Strong, supra, 13 Cal.5th at p. 708, italics added.) We independently review 

the trial court’s decision to deny a section 1172.6 petition. (Harden, at p. 52.) 

Here, the record reflects the court set a “status conference” upon receipt 

of Gallardo’s petition for resentencing. Prior to the hearing, the prosecution 

did not submit the responsive briefing required by section 1172.6,

subdivision (c), and the record does not indicate the court reviewed any part 

of the record of conviction in rendering its decision. In fact, the record does 

not reflect the court reviewed any documentary evidence at all. Nonetheless, 

the court summarily denied the petition following the prosecution’s oral 
6

proffer that the jury instructions from Gallardo’s trial were based on a theory 

of direct aiding and abetting attempted murder. 

On this record, we conclude the court failed to adequately conduct the

proceedings required by section 1172.6, subdivision (c). Gallardo’s form 

petition included the necessary information to trigger a hearing under 

subdivision (c), but the court did not receive or review any briefing by the 

parties, nor did it review and consider the record of conviction. The 

representations by the parties were conclusory in nature, and we do not 

construe defense counsel’s agreement that the prosecution’s recitation of the 

jury instructions was “accurate,” to be a stipulation that Gallardo had not 

presented a prima facie claim for relief. In other words, the court could not 

have determined that the record of conviction conclusively established 

Gallardo was ineligible for relief as a matter of law because it does not appear 

that the court reviewed any aspect of the trial record. 

Nonetheless, the Attorney General asks this court to take judicial 

notice of the record from Gallardo’s direct appeal and conclude that any 

procedural error in the trial court’s evaluation of the section 1172.6 petition 

was harmless. The Attorney General contends the jury instructions and 

verdict forms from Gallardo’s trial demonstrate he was not convicted under 

the only theory of liability that would afford him relief—the natural and 

probable consequences doctrine—and therefore he is ineligible for relief as a 

matter of law. 

Although we recognize an order denying a section 1172.6 petition may 

be reviewable for harmless error (People v. Vance (2023) 94 Cal.App.5th 706, 

714), the Attorney General’s argument is, in effect, a request that we review 

the record to determine Gallardo’s eligibility for relief in the first instance. 

We decline to do so. In its prima facie review, the trial court was required to 
7

determine if the record of conviction conclusively established Gallardo was 

ineligible for relief as a matter of law. (Strong, supra, 13 Cal.5th at p. 708.) 

The parties did not submit briefing or any part of the record of conviction to 

the trial court, and therefore the court could not have conducted the review 

required by section 1172.6, subdivision (c). This court will not perform the 

trial court’s statutorily mandated task for the first time on appeal. Although 

our review of the order denying Gallardo’s petition is de novo, it is a canon of 

appellate review that we, as the reviewing court, are “neither authorized nor 

inclined to substitute our judgment for the judgment of the trial court.” (In re 

Marriage of Baker (1992) 3 Cal.App.4th 491, 498.) Accordingly, the request 

for judicial notice is denied.3 

We will not, however, direct the trial court to issue an order to show 

cause at this time, as Gallardo urges us to do in his briefing on appeal. The 

record does not demonstrate the trial court made an adequate determination 

of whether Gallardo made a prima facie claim for relief under section 1172.6, 

subdivision (c), or if he is ineligible for relief as a matter of law. Thus, under 

the circumstances, we conclude the appropriate remedy is reversal of the 

order denying the petition with directions to the trial court to perform its 

functions under section 1172.6, subdivision (c). We take no position on

whether the trial court should ultimately determine that Gallardo has made 

a prima facie claim for relief. 

3 Our decision is not to suggest it is inappropriate to take judicial notice 

of the record in a prior appeal on review of a Penal Code section 1172.6 

petition. (See e.g., People v. Burns (2023) 95 Cal.App.5th 862, 865, fn. 3 

[taking judicial notice of the record in a prior appeal on review of a petition 

under section 1172.6].) However, under the circumstances, we decline to do 

so because the record does not indicate the trial court reviewed or took 

judicial notice of any part of the record of conviction and we will not base our 

review entirely on evidence not considered by the trial court. 
8

DISPOSITION

The order is reversed. The matter is remanded for the trial court to 

conduct proceedings consistent with section 1172.6, subdivision (c). 

McCONNELL, P. J.

WE CONCUR:

DO, J.

KELETY, J.