Filed 9/16/26 P. v. Gallegos CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089970
Plaintiff and Respondent,
(Super. Ct. No. CF92464473)
v.
GILBERT GALLEGOS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Christopher J. Rench and
Anna J. Benham, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Levy, J. and Meehan, J.
Defendant Gilbert Gallegos pled guilty to second degree murder in 1992. He was
sentenced to an aggregate term of 16 years to life in state prison. He filed a petition for
resentencing, pursuant to former Penal Code section 1170.951 (now § 1172.6), based
upon the changes to the felony-murder rule and the natural and probable consequences
doctrine of aider and abettor liability effectuated by Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437). The trial court considered defendant’s statements at a
parole suitability hearing and determined that defendant was ineligible for relief because
he was the actual killer or was an aider and abettor with the intent to kill. On appeal,
defendant contends (1) the court prejudicially erred by considering his statements from
the parole suitability hearing, and (2) there was insufficient evidence to support the trial
court’s alternative conclusion that defendant aided and abetted the murder with the intent
to kill. We affirm.
PROCEDURAL SUMMARY
The District Attorney of Fresno County filed a complaint on May 19, 1992,
alleging defendant willfully, unlawfully, and with malice aforethought, murdered Eric
Delgado (§ 187). It was further alleged that defendant used a deadly weapon in the
commission of the murder (§ 12022, subd. (b)), and that the murder was committed for
the benefit of, at the direction of, and in association with a criminal street gang with the
specific intent to promote, further, and assist in criminal conduct by gang members
(§ 186.22, subd. (b)(1)).
Defendant entered a guilty plea to second degree murder on December 8, 1992,
and admitted the deadly weapon enhancement. The gang enhancement allegation was
dismissed. The trial court sentenced defendant to 15 years to life for second degree
murder, plus one year for the deadly weapon enhancement.
1 All further statutory references are to the Penal Code unless otherwise noted.
Former section 1170.95 was renumbered section 1172.6, with no change in text.
(Stats. 2022, ch. 58, § 10.) We refer to the current section 1172.6 in this opinion.
2.
On April 24, 2024, defendant filed a petition for resentencing under
section 1172.6. The trial court appointed counsel.
The trial court held an evidentiary hearing on June 10, 2025. At the hearing, the
court considered transcripts from the preliminary hearing and the parole hearing.2 The
court found defendant was ineligible for resentencing because it was proven beyond a
reasonable doubt that defendant was the actual killer or an aider and abettor who acted
with the intent to kill.
Defendant filed a notice of appeal on June 11, 2025.
FACTUAL SUMMARY3
Coroner’s Certificate and Autopsy Report
The coroner’s certificate and autopsy report of Delgado were admitted into
evidence. The coroner’s certificate showed that Delgado was stabbed five times in the
front of his torso and 11 times on the back of his torso, totaling 16 stab wounds. Delgado
died from stab wounds to the heart.
Parole Hearing Transcript
The Board of Parole Hearings held a hearing with defendant on October 13, 2005.
Defendant stated that he was with a group of people, including Richard Garza and Jessie
Garcia, when an argument broke out with another group. The argument then “escalated”
into a fight with both groups and “everybody started fighting.”
The commissioner asked defendant if he stabbed Delgado, and defendant stated
that he did. When asked how many times he stabbed Delgado, defendant stated “about
five or six” times. Defendant stated that the weapon he used was “a little switchblade
2 The trial court did not consider any hearsay testimony from the preliminary
hearing, which was admitted under section 872, subdivision (b).
3 Because defendant raises only legal issues and because we do not reach the issue
of prejudice, the facts underlying the offense are only minimally relevant and we provide
only a limited factual summary.
3.
knife” which was “about five inches” in length. Defendant noted he “was partly
responsible and could have been [the] one that you know––they say the fatal blow was to
the heart.”
DISCUSSION
Defendant contends the trial court prejudicially erred in denying his section 1172.6
petition because it relied on evidence erroneously admitted at the evidentiary hearing.
Specifically, he argues self-incriminating statements made during a parole hearing should
have been excluded as they were made involuntarily. He further contends that
insufficient evidence supported the trial court’s alternative finding that defendant was
ineligible for resentencing as an aider and abettor. We reject defendant’s contentions.
I. Senate Bill 1437
Effective January 1, 2019, Senate Bill 1437 “altered the substantive law of murder
in two areas.” (People v. Curiel (2023) 15 Cal.5th 433, 448.) First, the bill narrowed the
scope of the felony-murder rule “so that a ‘participant in the perpetration or attempted
perpetration of a [specified felony] in which a death occurs’ can be liable for murder only
if ‘[t]he person was the actual killer’; ‘[t]he person 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’; or ‘[t]he person
was a major participant in the underlying felony and acted with reckless indifference to
human life.’ ” (People v. Arellano (2024) 16 Cal.5th 457, 467–468, quoting § 189,
subd. (e)(1)–(3).) Second, the bill “eliminate[d] liability for murder as an aider and
abettor under the natural and probable consequences doctrine” by requiring that, “except
in cases of felony murder, ‘a principal in a crime shall act with malice aforethought’ to be
convicted of murder.” (Curiel, at p. 449, quoting § 188, subd. (a)(3).) Now, “ ‘[m]alice
shall not be imputed to a person based solely on his or her participation in a crime.’ ”
(Curiel, at p. 449.)
4.
Additionally, Senate Bill 1437 added section 1172.6 to provide a procedure for
those convicted of a qualifying offense “ ‘to seek relief’ where the two substantive
changes described above affect a defendant’s conviction.” (Curiel, supra, 15 Cal.5th at
p. 449.) Under section 1172.6, an offender seeking resentencing must first file a petition
in the sentencing court, and the sentencing court must determine whether the defendant
has made a prima facie showing that he or she is entitled to relief. (§ 1172.6, subds. (a)–
(c); accord, People v. Strong (2022) 13 Cal.5th 698, 708.) If the sentencing court
determines the defendant has made a prima facie showing, the court must issue an order
to show cause and hold a hearing to determine whether to vacate the murder conviction.
(§ 1172.6, subds. (c), (d)(1).)
At this evidentiary hearing, “the burden of proof shall be on the prosecution to
prove, beyond a reasonable doubt, that the petitioner is guilty of murder … under
California law as amended by the changes to [s]ection 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (d)(3).) “The admission of evidence in the hearing
shall be governed by the Evidence Code, except that the court may consider evidence
previously admitted at any prior hearing or trial that is admissible under current law,
including witness testimony, stipulated evidence, and matters judicially noticed. The
court may also consider the procedural history of the case recited in any prior appellate
opinion.” (Ibid.)
II. The Trial Court Did Not Err in Admitting the Parole Hearing Transcript
Defendant contends the court prejudicially erred in admitting the parole hearing
transcript at the evidentiary hearing. Specifically, he argues the parole hearing testimony
should have been excluded as involuntary due to the general “coercive nature of parole
hearings,” and further, because inmates should receive use immunity for testimony in
anticipation of and at parole hearings.
Use immunity is a judicial rule of evidence that effectuates the privilege against
self-incrimination. (People v. Coleman (1975) 13 Cal.3d 867, 875, 889.) In Coleman,
5.
the defendant was held to answer on grand theft charges that arose while he was on
probation. (Id. at p. 872.) A probation revocation hearing was scheduled for a date prior
to completion of the collateral criminal proceedings, and his motion to continue the
revocation hearing until after the completion of the criminal proceedings was denied. (Id.
at pp. 872–873.) The defendant elected not to testify in the probation revocation
proceedings, then appealed from the order revoking probation, arguing the revocation of
his probation in advance of trial “denied him procedural due process because he was
forced to forego his opportunity to testify in his own behalf at his revocation hearing in
order to avoid incriminating himself at his pending trial.” (Id. at p. 871; see id. at p. 873.)
The high court held that “the choice forced upon [the defendant] at his revocation hearing
was unnecessarily inconsistent with constitutional values” (id. at p. 872), and that a
defendant should not be forced to choose between the privilege against self-incrimination
at trial and the exercise of the right to be heard at the revocation hearing (id. at p. 878).
Accordingly, the court “declare[d] as a judicial rule of evidence that henceforth upon
timely objection the testimony of a probationer at a probation revocation hearing held
prior to the disposition of criminal charges arising out of the alleged violation of the
conditions of his probation, and any evidence derived from such testimony, is
inadmissible against the probationer during subsequent proceedings on the related
criminal charges, save for purposes of impeachment or rebuttal .…” (Id. at p. 889.)
As defendant concedes, multiple courts have rejected challenges to the
admissibility of parole hearing transcripts in section 1172.6 evidentiary hearings on
various grounds. (People v. Duran (2022) 84 Cal.App.5th 920; People v. Mitchell (2022)
81 Cal.App.5th 575; People v. Anderson (2022) 78 Cal.App.5th 81; People v. Myles
(2021) 69 Cal.App.5th 688.)
In Myles, the defendant argued, based on Coleman, that his parole hearing
transcript was inadmissible at a section 1172.6 evidentiary hearing because he was
entitled to use immunity for statements made in connection with his suitability for parole.
6.
(People v. Myles, supra, 69 Cal.App.5th at p. 704.) The Myles court declined to extend
Coleman to the section 1172.6 context. (Myles, at pp. 705–706.) The court noted that a
section 1172.6 evidentiary hearing is not a criminal trial, but an act of lenity in which the
wrongful admission of evidence does not violate a defendant’s constitutional rights under
the Fifth Amendment. (Myles, at pp. 705–706.) Furthermore, the defendant was not
required to testify at the parole hearing, inasmuch as “parole cannot be conditioned on
admission of guilt to a certain version of the crime.” (Id. at p. 706, citing § 5011,
subd. (b); Cal. Code Regs., tit. 15, § 2236; In re Swanigan (2015) 240 Cal.App.4th 1, 14;
and In re McDonald (2010) 189 Cal.App.4th 1008, 1023.) Furthermore, the parole
hearing testimony was not a product of government coercion, against which the
Fifth Amendment might apply, inasmuch as defendant was advised at the parole hearing
that she had the option to not discuss the commitment offense, and that choice would not
be held against her. “Having chosen to be truthful in the assessment interview and testify
truthfully at the parole hearing, it is not fundamentally unfair to admit that information
during a resentencing proceeding voluntarily initiated by defendant bearing on some of
the same issues.” (Myles, at p. 706.)
Numerous other cases have held that “incriminating statements made by a prisoner
during parole proceedings may be admitted at an evidentiary hearing under
section 1172.6, subdivision (d)(3) without violating the privilege [against
self-incrimination].” (People v. Hart (2025) 113 Cal.App.5th 1099, 1107 [collecting
cases].) In Anderson, the defendant similarly argued his statements made in relation to
parole suitability proceedings were entitled to use immunity (People v. Anderson, supra,
78 Cal.App.5th at p. 89), and that Myles was wrongly decided because Coleman was not
decided on constitutional grounds (id. at p. 91). The Anderson court acknowledged the
holding in Coleman was not dictated by the federal or state Constitution, but determined
the rule set forth in Coleman and its progeny extended only to circumstances in which “a
constitutional privilege against self-incrimination applied.” (Anderson, at p. 93.)
7.
Because this privilege did not apply in section 1172.6 resentencing proceedings, the court
held testimony from parole suitability proceedings could be considered. (Anderson, at
p. 93.)
In Mitchell, a majority of the court rejected the defendant’s argument that a parole
hearing transcript was improperly considered in his section 1172.6 proceedings.
(People v. Mitchell, supra, 81 Cal.App.5th at p. 586.) The majority held that it “would
contravene [the Legislature’s] goal of individualizing punishment for courts to blind
themselves to the individualized facts of the case” by excluding parole hearing
transcripts. (Id. at p. 587.) As with Myles and Anderson, the majority rejected the
defendant’s argument that Coleman required exclusion of the transcript, noting that
“[m]any constitutional protections that characterize burdensome criminal prosecutions …
do not apply in this ameliorative process,” including the right to counsel, right to trial by
jury, right against double jeopardy, and right against self-incrimination (id. at p. 588; see
id. at p. 589). Meanwhile, the dissent would have held that the use of the defendant’s
parole hearing testimony violated Coleman. (Mitchell, at p. 596 (dis. opn. of Stratton,
P. J.).) The dissent would have held that the evidentiary hearing is analogous in many
ways to a bench trial, which should proceed under the same rules as the initial trial, and
that the Legislature had granted defendants a right against self-incrimination under
section 1172.6. (Mitchell, at pp. 603–604 (dis. opn. of Stratton, P. J.).) Additionally, the
dissent would have held that use of parole board statements lessens the People’s burden
of proof and is fundamentally unfair, whereas prohibiting consideration of such
statements would permit “defendants to fully exercise two competing rights without
prejudice to either one.” (Id. at p. 604.)
Defendant urges us to ignore the foregoing authority and to follow the dissent in
Mitchell. We perceive no reason to do so. Defendant provides no compelling
justification for deviating from the holding that the Fifth Amendment privilege against
self-incrimination does not apply to the section 1172.6 evidentiary hearing, and his
8.
arguments merely reiterate the principles articulated in the Mitchell dissent, which no
published majority opinion has adopted. Accordingly, we join other courts that have
considered this issue and hold the trial court did not err in admitting defendant’s parole
hearing testimony at the section 1172.6 evidentiary hearing. We therefore decline to
address the parties’ arguments regarding whether the admission of this testimony was
harmless.
III. Substantial Evidence Supports The Trial Court’s Alternative Finding
In addition to finding defendant was the actual killer, the trial court also found
defendant aided or abetted the commission of the murder with the intent to kill.
Defendant contends insufficient evidence supported this finding. The People disagree, as
do we.
On appeal from a denial of relief following an evidentiary hearing under
section 1172.6, subdivision (d), we review the trial court’s findings for substantial
evidence. (People v. Reyes (2023) 14 Cal.5th 981, 988.) “Under this standard, ‘we
review the record “ ‘ “in the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence which is reasonable, credible,
and of solid value—such that a reasonable trier of fact” ’ ” ’ could find beyond a
reasonable doubt that [the defendant] acted with reckless indifference.” (People v.
Emanuel (2025) 17 Cal.5th 867, 885.)
“For a defendant to be liable as a direct aider and abettor, ‘the prosecution must
show that the defendant aided or encouraged the commission of the murder with
knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of
committing, encouraging, or facilitating its commission.’ ” (In re Lopez (2023)
14 Cal.5th 562, 579.) “ ‘Among the factors which may be considered in making the
determination of aiding and abetting are: presence at the scene of the crime,
companionship, and conduct before and after the offense.’ ” (People v. Nguyen (2015)
61 Cal.4th 1015, 1054.)
9.
Contrary to defendant’s claim, substantial evidence supports the trial court’s
finding that defendant directly aided and abetted the murder with the intent to kill.
Defendant stated at his parole hearing that he used a five-inch switchblade knife during a
group fight and stabbed Delgado with the knife about five or six times. Further,
defendant stated that he may have dealt the fatal blow to Delgado by stabbing him in the
heart. From this, a finder of fact could reasonably have concluded beyond a reasonable
doubt that defendant had the intent to kill Delgado. Thus, even if he was not the actual
killer, there was overwhelming evidence in the record supporting that defendant directly
aided and abetted the murder with the intent to kill.
On this record, the evidence was sufficient to demonstrate that defendant directly
aided and abetted the murder with the intent to kill.
DISPOSITION
The order denying defendant’s petition for resentencing under section 1172.6 is
affirmed.
10.