Filed 8/5/26 P. v. Gallegos CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B343705
Plaintiff and Respondent,
(Los Angeles County
v. Super. Ct. No. XEAKA064641)
ERNESTO RAFAEL GALLEGOS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Jacqueline Lewis, Judge. Affirmed.
Jake E. Stanton, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Charles Chung,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
Ernesto Rafael Gallegos appeals the trial court’s order
resentencing him pursuant to Penal Code section 1172.75.1 He
argues the court should not have reimposed the upper term
sentence on count 1. We affirm.
BACKGROUND2
In 2006, Gallegos pled no contest to four counts of
second degree robbery (see § 211; counts 1, 6, 7 & 8), including
the allegations as to each count that he personally used a firearm
(§ 12022.53). He also admitted as true the two prior prison term
allegations under section 667.5, subdivision (b).
In accordance with the parties’ plea agreement, the trial
court sentenced Gallegos to 30 years, comprising: the upper term
of five years on count 1 plus 10 years for the firearm
enhancement; consecutive terms of one year (one-third the
midterm) on counts 6, 7, and 8, plus three years four months for
each corresponding firearm enhancement; and consecutive terms
of one year for each of the two prior prison term enhancements,
commonly known as prison priors.
In 2023, Gallegos was identified by the Department of
Corrections and Rehabilitation as potentially eligible for
resentencing pursuant to section 1172.75, subdivision (a).
(See id., subd. (b).) Gallegos’s appointed counsel moved for full
resentencing, arguing his prison priors were invalid (see § 667.5,
subd. (b)) and the firearm enhancements should be dismissed in
the interest of justice (see §§ 1385, 12022.5, subd. (c)).
1 Undesignated statutory references are to the Penal Code.
2 Because the facts of Gallegos’s underlying offenses are not
relevant to the issues presented in this appeal, we omit them.
(See People v. Mendez (2021) 69 Cal.App.5th 347, 351, fn. 2.)
2
The People agreed with dismissal of the prison priors but
took the position Gallegos’s sentence should otherwise remain
unchanged. Among other things, the People argued the trial court
could reimpose the upper term on count 1 because Gallegos had
originally been sentenced as such (see § 1172.75, subd. (d)(4)),
and it should retain the firearm enhancements.
At a hearing in December 2024, the trial court recalled
Gallegos’s sentence and struck the two prison priors. It
resentenced Gallegos to 28 years, leaving the rest of his original
sentence the same—including the firearm enhancements and the
upper term of five years on count 1.
Gallegos timely appealed. (§ 1237, subd. (a); Cal. Rules of
Court, rule 8.308(a).)
DISCUSSION
Gallegos argues the trial court erred in reimposing the
upper term on count 1 because the court did not determine there
were aggravating circumstances according to section 1170,
subdivision (b)(2). He claims that violated the statutory
framework governing resentencing proceedings and the
Sixth Amendment to the United States Constitution. (See People
v. Lynch (2024) 16 Cal.5th 730, 768; § 1172.75, subd. (d)(2).)
The People argue section 1172.75, subdivision (d)(4) authorized
the court to reimpose the upper term because the upper term had
previously been imposed at Gallegos’s original sentencing.
(See § 1172.75, subd. (d)(4).)
The parties recognize our fellow Courts of Appeal have
reached different conclusions on whether a trial court may
reimpose an upper term in these circumstances. (Compare People
v. Brannon-Thompson (2024) 104 Cal.App.5th 455, 466–467
(Brannon-Thompson) [§ 1172.75, subd. (d)(4) created an exception
to the factfinding requirements of § 1170, subd. (b) when the
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upper term was originally imposed]; People v. Dozier (2025)
116 Cal.App.5th 700, 715 [same], review granted Feb. 11, 2026,
S294597; People v. Mathis (2025) 111 Cal.App.5th 359, 371–374
[same], review granted Aug. 13, 2025, S291628; People v. Lua
(2026) 121 Cal.App.5th 472, 476 [same]; with People v. Gonzalez
(2024) 107 Cal.App.5th 312, 330 (Gonzalez) [§ 1172.75,
subd. (d)(4) allows reimposition of the upper term only when
“aggravating factors [are] stipulated to by the defendant or
proven beyond a reasonable doubt to the trier of fact”].) Our
Supreme Court has granted review “to decide whether
section 1172.75, subdivision (d)(4) allows the superior court to
reimpose the upper term where the defendant did not stipulate
to, and a factfinder did not find true beyond a reasonable doubt,
the facts underlying one or more aggravating circumstances.”
(Dozier, at p. 714, fn. 13; see also People v. Eaton (Mar. 14, 2025,
C096853) [nonpub. opn.], review granted May 14, 2025, S289903.)
We need not reach the merits of that issue here because
Gallegos forfeited his challenge to the upper term.
I. Gallegos Forfeited His Argument Regarding the
Upper Term
Gallegos concedes his counsel did not argue against
reimposition of the upper term at resentencing, and he
acknowledges that would ordinarily result in forfeiture of the
argument on appeal. (See People v. Saunders (1993) 5 Cal.4th
580, 589–590.) Here, Gallegos was resentenced nearly three years
after the amendments to section 1170 took effect on January 1,
2022. (See Stats. 2021, ch. 731, § 1.3.) However, he urges us to
excuse his forfeiture because the law was “so unsettled” at the
time of his resentencing, “reasonable minds could differ as to the
appropriateness of an objection.” We disagree.
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Gallegos relies upon cases in which a party’s failure to
make an argument in the trial court was excused because the law
was clarified after the trial proceedings. (See In re Gladys R.
(1970) 1 Cal.3d 855, 861; People v. Haston (1968) 69 Cal.2d 233,
256, fn. 28; see also People v. Ruiz (1990) 222 Cal.App.3d 1241,
1246 [remanding for new hearing after law was clarified].) But
Gallegos has not pointed to any clarification that occurred after
his resentencing hearing. On the contrary, Gonzalez, supra,
107 Cal.App.5th 312, the primary case upon which Gallegos
relies for his argument here, was issued a week before his
hearing.
Thus, Gallegos forfeited his argument the resentencing
court could not reimpose the upper term on count 1. (See
Brannon-Thompson, supra, 104 Cal.App.5th at pp. 464–465.)
II. Gallegos Has Not Demonstrated He Received
Ineffective Assistance of Counsel
Gallegos further argues we should exercise our discretion to
consider his argument about the upper term on its merits to
foreclose a later habeas petition based on ineffective assistance of
counsel. (See People v. Torres (2025) 113 Cal.App.5th 88, 92.) We
decline to do so.
Instead, we consider his ineffective assistance of counsel
claim. To prevail, Gallegos “bears the burden of showing by a
preponderance of the evidence that (1) counsel’s performance was
deficient because it fell below an objective standard of
reasonableness under prevailing professional norms, and
(2) counsel’s deficiencies resulted in prejudice.” (People v. Centeno
(2014) 60 Cal.4th 659, 674 (Centeno).) “On direct appeal, a
conviction will be reversed for ineffective assistance only if (1) the
record affirmatively discloses counsel had no rational tactical
purpose for the challenged act or omission, (2) counsel was asked
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for a reason and failed to provide one, or (3) there simply could be
no satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in habeas corpus
proceedings.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Gallegos points out his counsel’s motion for resentencing
once incorrectly stated his original sentence on count 1 was the
“mid term of 5 years,” and he argues that indicates “counsel may
not have been aware” he had received an upper term. According
to Gallegos, “counsel would have been ineffective for failing to
object if under the misimpression that five years was not the
high term.” But speculation about counsel’s possible
understanding of the facts does not demonstrate counsel’s
performance was deficient. (See People v. Williams (1988)
44 Cal.3d 883, 933 [“[a] factual basis, not speculation,” is
required].)
A review of the entire record does not support Gallegos’s
argument counsel was confused about his original sentence. The
People’s opposition discussed Gallegos’s upper term on count 1
and argued it should be reimposed, and the resentencing court
stated Gallegos “was given a high term at the time of the original
sentencing, and therefore, the court will continue to do so.”
Gallegos’s counsel did not object or seek clarification, which
suggests counsel was not confused. Moreover, the record does not
affirmatively disclose counsel’s reasons for not arguing against
reimposition of the upper term, let alone indicate it was because
of confusion. On this record, Gallegos has not shown his counsel’s
performance was deficient.
Gallegos also failed to argue he was prejudiced by counsel’s
purported deficiencies, which is required to demonstrate
ineffective assistance. (See Centeno, supra, 60 Cal.4th at p. 674
[prejudice is “a ‘reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have
been different’ ”]; Pfeifer v. Countrywide Home Loans, Inc. (2012)
211 Cal.App.4th 1250, 1282 [we “ ‘will not develop the appellants’
arguments for them’ ”].)
We therefore reject Gallegos’s ineffective assistance of
counsel claim.
DISPOSITION
The order is affirmed.
RICHARDSON, J.
WE CONCUR:
LUI, P. J.
CHAVEZ, J.
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