People v. Galloway CA2/1

Filed 11/23/20 P. v. Galloway CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B303405, B303636

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA071844)

v. ORDER MODIFYING
OPINION AND DENYING
JAYVION TERRELL GALLOWAY, PETITION FOR REHEARING
(NO CHANGE IN JUDGMENT)
Defendant and Appellant.

THE COURT:
The opinion in the above-entitled matter filed on October
28, 2020 is modified as follows:

1. The following citations are deleted from page 13:
“People v. Drayton (2020) 47 Cal.App.5th 965, 975–976; People
v. Torres (2020) 46 Cal.App.5th 1168, 1177–1178, review
granted June 24, 2020, S262011.”
 2. On page 15, line 4, the words “meetings under
these conditions” are replaced with the words “appearances in
court” so the entire sentence now reads: After approximately
23 appearances in court before and during trial, the defendant
challenged the court’s jurisdiction to issue the order for the first
time on appeal.

3. In the last paragraph on page 15, the following
citation “(§ 1202.4, subd. (c); Stats. 2007, ch. 302, § 14, p. 3072
[version of statute in effect in 2008].)” is revised to read:

(§ 1202.4, subd. (c); accord, Stats. 2007, ch. 302, § 14, p. 3072
[version of statute in effect in 2008].)

These modifications do not constitute a change in the
judgment.
Appellant’s petition for rehearing filed on November 12,
2020 is denied.

____________________________________________________________
ROTHSCHILD, P. J. CHANEY, J. SINANIAN, J.*

*Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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Filed 10/28/20 P. v. Galloway CA2/1 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B303405, B303636

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA071844)

v.

JAYVION TERRELL GALLOWAY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Hector M. Guzman, Judge. Affirmed
(B303405). Dismissed (B303636).
William L. Heyman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
 In this opinion we address two separate appeals filed
by defendant and appellant Jayvion Terrell Galloway. In the
first appeal, Galloway challenges the trial court’s denial of his
petition under Penal Code section 1170.951 for resentencing
on his murder conviction. In 2011, a jury convicted Galloway
of murder for shooting and killing a victim in the course of
a robbery. The jury also found true a felony-murder special
circumstance. (§ 190.2, subd. (a)(17).) The trial court summarily
denied the petition on the ground that Galloway was the actual
killer, could still be convicted of murder, and was therefore
ineligible for resentencing under section 1170.95. Galloway
contends that the trial court erred by denying his petition
without first appointing counsel to represent him, and by relying
on the record of his conviction, including this court’s prior opinion
in the case, as a basis for denying the petition. We disagree and
affirm.
In the second appeal, Galloway contends that the trial
court erred by denying his motion to reduce his restitution fine.
We reject this claim as well and dismiss the appeal because the
trial court lacked jurisdiction to consider Galloway’s motion.

FACTS AND PROCEEDINGS BELOW
The facts of the case are discussed below as described
in our opinion in Galloway’s direct appeal (People v. Galloway
(June 8, 2012, B232165) [nonpub. opn.] (Galloway)). Galloway
was tried alongside codefendant Zecorey Lamont Marcus.

1 Subsequent statutory references are to the Penal Code.

2
 A. The Robbery of Pedro Guerrero in May 2008
“Anna Sanchez, a friend of defendants Galloway and
Marcus, testified that she drove defendants to a convenience
store in Gardena and waited for them in her car while they went
into the store to buy rolling papers for marijuana and orange
juice. After a short time, Galloway came out of the store and told
Sanchez to park her car across the street because he was going
to rob a man he had seen in the store cashing a check. Moments
after Sanchez moved her car, defendants came running toward
her. Galloway was holding a black revolver. Defendants jumped
into Sanchez’s car and Galloway told Sanchez: ‘Go, go, go.’
Sanchez drove away as Galloway handed the gun to Marcus in
the backseat. She asked them what happened ‘and they said
they robbed the man that was in the store cashing his check.’
Sanchez identified defendants from a surveillance video shot
from within the store.
“Pedro Guerrero testified that he went to a store in
Gardena to cash a check for $450.00. As he sat in his car,
putting away his money, two men walked up. One man pointed
a black gun at Guerrero’s head. ‘They told me to give them the
money or that they would kill me,’ Guerrero testified. Guerrero
gave the money to the man with the handgun. He did not
report the robbery to police because he was afraid but he told the
storekeeper about it. A week later the police located Guerrero
and showed him photographic lineups and he identified a
photograph of Galloway as the man who robbed him with a
handgun.” (Galloway, supra, B232165, at p. 2.)

B. The Murder of Hae Sook Roh in May 2008
“Five days after the Guerrero robbery, at approximately
6:45 p.m., Arthenia Thomas heard gunfire coming from the

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direction of a T-shirt shop in Gardena and saw two men running
from the shop and down the street toward a restaurant where she
lost sight of them. Her only description of the two men was that
they were wearing black ‘hoodies’ and had bandanas over their
faces. A few minutes later a silver four-door car drove ‘really fast’
out of the restaurant parking lot. Because the windows were
tinted, Thomas could not tell how many people were in the car.
Thomas testified that the car depicted in People’s exhibit 4 looked
like the car she saw leaving the parking lot.
“When the police responded to the shooting, they found the
body of Hae Sook Roh, who had worked at the T-shirt shop, lying
dead behind the counter near the cash register.
“The prosecution showed the jury an audio and video
recording from a surveillance camera in the T-shirt shop. The
video showed a black male with a gun in his left hand entering
the area in front of the cash register. The man wore white pants,
a long white T-shirt and an open waist-length jacket. He had
a white cloth tied across his face below his eyes. The bottom
left hand portion of the video showed the pant leg and shoe of
a second person. The audio portion of the tape contained the
voice of the man with the gun saying: ‘Give it up. Give it up.
Give me the money.’ A second voice said[,] ‘Give him the money’
and then the gunman fired at Roh saying, ‘Bitch. Give it up.’
He repeated[,] ‘Give it up’ and then shot Roh two more times,
grabbed the money from the register and ran. The gun was not
recovered. The take from the robbery-murder was approximately
$35.
“Sanchez testified that she was at Galloway’s house on
the day of the murder. When it started to get dark, Galloway
went to the trunk of his mother’s car and changed into basketball

4
shorts, a white T-shirt and waist-length jacket. He then began
waiting in front of the house. A gray Chevrolet Impala with
tinted windows pulled up in front of the house. Someone inside
the car opened the back door, and as Galloway got in, Sanchez
saw Marcus lean over. Sanchez identified the car shown in
the People’s exhibit 4 as the car she saw that evening. The
same car returned to Galloway’s house 20 to 30 minutes later
and Galloway got out. Sanchez observed that Galloway was
breathing heavily, his palms were sweating and he was acting
‘like he was nervous and scared.’ Galloway told her that ‘he
shot a lady at the T-shirt place.’ He ‘started laughing like it was
funny’ and said ‘the bitch wouldn’t die. So he just had to keep
shooting her.’ Sanchez asked Galloway why he shot the lady and
Galloway replied that he was mad because he wanted to rob the
store but ‘right before he walked in, she dropped the money [in
the floor safe] [a]nd so he shot her.’
“A few days later Galloway showed Sanchez a YouTube
video of the murder and robbery at the T-shirt shop. He laughed
again while he watched it. Sanchez recognized Galloway on the
video because he was wearing the same clothes he wore when
he left his mother’s house the evening of the murder. She also
recognized the gun in the video as the gun Galloway had used in
the robbery of Pedro Guerrero.” (Galloway, supra, B232165, at
pp. 3–4.)

C. The Defendants’ Custodial Statements
“After defendants were arrested, they were seated next
to each other on a bench in a hall of the jail. The bench had a
hidden recording device. The prosecution played the recording
of the defendants’ conversation to the jury. In that conversation
Galloway told Marcus that the police showed him a picture

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of Marcus inside the store just before the Guerrero robbery.
Marcus acknowledge[d] he [would] have to serve 15 years for
the robbery but told Galloway that if he got bailed out ‘I’m gone.’
Galloway told Marcus not to worry because he admitted the
robbery and told the police Marcus had nothing to do with it
and that he didn’t even know Marcus. Later in the conversation,
Galloway admitted his involvement in the murder. Marcus also
admitted being at the scene of the murder, noting that the video
showed him wearing the same shoes that he was wearing when
he was arrested.” (Galloway, supra, B232165, at p. 4.)

D. The Credibility of Sanchez
“Sanchez admitted she played a role in the robbery of
Guerrero, that she pleaded guilty to that crime, that she was
in custody at the time of her trial testimony and that she was
receiving lenient treatment in her sentencing in exchange for
her testimony against defendants. She also admitted that she
had previously been convicted of forgery and the unlawful taking
of a motor vehicle.
“Sanchez further admitted that she had been a regular
user of marijuana for six to nine months prior to the murder
of Roh; that she ‘smoke[d it] every day;’ and that she had
smoked marijuana just before the Guerrero robbery and was
feeling ‘mellow’ at the time. Sanchez testified that she smoked
a type of marijuana known as ‘Chronic’ which, she agreed, is a
‘particularly potent’ and ‘intense’ form of the drug. In addition
to smoking marijuana, Sanchez stated that on weekends she used
Ecstasy. ([This court took] judicial notice that the T-shirt robbery
and murder were not committed on a weekend.) She testified
that she stopped using any drugs after May 12, 2008, the date of
the robbery-murder.

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 “The defense called a forensic toxicologist who testified that
in his opinion someone who smoked Chronic every day over a six-
to nine-month period would suffer from confusion, delusion and
‘disoriented perception.’ ” (Galloway, supra, B232165, at p. 5.)

E. Sentencing and Post-Trial Proceedings
A jury convicted Galloway of one count of first degree
murder (§ 187, subd. (a)), and found true a felony-murder
special circumstance allegation (§ 190.2, subd. (a)(17)). The
jury also convicted him of two counts of robbery (§ 211) and one
count of illegal possession of a firearm (former § 12021, subd. (e)).
In addition to other firearm and gang enhancements, the jury
found that a principal personally and intentionally discharged
a firearm and proximately caused great bodily injury and death
to a victim. (§ 12022.53, subds. (d) & (e)(1).) The court imposed
a sentence of life without the possibility of parole for murder,
plus an additional 25 years to life for the firearm enhancement,
plus 26 years for robbery. The court also imposed a restitution
fine (§ 1202.4, subd. (b)) in the amount of $10,000, in addition
to $11,661.38 in victim restitution (§ 1202.4, subd. (f)). On
appeal, we struck the gang enhancements for lack of substantial
evidence, and reduced Galloway’s sentence by 10 years, but
we otherwise affirmed the judgment. (See Galloway, supra,
B232165, at p. 11.) Galloway did not contest the amount of
the restitution fine either before the trial court or on appeal.
In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which abolished
the natural and probable consequences doctrine in cases of
murder, and limited the application of the felony murder
doctrine. Under section 189, subdivision (e), as amended by
Senate Bill No. 1437, a defendant is guilty of felony murder

7
only if he actually killed the victim; directly aided and abetted
or solicited the killing, or otherwise acted with the intent to kill;
or “was a major participant in the underlying felony and acted
with reckless indifference to human life.” (§ 189, subd. (e)(3);
People v. Lamoureux (2019) 42 Cal.App.5th 241, 247–248.)
The legislation also enacted section 1170.95, which established
a procedure for vacating murder convictions for defendants who
would no longer be guilty of murder because of the new law and
resentencing those who were so convicted. (Stats. 2018, ch. 1015,
§ 4, pp. 6675–6677.)
Galloway filed a petition for resentencing on October 24,
2019. The trial court summarily denied the petition on the
ground that the record in the case showed that Galloway was
the actual killer, and he therefore, as a matter of law, was not
entitled to relief. On October 22, 2019, Galloway filed a motion
for modification of his sentence, arguing that the court had
erred when setting the amount of his restitution fine by failing
to take into consideration his ability to pay, and requesting
that the court reduce the amount of the fine to $200. The trial
court denied the motion on the grounds that Galloway could
earn enough money to pay the fine from wages earned in prison,
and that his conviction was already final at the time he filed the
motion.

8
 DISCUSSION
Galloway contends that the trial court erred by summarily
denying his petition without appointing counsel, and by relying
on the record in the case, including our prior opinion, as a ground
for denying the petition. We reject these arguments. Galloway
also contends that the trial court erred by denying his motion
to reduce the amount of his restitution fine. This claim fails
because the trial court lacked jurisdiction to decide the motion.

A. Background on Section 1170.95
Section 1170.95 allows a defendant serving a sentence
for felony murder who would not be guilty of murder because of
the new law to petition for resentencing. The statute requires
a defendant to submit a petition affirming that he meets three
criteria of eligibility: (1) He was charged with murder in a
manner “that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable
consequences doctrine” (§ 1170.95, subd. (a)(1)); (2) He “was
convicted of ” or pleaded guilty to “first degree or second degree
murder” (§ 1170.95, subd. (a)(2)); and (3) He “could not be
convicted of first or second degree murder because of changes
to Section 188 or 189 made effective” as a part of Senate Bill
No. 1437 (§ 1170.95, subd. (a)(3)). As described above, those
changes eliminated the natural and probable consequences
doctrine as a basis for murder liability, and added a requirement
for felony murder that a defendant must have been the actual
killer, acted with the intent to kill, or been a major participant
in the underlying felony and acted with reckless indifference to
human life.

9
 Upon receipt of a petition, the trial court first reviews
it to determine whether it is facially sufficient (see § 1170.95,
subd. (b)(2)), then reviews it to determine whether the petitioner
has made a prima facie case for relief. (§ 1170.95, subd. (c).)
If the petitioner meets this requirement, the court issues an
order to show cause and holds a hearing to determine whether
to vacate the murder conviction. (§ 1170.95, subd. (d)(1).)
At this final stage of the proceeding, the prosecution has the
burden of proving beyond a reasonable doubt that the petitioner
is ineligible for resentencing. (§ 1170.95, subd. (d)(3).)

B. The Trial Court Did Not Err by Denying
Galloway’s Petition Without Appointing
Counsel, or by Relying on the Record of
Conviction
Galloway contends that the trial court erred by denying
his petition without first appointing counsel to represent
him, and by considering documents in the record of conviction,
including our opinion in the direct appeal of his conviction, as
a basis for denying the petition. We disagree. As we explained
in People v. Lewis (2020) 43 Cal.App.5th 1128, review granted
March 18, 2020, S260598 (Lewis), the trial court employs a
two-step procedure for deciding whether a petitioner under
section 1170.95 has made a prima facie case. (See Lewis,
supra, 43 Cal.App.5th pp. 1139–1140; People v. Verdugo (2020)
44 Cal.App.5th 320, 327-332, review granted, Mar. 18, 2020,
S260493 (Verdugo).) First, the court may examine “documents
in the court file or otherwise part of the record of conviction
that are readily ascertainable” and “decide whether the petitioner
is ineligible for relief as a matter of law, making all factual
inferences in favor of the petitioner.” (Verdugo, supra, 44

10
Cal.App.5th at p. 329.) Only if the court determines that the
defendant has made a prima facie case under this standard does
the right to counsel attach. (Id. at pp. 332–333; Lewis, supra, 43
Cal.App.5th at pp. 1139–1140.) The court then obtains briefing
from both sides and decides whether the defendant has made a
prima facie case that he is entitled to relief. (Verdugo, supra,
at pp. 328–329.) This two-step procedure does not violate
the petitioner’s right to due process under the federal or state
constitution. (See People v. Frazier (Oct. 13, 2020, B300612)
___ Cal.App.5th ___ [2020 WL 6041867 at pp. *3–*5] [due process
right to counsel in a postconviction proceeding applies only after
the defendant has made a prima facie case].)
In this case, the trial court followed the procedure laid out
in Verdugo and Lewis and correctly denied Galloway’s petition on
the ground that he was ineligible for resentencing as a matter of
law. The jury found true a felony-murder special circumstance
(§ 190.2, subd. (a)(17)), which required the jury to find either
that Galloway was the actual killer, that he acted with the intent
to kill, or that he was a major participant in the robbery who
acted with reckless indifference to human life. (See § 190.2,
subds. (b)–(d); People v. Allison (Oct. 2, 2020, B300575)
___ Cal.App.5th ___ [2020 WL 5868095 at p. *4] (Allison).) These
are identical to the requirements for a felony murder conviction
under the newly revised section 189, subdivision (e). (See
Allison, supra, ___ Cal.App.5th ___ [2020 WL 5868095 at p. *4].)
Thus, the special circumstance finding shows as a matter of law
that Galloway could still be convicted under the law as revised by

11
Senate Bill No. 1437, and that he is ineligible for resentencing.2
(See ibid.)
In People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark), our Supreme Court
clarified its interpretation of the concepts of “major participant”
and “reckless indifference to human life.” In cases in which the
defendant was not the actual killer, courts have divided over
the question whether a defendant may challenge the validity of a
pre-Banks and Clark felony-murder special circumstance finding
in a petition under section 1170.95. (Compare Allison, supra,
___ Cal.App.5th ___ [2020 WL 5868095] and People v. Gomez
(2020) 52 Cal.App.5th 1, review granted Sept. 23, 2020, S264051
[rejecting § 1170.95 petitions for defendants with felony-murder
special circumstance findings] with People v. York (2020) 54
Cal.App.5th 250, pet. for review filed Oct. 13, 2020, S264954, and
People v. Smith (2020) 49 Cal.App.5th 85, review granted July 22,
2020, S262835 [reversing denials of section 1170.95 petitions in
cases involving felony-murder special circumstance findings].)

2 Galloway’s petition was facially defective in that he failed
to check a box on the petition form asserting that he could no
longer be convicted of murder because of changes to sections 188
or 189. In this circumstance, the statute provides that the trial
court “may deny the petition without prejudice to the filing of
another petition and advise the petitioner that the matter cannot
be considered without the missing information.” (§ 1170.95,
subd. (b)(2).) Galloway contends that we should infer from
the fact of his filing the petition that he believed he met all
the statutory requirements. We need not decide this question
because even if we deem the petition facially sufficient,
Galloway’s claims fail on the merits.

12
We reiterate our holding in Allison that such defendants are
ineligible for resentencing under section 1170.95, but Galloway’s
case is much simpler. As described in our opinion in Galloway’s
direct appeal, all the evidence at trial indicated that Galloway,
not Marcus, was Roh’s actual killer, and that this was the basis of
the jury’s special circumstance finding. Banks and Clark, which
did not call into question the validity of special circumstance
findings in cases in which the defendant actually killed the
victim, are irrelevant. Galloway is ineligible for resentencing
under section 1170.95 as a matter of law.
In People v. Cooper (2020) 54 Cal.App.5th 106, 117–124,
petition for review filed October 2, 2020, S264684 (Cooper),
the First Appellate District disagreed with Lewis and Verdugo
and held that all defendants who file a facially sufficient
petition under section 1170.95 are entitled to appointed counsel.
The facts of Galloway’s case are a good example of why every
other court that has examined the issue has reached the
opposite conclusion. (See, e.g., Lewis, supra, 43 Cal.App.5th at
pp. 1139-1140, review granted Mar. 18, 2020, S260598; Verdugo,
supra, 44 Cal.App.5th at pp. 327–332, review granted Mar. 18,
2020, S260493; People v. Tarkington (2020) 49 Cal.App.5th
892, 897, review granted Aug. 12, 2020, S263219; People v.
Edwards (2020) 48 Cal.App.5th 666, 673–674, review granted
July 8, 2020, S262481; People v. Drayton (2020) 47 Cal.App.5th
965, 975–976; People v. Torres (2020) 46 Cal.App.5th 1168,
1177-1178, review granted June 24, 2020, S262011.) Even
with counsel to represent him on appeal, Galloway has been
unable to call into question the accuracy of the court’s ruling.
He alleges that the trial court made two errors: first, by
describing Sanchez as a codefendant, and second, by minimizing

13
the importance of Sanchez’s testimony. The first error was a
minor misstatement—Sanchez pleaded guilty to the robbery of
Guerrero, but was not charged with murder or tried alongside
Galloway and Marcus. The second alleged error was an
argument for the jury, and indeed, Galloway’s trial counsel
argued that the jury should disbelieve Sanchez because she
was a drug user. By finding Galloway guilty and the special
circumstance true, the jury implicitly rejected this argument.
This is a sufficient basis for denying Galloway’s petition: “The
purpose of section 1170.95 is to give defendants the benefit
of amended sections 188 and 189 with respect to issues not
previously determined, not to provide a do-over on factual
disputes that have already been resolved.” (Allison, supra,
___ Cal.App.5th ___ [2020 WL 5868095 at p. *6].)

C. The Trial Court Lacked Jurisdiction over
Galloway’s Motion for a Modification of His
Sentence
Galloway filed a motion seeking a reduction of his
restitution fine in October 2019, more than seven years after
the judgment in his case became final. “Generally, once a
judgment is rendered and execution of the sentence has begun,
the trial court does not have jurisdiction to vacate or modify
the sentence. . . . Unless an exception to the general rule applies,
the trial court did not have jurisdiction to rule on his motion
and the appeal must be dismissed.” (People v. Torres (2020)
44 Cal.App.5th 1081, 1084.)
Galloway seeks to escape the application of this rule by
arguing that the trial court waived any jurisdictional issues by
deciding the motion. In support of this claim, he cites People v.
Delgado (2017) 2 Cal.5th 544, 558–559 (Delgado), in which our

14
Supreme Court held that a party may forfeit a challenge to a
court’s acts in excess of its jurisdiction by failing to object. In
Delgado, the trial court issued an order providing for correctional
officers to be present during meetings between the defendant and
his attorney in order to protect the attorney’s physical safety. All
parties agreed that the officers would be bound by attorney-client
privilege to keep secret the contents of the discussions. (Id. at
p. 558.) After approximately 23 meetings under these conditions
before and during trial, the defendant challenged the court’s
jurisdiction to issue the order for the first time on appeal. (Id. at
pp. 558–559.) The Supreme Court rejected the argument in part
because acts in excess of jurisdiction are subject to waiver and
forfeiture. (Ibid.) In this case, by contrast, nothing in the record
indicates that the prosecution acquiesced in the trial court’s
decision to rule on Galloway’s motion, or was even aware that the
trial court was planning to make a ruling. Galloway’s argument
implies that the trial court, by acting in excess of its jurisdiction,
waived any right by the prosecution to object to that action. That
is not the law.
Galloway also argues that general equitable principles
allowed the trial court to rule on Galloway’s motion despite
the jurisdictional issues. We disagree. The statute regarding
restitution fines has not changed in relevant part since the
court imposed the fine in 2011, nor since Galloway committed
the murder in 2008. Then, as now, the statute forbade the
sentencing court from considering the defendant’s ability to pay
as a reason not to impose a fine, but allowed the court to consider
inability to pay as a reason whether to “increas[e] the amount
of the restitution fine in excess of the minimum fine.” (§ 1202.4,
subd. (c); Stats. 2007, ch. 302, § 14, p. 3072 [version of statute in

15
effect in 2008].) There is no reason that Galloway could not have
made this same argument before the trial court at the time of
sentencing or in his original appeal. Furthermore, we disagree
that the equities favor Galloway’s position. Galloway was
convicted of murder and the restitution fine was imposed because
he shot and killed the cashier of a T-shirt store, apparently
because he was angry that she had put the money from the till
into a safe just before he robbed her. In this circumstance, a
$10,000 restitution fine is hardly excessive.

DISPOSITION
In Galloway’s appeal of the denial of his petition for
resentencing under section 1170.95 (case No. B303405), the trial
court’s order is affirmed. In his appeal of the denial of his motion
for reconsideration of his sentence (case No. B303636), the appeal
is dismissed.
NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.
We concur:

CHANEY, J.

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 SINANIAN, J.*

*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

17