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March 19, 2026 Get Citation Alerts Download PDF Add Note

People v. Garamallo CA5

California Court of Appeal

• Citations: None known
• Docket Number: F087588

• Precedential Status: Non-Precedential

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (7.6K)

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Combined Opinion

Filed 3/19/26 P. v. Garamallo CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT

THE PEOPLE,
F087588
Plaintiff and Respondent,
(Super. Ct. No. CR1377)
v.

LOWELL A. GARAMALLO, OPINION
Defendant and Appellant.

THE COURT*
APPEAL from an order of the Superior Court of Tuolumne County. Kevin M.
Seibert, Judge.
Arthur L. Bowie, 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, Amanda D. Cary and Ian
Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

• Before Hill, P. J., Franson, J. and Harrell, J. INTRODUCTION Appellant and defendant Lowell A. Garamallo (defendant) was sentenced on multiple felony convictions pursuant to the Three Strikes law in 1996, which included prior prison term enhancements. In 2023, defendant was resentenced under Penal Code1 section 1172.75. The trial court struck his now-invalid prior prison term enhancements but declined to resentence him under the Three Strikes Reform Act (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2021)) (Reform Act). On appeal, defendant claims he was entitled to a full resentencing under the current Three Strikes law because several of his three strike offenses no longer qualify. The People agree that defendant’s case should be remanded for the court to exercise its discretion and consider his Three Strikes offenses in accordance with the recent Supreme Court decision in People v. Superior Court (Guevara) (2025) 18 Cal.5th 838 (Guevara). We agree and remand for the trial court to exercise its discretion in accordance with Guevara. PROCEDURAL SUMMARY2 In 1996, defendant was convicted of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 1), sexual battery (§ 243.4, subd. (a); count 2), two counts of assault with the intent to commit a felony (§ 220; counts 3 & 12), furnishing a controlled substance to a minor (Health & Saf. Code, § 11380, subd. (a); count 4), two counts of furnishing marijuana to a minor (Health & Saf. Code, § 11361, subd. (b); counts 7 & 10), unlawful sexual intercourse (§ 261.5, subd. (c); count 8), oral copulation with a person under the age of 18 (former § 288a, subd. (b)(1); count 9) and committing a lewd act on a child (§ 288, subd. (a); count 11). Defendant’s sentence was

1 Hereinafter, undesignated statutory references are to the Penal Code.
2 The facts of the underlying offense are not relevant to the issue on appeal and are
therefore, intentionally omitted.

2.
enhanced by three prior prison term enhancements (former § 667.5, subd. (b)), a prior
serious felony enhancement (§ 667, subd. (a)(1)), and three prior strike allegations
(former §§ 667, subds. (b)–(i), 1170 (a)–(d)) from 1983, 1987 and 1991. The trial court
sentenced defendant to an aggregate term of 213 years to life in prison.
In 2023, the trial court ordered a resentencing hearing pursuant to Senate Bill
No. 483 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 728, §§ 1, 3). Defendant filed a letter
brief asking the court to strike his three now-invalid prior prison term enhancements
(§ 667.5, subd. (b)). Because he was entitled to a full resentencing under
section 1172.75, defendant asked the court to exercise its discretion to dismiss his 1983
strike under Romero3 and section 1385 or to resentence him under the Reform Act
contending counts 1, 7, 8, 9, and 10 no longer met the requirements and he could no
longer be sentenced to an indeterminate term on those counts. Additionally, defendant
asked the court to exercise its discretion to dismiss his five year prior serious felony
enhancement under section 667, subdivision (a)(1) pursuant to Senate Bill No. 81 (2021–
2022 Reg. Sess.).
The prosecutor filed a response acknowledging defendant’s prior prison term
enhancements should be stricken but opposing any further relief. The prosecutor cited
rule violations defendant incurred while in prison, which were four instances related to
possession of a cell phone and one instance of manufacturing pruno.
At the hearing, the trial court stated that “[w]ith regard to resentencing under
[Proposition] 36, … [s]ection 1170.126, [defendant’s] time to make those requests
expired on November 7, 2014, more than nine years ago, and … the [c]ourt has not been
provided any legal or other justification for the delay in making this request.” It
concluded Senate Bill No. 483 did not revive the long-expired relief that was available
under Proposition 36 and denied the motion on this basis. The court struck the three prior

3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

3.
prison term enhancements but declined to exercise its discretion to strike defendant’s
prior strike, dismiss the prior serious felony enhancement, or resentence defendant under
the current Three Strikes law.
Appellant filed an appeal.
DISCUSSION
The Trial Court Erroneously Concluded it Was Precluded From Resentencing
Defendant on His Three Strike Sentences in a Section 1172.75 Resentencing.
Standard of Review
Generally, a trial court’s discretionary decision whether to dismiss or strike a
sentencing allegation or enhancement is reviewed for an abuse of discretion. (People v.
Carmony (2004) 33 Cal.4th 367, 373; accord, People v. Williams (1998) 17 Cal.4th 148,
159.) “ ‘ “[T]he burden is on the party attacking the sentence to clearly show the
sentencing decision was irrational or arbitrary.” ’ ” (Carmony, at p. 376.)
However, a trial court’s discretion must be “ ‘guided and controlled by fixed legal
principles’ ” and “ ‘exercised in conformity with the spirit of the law.’ ” (People v.
Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) “A trial court abuses its discretion
when it applies the wrong legal standards applicable to the issue at hand.” (Paterno v.
State of California (1999) 74 Cal.App.4th 68, 85.) Additionally, “an erroneous
understanding by the trial court of its discretionary power is not a true exercise of
discretion.” (People v. Marquez (1983) 143 Cal.App.3d 797, 803.)
“ ‘Defendants are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court.’ ” (People v. Gutierrez (2014) 58 Cal.4th
1354, 1391 (Gutierrez).) A trial court that misunderstands the scope of its sentencing
discretion cannot be said to have properly exercised that discretion. (Ibid.; accord,
People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) In such circumstances, the
appropriate remedy is to remand for resentencing unless the record clearly indicates the

4.
court would have reached the same conclusion “even if it had been aware that it had such
discretion.” (Gutierrez, at p. 1391; Belmontes, at p. 348, fn. 8.)
Applicable Law
“[T]he Three Strikes initiative, as well as the legislative act embodying its terms,
was intended to restrict courts’ discretion in sentencing repeat offenders.” (People v.
Superior Court (Romero), supra, 13 Cal.4th at p. 528.) Under the original Three Strikes
law, a defendant with two or more prior serious or violent felony convictions would be
sentenced to a life term for a current felony conviction even if the current conviction was
not a serious or violent felony. (Former §§ 667, subd. (e)(2)(A), 1170.12,
subd. (c)(2)(C).) Unless the trial court articulated reasons why the defendant fell outside
the Three Strikes scheme, the law excluded discretionary choice; establishing
requirements to be applied in every case. (People v. Carmony, supra, 33 Cal.4th at
p. 377.)
In 2012, the Reform Act was enacted under Proposition 36, amending the law to
reduce the punishment prescribed for certain Three Strikes offenders. (See People v.
Conley (2016) 63 Cal.4th 646, 651.) Under the Reform Act, a defendant with two or
more prior serious or violent felony convictions, whose current conviction is for a
nonserious or nonviolent felony, receives a doubled sentence rather than a life sentence,
unless certain disqualifying factors were proven. (§§ 667, subd. (e)(2)(C), 1170.12,
subd. (c)(2)(C).) Within two years of the effective date of the Reform Act, a person
currently serving a life sentence pursuant to the Three Strikes law for a nonserious or
nonviolent felony was permitted to petition for resentencing. (§ 1170.126, subd. (b).) If
the petitioner satisfied the criteria for resentencing, the petitioner was resentenced as a
second strike offender with a doubled term, “unless the court, in its discretion, determines
that resentencing the petitioner would pose an unreasonable risk of danger to public
safety.” (§ 1170.126, subd. (f); see Conley, at p. 651.)

5.
Effective January 1, 2020, Senate Bill No. 136 (2019–2020 Reg. Sess.) (Stats.
2019, ch. 590, § 1) amended section 667.5 by limiting the prior prison term enhancement
to prior terms for sexually violent offenses. (See Guevara, supra, 18 Cal.5th at p. 852.)
Effective January 1, 2022, Senate Bill No. 483 codified section 1172.75 (former
§ 1171.1), which set forth the resentencing procedure, and applied retroactively to
persons currently serving a term for a judgment that includes such prison priors.
“[W]here a now-invalid enhancement was imposed, ‘the court shall recall the sentence
and resentence the defendant.’ ” (§ 1172.75, subd. (c); see Guevara, at p. 852.) “The
statute directs that the resentencing ‘court shall apply the sentencing rules of the Judicial
Council and apply any other changes in law that reduce sentences or provide for judicial
discretion so as to eliminate disparity of sentences and to promote uniformity of
sentencing.’ ” (§ 1172.75, subd. (d)(2); see Guevara, at pp. 852–853.)
Analysis
Defendant argues that because he was entitled to a full resentencing under
section 1172.75, the trial court erred when it determined it could not resentence defendant
on his Three Strikes sentences since relief under section 1170.126 had expired. The
prosecution conceded the trial court erred, relying on our Supreme Court’s recent case in
Guevara. The prosecution acknowledged the court was not aware of its sentencing
discretion and therefore, the matter should be remanded for the court to exercise its
discretion as set forth in Guevara. We agree.
In Guevara, the defendant was convicted in 2009 of felony corporal injury to a
coparent (§ 273.5, subd. (a)) and misdemeanor child endangerment (§ 273a, subd. (b))
and admitted two prior strike convictions within the Three Strikes law and three prior
prison terms (§ 667.5, subd. (b)). (Guevara, supra, 18 Cal.5th at p. 853.) The defendant
was sentenced to 25 years to life for the felony, plus three years for the three prior prison
terms. (Ibid.) In 2023, the Department of Corrections and Rehabilitation identified the
defendant as a person in their custody serving a term that included a now-invalid prior

6.
prison term enhancement. (Id. at p. 853; see § 1172.75, subd. (b).) Because the
defendant was entitled to a full resentencing under section 1172.75, he sought to have the
benefits of the Reform Act applied to his Three Strikes indeterminate sentence, which
should now be doubled. (Guevara, at p. 853.) The prosecution argued that “to the extent
section 1172.75 required setting aside the third strike sentence, it unconstitutionally
amended section 1170.126.” (Ibid.) The trial court resentenced the defendant under the
current Three Strikes law and doubled the term for the felony count. (Ibid.) The court of
appeal reversed, with the majority concluding “the trial court’s interpretation of
section 1172.75 unconstitutionally amended the [Three Strikes] Reform Act” when it
failed to determine whether the defendant’s release would pose an unreasonable risk of
danger to public safety. (Id. at p. 854.)
However, our Supreme Court concluded that permitting recall and resentencing of
indeterminate sentences in a section 1172.75 hearing does not unconstitutionally amend
section 1170.126. (Guevara, supra, 18 Cal.5th at p. 855.) First, it noted
section 1170.126, subdivision (k), permits resentencing of defendants subject to
section 1170.126 by some alternative means and is, therefore, not the exclusive remedy
for nonserious, nonviolent Three Strikes offenders. (Guevara, at pp. 858–861.) Under
section 1170.126, subdivision (k), defendants entitled to seek relief under
section 1170.126 may access “ ‘rights or remedies otherwise available.’ ” (Guevara, at
p. 863.)
Guevara next determined that permitting recall and resentencing of Three Strikes
indeterminate sentences under section 1172.75 does not unconstitutionally amend
section 1170.126 but rather, incorporates the public safety determination requirements of
section 1170.126 into the resentencing process. (Guevara, supra, 18 Cal.5th at pp. 861,
869.) Accordingly, when a Three Strikes defendant is resentenced under section 1172.75,
the trial court must determine whether resentencing them on their Three Strikes sentences

7.
under the revised penalty provisions of the Reform Act would pose an unreasonable risk
of danger to public safety. (Guevara, at p. 878.)
Guevara also rejected the argument that the two-year deadline under
section 1170.126 was intended as a critical limitation on relief. (Guevara, supra, 18
Cal.5th at p. 871.) It concluded the deadline in the Reform Act is most naturally
understood as a procedural deadline for filing petitions under section 1170.126 itself.
Therefore, the defendants need not satisfy the two-year deadline to seek relief under
section 1172.75. (Guevara, at p. 874.)
Applying Guevara to the present case, the trial court erred when it mistakenly
believed it could not resentence defendant on his Three Strikes offenses under the
Reform Act on the sole ground such relief had expired. Since Guevara concluded the
procedural deadline under section 1170.126 is not applicable when seeking relief under
section 1172.75, the court erred when it declined to reconsider his Three Strikes
sentences on this basis.
When a trial court sentences a defendant while unaware of the full scope of its
sentencing discretion, remand is required for the court to properly exercise that discretion
unless the record clearly indicates the court would have reached the same conclusion had
it been aware of the scope of its discretion. (Gutierrez, supra, 58 Cal.4th at p. 1391.)
The record here shows the sentencing court was not aware of the full scope of its
sentencing discretion when it concluded that defendant was unable to obtain relief under
the Reform Act at his section 1172.75 hearing. Consequently, defendant was not
afforded this analysis at his resentencing hearing.
Nor does the record clearly indicate that the trial court would have found that
resentencing defendant would pose an unreasonable risk to public safety under
section 1170.126, had it been aware of the scope of its discretion. (Gutierrez, supra, 58
Cal.4th at p. 1391.) Defendant’s offenses are remote. He was sentenced in 1996, almost
30 years ago. And defendant’s prior strike offenses are even further back, in 1983, 1987

8.
and 1991. While the prosecution proffered evidence that defendant had several rule
violations in prison, they are nonviolent violations for possessing a cell phone and
making pruno.
While the trial court found it was not in the interests of justice to strike his prior
strike conviction or to dismiss the prior serious felony enhancement, neither of those
determinations required the court to find that defendant’s release would pose an
unreasonable risk of danger to public safety, as would be required to decline resentencing
under the revised provisions of the Reform Act. (Guevara, supra, 18 Cal.5th at p. 854.)
Given the different standards, the court’s determination not to strike a prior strike under
Romero and not to dismiss a section 667, subdivision (a) enhancement under
section 1385, subdivision (c) does not make it clear that the court would find it poses an
unreasonable risk to resentence defendant under the revised penalty provisions of the
Reform Act.
Accordingly, we must remand the case to the trial court for its determination on
whether resentencing defendant under the revised penalty provisions of the Reform Act
would “ ‘pose an unreasonable risk of danger to public safety.’ ” If so, the court shall
reimpose the indeterminate term. (Guevara, supra, 18 Cal.5th at p. 878.) If defendant
does not, and he is otherwise eligible under the Reform Act, the court shall resentence the
defendant under the revised provisions of the Reform Act. (Ibid.)
DISPOSITION
We vacate the resentencing order and remand the matter to the trial court to
determine whether resentencing defendant pursuant to the revised penalty provisions of
the Reform Act would “pose an unreasonable risk of danger to public safety.”
(§ 1170.126, subds. (f)–(g).) If so, the court shall reimpose the indeterminate term. If
not, and defendant is otherwise eligible under the Reform Act, the court shall resentence
defendant pursuant to the revised penalty provisions of the Reform Act. (§§ 1170.126,

9.
subds. (f)–(g), 1170.12, subd. (c)(1), (2)(C), 1172.75, subd. (c); see Guevara, supra, 18
Cal.5th at p. 878.)

10.