120 Cal.App.3d 149, 10942, People v. Galliher

Docket Nº:10942
Citation:120 Cal.App.3d 149, 174 Cal.Rptr. 467
Opinion Judge:[10] Carr
Party Name:People v. Galliher
Attorney:[7] R. Keenan Davis, under appointment by the Court of Appeal, for Defendant and Appellant. [8] George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, James T. McNally and Carla J. Caruso, Deputy Attorneys Gener...
Case Date:June 08, 1981
Court:California Court of Appeals

Page 149

120 Cal.App.3d 149

174 Cal.Rptr. 467

The PEOPLE, Plaintiff and Respondent,


Marvin W. GALLIHER, Defendant and Appellant.

Cr. 10942.

California Court of Appeal, Third District

June 8, 1981.

Hearing Denied October 2, 1981.

Page 150

Richard K. Davis, Wilton, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty.

Page 151

Gen., James T. McNally, and Carla J. Caruso, Deputy Attys. Gen., for plaintiff and respondent.

CARR, Associate Justice.

Defendant appeals from a judgment entered after a jury found him guilty of escape without force or violence. (Pen.Code, § 4530, subd. (b).) He was sentenced to the middle term of two years, to be served consecutive to the robbery sentence which he was serving at the time of his escape. On appeal, he asserts (1) the trial court abused its discretion in denying his motion for a mistrial, and (2) that he should have been sentenced to only one-third of the two-year middle term for the escape conviction. We will affirm the judgment for the reasons herein stated.


The prosecutorial misconduct asserted as the basis for the mistrial is the alleged breach of an agreement by the prosecutor that he would not interview any of the defense witnesses prior to trial.

The record discloses defendant entered a not guilty plea at time of arraignment and a trial date was set for July 25, 1979. On July 16, 1979, counsel for defendant, Dan O'Neill moved for a continuance of the trial date, apparently on the ground of difficulty in locating prospective witnesses for the defense. 1

O'Neill and the deputy district attorney then in charge of the case, Mr. Nakahara, entered into a stipulation that the People would attempt to locate witnesses for the defense but would not interview these witnesses prior to trial.

On the day set for trial, O'Neill's request to be relieved as counsel for the defense was granted and the public defender was appointed to represent defendant. Defendant later withdrew his plea of not guilty, entered a plea of guilty to the offense as charged, and was sentenced to

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a term in state prison consecutive to the term he was serving at the time of his escape.

In May 1980 defendant successfully moved by petition for writ of habeas corpus to set aside the judgment and sentence and to withdraw his plea of guilty. 2 He was again arraigned and re-entered a plea of not guilty. During the course of trial, defendant learned the prosecutor now handling the case, Mr. Kosel, had spoken with two of the witnesses for the defense prior to trial. Defendant moved for a mistrial, alleging the prosecutor's actions were a breach of the agreement previously entered into between the People and the defense. The trial court denied the motion.

The assertion of prosecutorial misconduct is without merit. Defendant makes no showing the agreement, made prior to his entry of a plea of guilty, was renewed when he was permitted to withdraw his guilty plea and at that time demanded a jury trial. If anything, it appears the agreement was not renewed, as the record demonstrates that neither Kosel nor the deputy public defender subsequently appointed to...

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