People v. Gallardo

Citation92 Cal.Rptr.2d 161,77 Cal.App.4th 971
Decision Date25 January 2000
Docket NumberNo. A088030.,No. A087149.,No. A088200.,A087149.,A088030.,A088200.
CourtCalifornia Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Michael Tony GALLARDO, Defendant and Appellant. In re David Lopez, on Habeas Corpus. The People, Plaintiff and Respondent, v. Hector Mora, Defendant and Appellant.

Bill Lockyer, Attorney General, and Bridget Billeter, Deputy Attorney General, for Plaintiff and Respondent in No. A088200.

HANLON, P.J.

We consider here three appeals, each of which tests the limits on appealability of a postjudgment order.

The first appeal causes us to consider whether a defendant (Michael Tony Gallardo) may create an appealable order by sending the sentencing court a letter asking the court to strike in the interest of justice portions of a completed sentence imposed 15 years earlier. The issue arises because resourceful counsel has formulated an end run around the Three Strikes law — nunc pro tunc dismissal in an old case of charges that otherwise would be considered "strikes" against the defendant in a new case. We conclude that neither the superior court's order declining Gallardo's proposal nor its refusal to reconsider the order is appealable. The appeal is dismissed.

The second appeal (by David Lopez) presents a classic example of a habeas corpus petition presented to the superior court and denied by that court. Instead of filing a new petition in this court, Lopez has sought to appeal. Although he argues for special treatment to gain procedural advantages the appeal would provide and he claims his situation is different because the lower court issued an order to show cause before denying relief, we apply the longstanding rule that the defendant may not appeal denial of a petition for writ of habeas corpus. Although we dismiss his appeal, we will relile the notice of appeal as a petition for writ of habeas corpus and will then consider it separately.

The third appeal (by Hector Mora) straddles the line between appealable orders and nonappealable rulings. Mr. Mora sought a writ of error coram nobis, but the superior court denied relief, describing the motion as one for "writ of error coram nobis or habeas corpus." We conclude that the request was in the nature of a petition for writ of habeas corpus and that appeal does not lie. As with the Lopez appeal, we will refile the notice of appeal as a petition for writ of habeas corpus and consider it separately.

We announce, however, that in the future we will not be as accommodating as we have been to Lopez and Mora when defendants insist on appealing when they should have brought petitions for writs of habeas corpus to this court.

PROCEDURAL HISTORY
Michael Tony Gallardo's Proceedings

On June 3, 1983, Gallardo pled guilty (in the old case) to attempted robbery, aggravated assault and simple kidnapping, charges arising out of a single incident with a single victim. All three counts included deadly weapon enhancements based upon use of an iron bar. The court dismissed a charge of kidnapping for purposes of robbery. On July 8, 1983, the court sentenced Gallardo to the mitigated term of three years in state prison for kidnapping, plus one year for the deadly weapon. The court sentenced him to the middle terms on the other two counts, but made them concurrent with the kidnap count and ordered the other two counts stayed pursuant to Penal Code section 654.1

On July 25, 1996, Gallardo was arrested in San Mateo County (in the new case) on charges of committing lewd acts upon a child (§ 288, subd. (a)), attempting by threats or violence to prevent an executive officer from performing a duty (§ 69) and terrorist threats against a police officer (§ 422). The three 1983 convictions were charged as "strikes" for purposes of enhancement under the Three Strikes law.

In a court trial, the San Mateo court found Gallardo guilty of two counts and found that all the priors were true. He was sentenced to state prison for a term of 30 years to life in the new case.

On appeal in the new case, this court rejected Gallardo's claim that, when considering whether to strike one or more of the prior convictions, the trial court failed to take into account that the three prior convictions arose out of a single indivisible transaction and that two counts had been stayed pursuant to section 654. We concluded that "at the time of sentencing, the trial court considered all relevant factors, including the interrelated nature of the prior strikes, and did not abuse its discretion." (People v. Gallardo (Nov. 30, 1998 A078385) [nonpub. opn.].)

While we were processing the appeal from the new case, Gallardo set into motion the events leading to this purported appeal from the old case. On June 25, 1998, he sent a letter to Judge Richard Arnason, the sentencing court in the 1983 Contra Costa conviction, asking the court to strike nunc pro tunc the two counts the court had previously stayed. Gallardo credited Justice Chin's dissent in People v. Benson (1998) 18 Cal.4th 24, 43-4, 74 Cal.Rptr.2d 294, 954 P.2d 557 (Benson), for the idea of striking the priors, but not for the notion that the court might do so 15 years after pronouncing sentence (which appears to have been counsel's idea). In his letter to Judge Arnason, Gallardo expressed his opinion that a formal motion was not required "since an exercise of discretion under section 1385 is on the court's own motion in any case." Counsel for Gallardo did enlist support from Gallardo's Contra Costa trial attorney, he served opposing counsel, and he suggested a hearing be held to air all views. He offered to appear before the court on July 9 or some other convenient date.

On July 9, 1998, the court issued a minute order decision in the old case denying Gallardo's "invitation" for five stated reasons. Although the minute order recited that the matter was not reported and that defendant was not present, it did not record whether counsel for either side was present.

Gallardo promptly sought reconsideration, challenging each of the court's stated reasons. The court denied the informal request for reconsideration. This appeal followed, purporting to appeal both court orders in the old case.

We issued an order to show cause why the appeal should not be dismissed because the orders are not appealable. In our order, we asked Gallardo to consider and comment upon the following analysis: "Where the defendant seeks to vacate a judgment and reopen the proceedings after appeal has been resolved or the time for appeal has passed, the request, however formulated and characterized, is in the nature of a habeas corpus petition unless it qualifies as a petition for writ of error coram nobis or invokes rights established by ... section 1016.5 or a similar statute. The court's ruling on the request, therefore, does not qualify as an appealable order within the meaning of ... section 1237, subdivision (b)."

After explaining the other two appeals also under consideration and conducting a general review of appealability in criminal cases, we will consider Gallardo's response to our order to show cause.

David Lopez's Proceedings

This is Lopez's third appeal arising from events in 1993. In 1995, we affirmed appellant's conviction for multiple offenses, including torture, forcible oral copulation, child endangerment, kidnapping, assault and possession of a controlled substance. The trial court had sentenced Lopez to 15 years and 4 months based upon 8 of the 26 counts of which Lopez was convicted but, without explanation, "stayed execution" on the remaining counts, including the torture count, which carried a life term. We granted the People's cross-appeal and remanded for resentencing with instructions that the trial court impose sentence for all 26 counts and cite the specific authority for any terms it stayed.

The court resentenced, imposing an indeterminate life term for torture and a determinate term aggregated from various counts and enhancements. Lopez appealed again. In an opinion filed January 24, 1997, we accepted Lopez's theory that the court intended the life term to be concurrent with the others and we ordered the abstract amended to that effect. We then rejected appellant's suggestion that we remand to permit the court to exercise its discretion, in accordance with the subsequent decision in People v. Norrell (1996) 13 Cal.4th 1, 51 Cal.Rptr.2d 429, 913 P.2d 458, whether to stay the sentence on the most serious count. We found that the court's initial sentencing to 15 years and 4 months showed that it realized it was not required to sentence him to the term for the most serious offense. We explained: "Because the trial court was aware of its discretion at the original sentencing to proceed in the manner described in People v. Norrell, supra, 13 Cal.4th 1, 51 Cal. Rptr.2d 429, 913 P.2d 458 and because nothing in our opinion suggests the contrary, there is simply no basis upon which to conclude that the trial court lacked such awareness at resentencing. Accordingly, there is no support for remand as a result of Norrell." (People v. Lopez (Jan. 24, 1997) A073671, typed opn. p. 4.)

Nearly two years later, appellant filed in superior court a petition for writ of habeas corpus. He sought to raise claims of ineffective counsel at...

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