People v. Gallo

• Decision Date: 19 November 2020
• Docket Number: E074674
• Citation: 271 Cal.Rptr.3d 564,57 Cal.App.5th 594
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gerard John GALLO, Defendant and Appellant.

57 Cal.App.5th 594

271 Cal.Rptr.3d 564

The PEOPLE, Plaintiff and Respondent,

v.Gerard John GALLO, Defendant and Appellant.

E074674

Court of Appeal, Fourth District, Division 2, California.

Filed November 19, 2020

OPINION

MILLER, Acting P. J.

FACTUAL AND PROCEDURAL HISTORY

On March 10, 2006, an information charged defendant and appellant Gerard John Gallo with elder abuse under Penal Code ¹ section 368, subdivision (b)(1) (count 1), and murder under section 187, subdivision (a) (count 2). A jury convicted defendant as charged. On December 10, 2010, the trial court sentenced defendant to a total indeterminate term of 15 years to life on count 2. The court also imposed a determinate term of three years on count 1, but stayed the sentence pursuant to section 654. After defendant appealed, in an unpublished opinion filed on June 18, 2012, in case No. E052538, we affirmed the judgment.

Almost seven years later, on March 11, 2019, defendant filed a petition for resentencing under section 1170.95 in pro. per. On April 26, 2019, the People filed a response. On August 5, 2019, defendant filed a reply.

On January 31, 2020, the People made an oral motion to dismiss defendant's petition. The People argued that defendant was the actual killer, and therefore, not entitled to relief. The People stated that defendant punched his father in the face and his father died. When the trial court asked if this was a "single-defendant murder case," the prosecutor responded, "Yes." Thereafter, the trial court denied defendant's petition for resentencing.

On February 6, 2020, defendant filed a timely notice of appeal.

DISCUSSION

After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 and Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and has requested this court to undertake a review of the entire record. Pursuant to Anders , counsel identified the following issues to assist the court in its search of the record for error:

(1) "Did the lower court err when it dismissed appellant's petition for resentencing pursuant to Penal Code section 1170.95 ?"

(2) "Did the lower court prejudicially err by conducting the hearing on appellant's petition for resentencing outside appellant's presence and by failing to obtain a waiver of appellant's right to be present at the hearing."

We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.

We recognize that in People v. Cole (2020) 52 Cal.App.5th 1023, 267 Cal.Rptr.3d 113, Division Two of the Second Appellate District held "that Wende' s constitutional underpinnings do not apply to appeals from the denial of postconviction relief. ( Id. at p. 1028, 267 Cal.Rptr.3d 113.) We have "no independent duty to review the record for reasonably arguable issues," and when a defendant fails to file a supplemental brief, "the Court of Appeal may dismiss the appeal as abandoned." ( Id. at p. 1039, 267 Cal.Rptr.3d 113, italics added.) Recently, in People v. Flores (2020) 54 Cal.App.5th 266, 268 Cal.Rptr.3d 512 ( Flores ), our colleagues in Division Three of the Fourth Appellate District held "that when an appointed counsel files a Wende brief in an appeal from a summary denial of a section 1170.95 petition, a Court of Appeal is not required to independently review the entire record, but the court can and should do so in the interests of justice. This is a pure question of law, so our review is de novo." ( Id. at p. 269, 268 Cal.Rptr.3d 512.) The Flores court went on to reiterate that "while we agree with the primary holding in Cole —that we are not required to conduct an independent review of the record because this is not defendant's first appeal as a matter of right—we have found no legal authority that prohibits us from doing so in the interests of justice." ( Id. at p. 273, 268 Cal.Rptr.3d 512.) We agree with our colleagues in Flores .

"There are three well-established "due process" criteria that are helpful to courts when establishing procedures in the interests of justice: ‘They are (1) "the private interests at stake," (2) "the government's interests," and (3) "the risk that the procedures used will lead to erroneous decisions." ’ " ( Flores, supra , 54 Cal.App.5th at pp. 273-274, 268 Cal.Rptr.3d 512.)

As noted by the court in Flores , "[i]n an appeal from a denial of a section 1170.95 petition, the private interests at stake are the liberty interests of the person who may be in custody and seeking release. [Citation.] The government's interests are the appellate court's interests in making sure there was a correct ruling in the trial court, while balancing fiscal and administrative concerns. [Citation.] And finally, the risk of an erroneous ruling is present if appointed counsel failed to identify a meritorious (reversible) issue on appeal, and the appellate court also failed to identify that issue by failing to conduct an independent review." ( Flores, supra , 54 Cal.App.5th at p. 274, 268 Cal.Rptr.3d 512.) The court went on to state that "[w]hen we weigh the paramount liberty interests of the petitioner, the modest fiscal and administrative burdens to the courts, and the possible (while presumably low) risk of a petitioner's unlawful incarceration due to an unreviewed meritorious issue on appeal, we lean toward caution. That is, although it is not required under law, we think an appellate court can and should independently review the record on appeal when an indigent defendant's appointed counsel has filed a Wende brief in a postjudgment appeal from a summary denial of a section 1170.95 petition (regardless of whether the petition has filed a supplemental brief.)" ( Ibid. )

We agree with Flores that dismissal is discretionary, and that we can and should independently review the record on appeal in the interests of justice. ( Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, fn. 8, 53 Cal.Rptr.3d 856, 150 P.3d 738.)

"In 2018 the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) ..., which abolished the natural and probable consequences doctrine.... Under section 189, subdivision (e), as amended by Senate Bill No. 1437, a defendant is guilty of felony murder 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.’ " [Citations.] 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." ( People v. Murillo (2020) 54 Cal.App.5th 160, 166, 268 Cal.Rptr.3d 457 ( Murillo ).)

" 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’ [citation]; (2) He ‘was convicted of’ or pleaded guilty to ‘first degree murder or second degree murder’ [citation]; and (3) He ‘could not be convicted of first or second degree murder because of changes to Section[s] 188 or 189 made effective’ as a part of Senate Bill No. 1437 [citation]. 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 at least a major participant in the underlying felony and have acted with reckless indifference to human life." ( Murillo, supra , 54 Cal.App.5th at p. 166, 268 Cal.Rptr.3d 457.)

In this case, defendant was the sole killer and a jury found defendant guilty of second degree murder under section 187, subdivision (a). Therefore, section 1170.95 does not apply to defendant.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, 51 Cal.Rptr.3d 98, 146 P.3d 547, we have independently reviewed the record for potential error. We are satisfied that defendant's attorney has fully complied with the responsibilities of counsel and no arguable issue exists. ( Id. at p. 126, 51 Cal.Rptr.3d 98, 146 P.3d 547 ; Wende, supra , 25 Cal.3rd at pp. 441-442, 158 Cal.Rptr. 839, 600 P.2d 1071.)

DISPOSITION

The appeal is affirmed.

I concur:

CODRINGTON, J.

MENETREZ, J., Dissenting.

Gerard John Gallo admitted that he engaged in a one-on-one physical altercation with the victim (his 90-year-old father) and killed him. There were no co-principals. Gallo's trial involved neither the felony murder rule nor the natural and probable consequences doctrine. His murder conviction accordingly has nothing to do with Penal Code section 1170.95 (unlabeled statutory citations are to this code) or Senate Bill No. 1437 (2017–2018 Reg. Sess.). (See § 1170.95, subd. (a)(1).) I learned all the relevant facts by reading Gallo's opening brief and the opinion from his second direct appeal (the first resulted in a retrial).

In 2019, Gallo filed a pro se petition for resentencing under section 1170.95. For the reasons just given, the petition was obviously frivolous and correctly denied. Gallo appealed. Unsurprisingly, appointed appellate counsel was unable to identify any arguable issues and filed a brief raising none. Gallo was given the opportunity to file a personal supplemental brief but declined. Because this is an appeal from an order entered in a postjudgment proceeding after the judgment became final, we are not required under People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, ...