People v. Gallo

Filed 11/19/20
See dissenting opinion.

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E074674

v. (Super.Ct.No. SWF013298)

GERARD JOHN GALLO, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed.

Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant

and Appellant.

No appearance for Plaintiff and Respondent.

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 FACTUAL AND PROCEDURAL HISTORY

On March 10, 2006, an information charged defendant and appellant Gerard John

Gallo with elder abuse under Penal Code1 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defendant appealed, in an unpublished opinion filed on June 18, 2012, in case No.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.

1 All statutory references are to the Penal Code unless otherwise specified.

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 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 and Anders v. California (1967) 386 U.S. 738 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, 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.) 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, italics added.) Recently, in People v. Flores (2020) 54

Cal.App.5th 266 (Flores), our colleagues in Division Three of the Fourth Appellate

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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.) 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.) 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.)

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

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failing to conduct an independent review.” (Flores, supra, 54 Cal.App.5th at p. 274.)

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.)

“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

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the new law and resentencing those who were so convicted.” (People v. Murillo (2020)

54 Cal.App.5th 150, 166 (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.)

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, we have

independently reviewed the record for potential error. We are satisfied that defendant’s

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attorney has fully complied with the responsibilities of counsel and no arguable issue

exists. (Id. at p. 126; Wende, supra, 25 Cal.3rd at pp. 441-442.)

DISPOSITION

The appeal is affirmed.

CERTIFIED FOR PUBLICATION

MILLER
Acting P. J.

I concur:

CODRINGTON
J.

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[P. v. Gallo, E074674]

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 (Wende) and Anders v. California (1967) 386 U.S.

738 to review the record ourselves to determine whether there are any arguable issues.

(People v. Thurman (2007) 157 Cal.App.4th 36, 45; People v. Serrano (2012) 211

Cal.App.4th 496, 498 (Serrano).) Accordingly, we should dismiss the appeal as

abandoned. (Serrano, supra, at pp. 503-504; People v. Cole (2020) 52 Cal.App.5th 1023,

1039 (Cole).)

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 Instead, the majority exercises its discretion to conduct full-scale Wende review,

reading every page of the record to search for arguable grounds for reversal. Because I

believe that decision constitutes an abuse of discretion, I dissent.

I agree with the majority opinion that, although we are not required to conduct

such a review, we also are not prohibited from conducting it. (See Conservatorship of

Ben C. (2007) 40 Cal.4th 529, 544, fn. 7 (Ben C.); People v. Flores (2020) 54

Cal.App.5th 266, 273-274 (Flores).) We have discretion to read the entire record and

look for arguable grounds for reversal. We have that discretion in every appeal, both

criminal and civil—we are always allowed to read the whole record, searching for issues

and requesting supplemental briefing on anything we find. (Gov. Code, § 68081; People

v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; Hibernia Sav. & Loan Soc. v. Farnham

(1908) 153 Cal. 578, 584-585.)

But we almost never do that. Rather, we ordinarily “follow the principle of party

presentation.” (United States v. Sineneng-Smith (2020) __ U.S. __ [140 S. Ct. 1575,

1579].) We presume the correctness of the trial court’s rulings, and we hold appellants to

their burden of demonstrating prejudicial error. (See Ben C., supra, 40 Cal.4th at p. 544,

fn. 8.; Cole, supra, 52 Cal.App.5th at pp. 1039-1040.)

As a result, appellate courts throughout the state ordinarily dismiss appeals in

mentally disordered offender (MDO) proceedings when the appellant files a brief raising

no issues. (People v. Taylor (2008) 160 Cal.App.4th 304, 308.) Similarly, appellate

courts throughout the state dismiss appeals in juvenile dependency cases under In re Sade

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C. (1996) 13 Cal.4th 952 and In re Phoenix H. (2009) 47 Cal.4th 835 when no issues are

raised.

Here, however, the majority opinion concludes that we “should” exercise our

discretion to review the entire record “in the interests of justice.” (Maj. opn., ante, at

p. 5.) I disagree.

No matter how small the record in this case may be, it in no way serves the

interests of justice for us to read it to try to find arguable grounds for reversal, just as it

would not serve the interests of justice for us to read the record searching for ways to

square the circle or turn lead into gold or get blood from a stone. For the reasons already

given, we know without reading the record that it is legally impossible that reversible

error was committed in this case. Consequently, reading the record to try to find arguable

grounds for reversal serves no legitimate purpose and is undeniably a waste of judicial

resources. The majority opinion contains no colorable argument in support of its contrary

conclusion.

This case also highlights the way in which Wende review is inherently unsuited to

appeals from postjudgment orders such as denial of a petition under section 1170.95.

When a criminal defendant’s counsel on the first appeal as of right files a brief raising no

issues, Wende requires us to conduct a “review of the entire record.” (Wende, supra, 25

Cal.3d at p. 441, italics added.) We are required to perform “‘a full examination of all

the proceedings, to decide whether the case is wholly frivolous.’” (Ibid., italics added.)

Such a thorough review makes sense in that context, because reversible error can occur at

any time from pretrial proceedings through sentencing. Consequently, in order to

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vindicate the defendant’s constitutional right to effective assistance of counsel by

confirming that there are no arguable grounds for reversal, we must review every page of

the record. An appeal from denial of a section 1170.95 petition (or any number of other

requests for postjudgment relief, such as resentencing under section 1170.18) is

completely different. As this case illustrates, sometimes one can determine without

reading all or even most of the record that no reversible error occurred, because the

petitioner is categorically ineligible for relief. In such circumstances, Wende review

makes no sense. Why would we read every page of the record when we know in advance

that we will not find anything that matters?

The majority opinion relies on Flores, supra, 54 Cal.App.5th 266, which also

declined to apply the principles that the trial court’s decision is presumed correct and that

it is the appellant’s burden to demonstrate prejudicial error. (Id. at p. 274; see Ben C.,

supra, 40 Cal.4th at p. 544, fn. 8.; Cole, supra, 52 Cal.App.5th at pp. 1039-1040.) Flores

reasoned that we should decide whether to conduct full-scale Wende review by balancing

the private interests, the government interests, and the risk that whatever procedure we

follow will lead to error. (Flores, at pp. 273-274.) Flores concluded that we “can and

should” review the record to search for reversible error when a no-issue brief is filed in a

section 1170.95 appeal, because of “the paramount liberty interests of 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.” (Flores, at p. 274.) That is, because liberty interests are so

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weighty, and the weights of the other two factors are negligible, on balance we should

conduct full Wende review.

I believe Flores’s reasoning and conclusion are unsupported, both as a general

matter and as applied in this case. First, Flores overestimates the weight of the private

interest, as Cole explained. “The private interest [on appeal from a section 1170.95

proceeding] is less weighty than the interests at stake in Wende itself. A defendant’s

interest during the first appeal of right at issue in Wende is ensuring that his liberty is not

taken away unless he is found guilty beyond a reasonable doubt at a trial where his

constitutional and statutory rights are scrupulously honored; the failure to protect this

interest results in wrongful incarceration. A defendant’s interest when seeking

postconviction relief, in most cases, seeks the ‘benefit of ameliorative changes’ in the law

rendered applicable to the defendant by legislative grace rather than constitutional

imperative [citations]; the failure to protect this interest results in the failure to reduce or

eliminate a conviction or sentence that was previously imposed and adjudicated to be

valid. [Citations.] Less is at stake in the postconviction context, which explains why the

Sixth Amendment’s right to a jury’s finding of guilt does not apply to factfinding in

support of postconviction relief. [Citations.] . . . A defendant’s private interest in

seeking postconviction relief is most comparable to a denial of release following a

finding he is not guilty by reason of insanity; in both situations, the defendant’s personal

liberty is at stake but what he is seeking is a modification of a previously adjudicated

order that deprived him of that liberty in the first place.” (Cole, supra, 52 Cal.App.5th at

pp. 1036-1037; see also People v. Dobson (2008) 161 Cal.App.4th 1422, 1425 [declining

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to conduct Wende review and dismissing appeal from denial of release following finding

of not guilty by reason of insanity].)

Second, Flores underestimates the burdens of conducting Wende review in these

cases, because Flores fails to acknowledge that the number of cases is enormous. My

research indicates that Wende briefs have been filed in over 250 appeals from

section 1170.95 proceedings in just the last one and one-half years. The time spent

reading the records in such cases delays our work on the cases of other deserving

litigants, including direct appeals by criminal defendants whose “paramount liberty

interests” (Flores, supra, 54 Cal.App.5th at p. 274) are implicated much more strongly.

(See Cole, supra, 52 Cal.App.5th at p. 1037 [“judicial resources are scarce,” Wende

review is “resource-intensive,” and “the more mechanisms there are for postconviction

relief, the more time they will take to adjudicate and the less time that will remain for

appeals where greater private interests are at stake, such as first appeals of right”].)

Flores does not attempt to grapple with those issues.

As applied here, the Flores holding is indefensible. Reviewing the record to

search for reversible error does impose some burden, however slight. As a result, such a

review is unjustified here because nothing can come of it.

Again, I agree with the majority opinion and Flores that it is within our discretion

to conduct Wende review in this case, as in every case, both criminal and civil. But

judicial discretion ‘“is not a whimsical, uncontrolled power.”’ (Sargon Enterprises, Inc.

v. University of Southern California (2012) 55 Cal.4th 747, 773.) Rather, an exercise of

judicial discretion must have some ‘“reasonable basis.”’ (Ibid.) Because the majority

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opinion’s exercise of discretion has none, I dissent. The appeal should be dismissed as

abandoned.

MENETREZ
J.

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