California v. Gallo
Annotate this CaseDefendant-appellant Gerard Gallo was charged by information with elder abuse under Penal Code section 368(b)(1) (count 1) and murder under section 187(a) (count 2). He was convicted by jury as charged, for which the trial court sentenced him 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 After defendant appealed, in an unpublished opinion the Court of Appeal affirmed the judgment. Almost seven years later, defendant petitioned for resentencing under section 1170.95 in pro. per. The State moved to dismiss the petition, arguing defendant was the actual killer, thus, not entitle do relief. The State 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. Defendant was appointed counsel for appealing that denial. Counsel filed a "Wende" brief; defendant did not file a supplemental brief. The Court of Appeal determined "Wende's constitutional underpinnings do not apply to appeals from the denial of postconviction relief," and it had no independent duty to review the record for reasonably arguable issues, but could undertake review "in the interests of justice." Because defendant was the sole killer, and a jury found defendant guilty of second degree murder under section 187 (a), section 1170.95 did not apply to defendant. Thus, the Court independently reviewed the record for potential error, and was satisfied appointed counsel fully complied with their responsibilities as counsel, and no arguable issue was presented.
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