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In Re Gregory Gallup


January 26, 2012


(Super. Ct. No. MF032696A)

The opinion of the court was delivered by: Murray , J.

In re Gallup



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Gregory Gallup, who was granted "own recognizance" (OR) release on charges of reckless driving causing injury (Veh. Code, §§ 23104, 23105, subd. (a)), petitions for a writ of habeas corpus to compel the trial court to vacate its April 19, 2011 order imposing two conditions to his OR release: (1) an unlimited search waiver, and (2) that he not possess any firearms, weapons, or ammunition. The trial court added the new conditions upon granting defendant's request to delete a driving restriction. Defendant contends the new conditions are unconstitutional and unreasonable under the circumstances. We stayed enforcement of the contested conditions and issued an order to show cause why relief should not be granted. The People, as a real party in interest, filed a return.

We will vacate the order releasing defendant on his own recognizance because defendant scribbled the words "without prejudice under duress" next to his signature on the OR agreement, apparently without telling the trial court or the People. In this court, defendant did not mention the scribble until his traverse to the People's return to our order to show cause.

We denounce defendant's apparent gamesmanship in attempting to alter the agreement unilaterally and concealing the attempt from the court and the People. Defendant's scribble does not comply with Penal Code section 1318,*fn1 which requires a defendant's written agreement to OR release conditions. If defendant feels under duress, the trial court on remand is free to revoke OR release -- if the court deems it appropriate.

For guidance upon remand, in the event the trial court reinstates OR release and the contested conditions, we note that on this record we cannot determine whether the firearms/weapons/ammunition condition was reasonable because the trial court did not explain why it was reasonable under the circumstances, but that the search waiver condition is reasonable under the circumstances.


On January 19, 2010, a complaint charged defendant with reckless driving causing injury ("FRACTURE R-SIDE SKULL, L-WRIST, R-LEG, PARALYSIS R-SIDE OF FACE to DONNY DOE AND COMPLETE LOSS OF HEARING OUT OF RIGHT EAR"), on December 11, 2009, in violation of Vehicle Code sections 23105, subdivision (a) (felony) and 23104 (misdemeanor). There was no allegation or evidence of intoxication.

On February 25, 2010, defendant appeared for arraignment and was granted OR release on a number of conditions, including that he not drive a motor vehicle except to work or to court, and that he obey all laws, not leave the state without the court's permission, and waive extradition.*fn2 The trial court did not impose any conditions regarding search or firearms at that time.

At the preliminary examination in August 2010, a witness testified that on December 19, 2009, she was driving her car eastbound on a two-way road with one lane in each direction (West Ripon Road in San Joaquin County) at a speed of 50 to 60 miles per hour in the rain at dusk. A Cadillac was ahead of her. A large "lifted" pickup truck, which was behind her, moved into the westbound lane and passed her. It was later determined that defendant was the driver of that truck. After passing the witness, defendant did not pull back into the eastbound lane but kept going eastbound in the westbound lane. The headlights of an oncoming car appeared in the westbound lane. There was plenty of room for defendant to return to the eastbound lane, yet he did not do so. Surprised that defendant did not move back into the proper lane, the witness pulled over, and said to herself, "Oh, God, please pull back in. Oh, God, please pull back in. Please pull back in. Please turn. Please go somewhere." Defendant's brake lights never came on. The witness watched the right tires of defendant's truck ride right over the top of the smaller oncoming car and launch into the air. A highway patrol officer described the victim's injuries as alleged in the complaint.*fn3 The officer spoke to defendant, who said he was passing eastbound vehicles because they were going too slow. Defendant said he did not want to cut in front of and scare the elderly driver of the eastbound Cadillac traveling ahead of the witness whom defendant passed.

After the preliminary examination, defendant was held to answer, and an information alleging the same two counts was filed on September 2, 2010.

On April 19, 2011, defense counsel orally moved to modify the OR release conditions by deleting the driving restriction because defendant needed to drive his vehicle to and from child custody exchanges. The People objected. The trial court stated it would delete the driving restriction but would impose new terms and conditions, including: "Do not drive without a valid driver's license, insurance, registration. [¶] That you do not own[*fn4 ] any firearms, weapons or ammunition. [¶] Submit to a general search waiver."

The record reflects the following exchange occurred:

"[THE COURT]: . . . Do you agree to those terms and conditions?

"[Defense counsel]: Just for the Court's information, he didn't realize a firearms restriction would be part of the [OR]. He does have firearms that he can bring to a third party to keep them. He wanted to put the Court on notice he didn't realize he was going to be given that restriction this morning.

"[Prosecutor]: He did realize he hurt somebody, though, right?

"THE COURT: That was not a prior term and condition, but that is a term and condition that I impose. If he is wanting me to modify it, it's one I'm going to include. [¶] Do you agree with those terms and conditions?

"[Defense counsel]: Judge, isn't there a form you give them? There's a form. It's, like, 48 hours.

"THE COURT: Yes. I don't know the hours, but I know there's a time requirement. [¶] Do you agree with those terms and conditions?

"THE DEFENDANT: That means my license will no longer be restricted?

"THE COURT: The Court didn't restrict it. We said -- the Court gave you certain terms and conditions. Technically, it wasn't a restriction, it was a term and condition of your promise to appear in court. There's nothing done through the Department of Motor Vehicles. If there is any type of thing to do with the Department of Motor Vehicles, that's separate and we don't have anything to do with that.

"Do you agree with those terms and conditions?


"THE COURT: Based upon that agreement, you will be allowed to remain on your promise to appear in court."

Defendant signed the minute order where it states, "I have received a copy, read and understand the above conditions of agreement." But defendant, apparently without telling anyone, scribbled a handwritten notation next to his signature, which he now decodes as "without prejudice under duress."

On April 20, 2011, defense counsel filed a written motion for modification, arguing the new terms imposed by the court on April 19 regarding searches and firearms/weapons were unreasonable compared to the nature of the charges and therefore are unconstitutional.

At the April 22, 2011 hearing on the motion, defense counsel blamed himself for failing to object to the conditions when they were imposed. The trial court expressed its view that defendant did object at that time "because he questioned me at the time. And I gave him his alternatives. [¶] Because I believe, under Penal Code Section 1275, which the Court has to weigh public safety as the number one concern, the district attorney's office objected to him even being released, saying that it was a serious case. [¶] There was a serious reckless driving, that he was driving in the opposite direction of traffic, casing [sic] significant injury to another person. And that's why they were wanting the driving conditions. [¶] I did, as a courtesy to the defendant, delete those. But I put in my standard terms and conditions. Because I believe once we've discussed bail, the Court has the opportunity to re[]address all the bail conditions, including OR conditions or remanding the defendant, having him in custody. [¶] I believe the general search waiver is ordered -- is necessary in order to determine that he's following all laws. Because obey all laws is a term and condition the Court has consistently imposed and there's not a way to do that without the unlimited search waiver. So I believe that's reasonably related. [¶] With regard to the firearms, weapons and ammunition, this is a felony charge in which there's already been probable cause determined at a preliminary hearing, so I believe it's reasonably related as well. So I'm not going to change the term and conditions. [¶] But he does have the option, if he wants, to re[]address the terms and conditions. I'll give him another bail review hearing. But I'm already saying I'm -- I'm tending to agree with the district attorney's office. Under 1275,[*fn5 ] public safety is an issue with this individual."

Defendant was not present at the hearing on the motion. The trial court said defendant had been ordered to be present but, after consulting the record, was satisfied that defendant had not been ordered to appear that day. The court reiterated its determination that the new terms and conditions were reasonably related.

Defendant petitioned this court for a writ of habeas corpus, asking us to direct the trial court to vacate the search and weapons conditions. We stayed enforcement of the contested conditions and issued an order to show cause. The People filed a return, and defendant filed a traverse.


The writ of habeas corpus is a vehicle to inquire into the cause of an allegedly unlawful restraint. (§ 1473.) "Although the chief use of habeas corpus has been to obtain the release of persons held in actual, physical custody, '[h]istory, usage, and precedent can leave no doubt that, besides physical imprisonment, there are other restraints on a man's liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus.' [Citation.] Thus a prisoner released on bail, although not actually confined, is eligible to seek habeas corpus . . . ." (In re Catalano (1981) 29 Cal.3d 1, 8.)

In a proceeding in habeas corpus, the petitioner bears the burden of alleging, and proving by a preponderance of the evidence, the facts on which he relies in support of his claim for relief. (In re Sassounian (1995) 9 Cal.4th 535, 546-547.) In issuing an order to show cause in such a proceeding, the court makes a non-binding preliminary determination that the petitioner has carried his burden of allegation. (Id. at p. 547.)

We conclude that here there is no agreement as contemplated by section 1318.*fn6 Accordingly, we shall order that the trial court vacate the April 19, 2011 OR order.

As an alternative to bail, "A person may be released on his or her own recognizance in the court's discretion." (Cal. Const., art. I, § 12, 3d par.) A criminal defendant has no constitutional right to OR release in a felony case and is not compelled to accept OR release. (In re York (1995) 9 Cal.4th 1133, 1141, 1150 (York).) OR release is a privilege, not a right. (Id. at p. 1149.) A court can impose reasonable conditions even if those conditions do not directly relate to securing the defendant's appearance at trial. (Id. at pp. 1145-1149.) The conditions need not relate solely to assuring a defendant's appearance at subsequent court proceedings; public safety is the primary consideration. (§§ 1270 (see fn. 7, post), 1318 (fn. 1, ante); York, supra, 9 Cal.4th at p. 1145, italics added.) A court granting OR release may impose conditions that implicate a defendant's constitutional rights, provided that imposition of such conditions is reasonable under the circumstances. (York, supra, 9 Cal.4th at pp. 1146-1147 [court could condition OR release on random drug tests and warrantless searches if reasonable under the circumstances of the case].)

Section 1270*fn7 gives the trial court discretion to allow OR release if the defendant signs an agreement pursuant to section 1318, promising to obey all reasonable OR conditions. "[E]xecution of a written agreement that satisfies all of the requirements of section 1318 is a condition precedent to the release of a defendant on his or her own recognizance." (People v. Mohammed (2008) 162 Cal.App.4th 920, 930 [because there was no evidence of a written agreement conforming to section 1318, there was insufficient evidence to convict defendant of willful failure to appear while on OR under section 1320]; see also People v. Jenkins (1983) 146 Cal.App.3d 22 [affirmed trial court's dismissal of prosecution for failure to appear where section 1318 agreement failed to include acknowledgement that defendant had been informed of consequences and penalties for violation of release conditions].) The section 1318 agreement is a form of unilateral contract; the defendant performs by executing in exchange for the court's forbearance. (Mohammed, supra, 162 Cal.App.4th at pp. 932-933.) Section 1318 requires literal compliance; substantial compliance is not good enough. (Mohammed, supra, at pp. 932-933.) "'Literal compliance with section 1318 is easily achievable and simple to prove while resolution of recurring issues of substantial compliance would cast a significant burden on the judicial system.'" (Mohammed, supra, at p. 932, quoting Jenkins, supra, 146 Cal.App.3d at pp. 25-26, fn. 3.)

Defendant's notation "without prejudice under duress" subjects the purported OR agreement to uncertainty, because a purported consent given under duress subjects an agreement to a possible claim for rescission. (Civ. Code, § 1565 [consent of party to contract must be free], § 1566 [consent which is not free is not absolutely void but may be rescinded].)

Defendant's petition in this court did not argue duress or mention his handwritten notation. This point should not have come as a surprise to defendant and should have been addressed in his petition. His petition argued only that the new conditions were unconstitutional and unreasonable under the circumstances. The People filed an informal response to our order to show cause, arguing in part that defendant waived any claim of error regarding the terms of the OR by agreeing on the record in the trial court to the new conditions. Defendant's reply to the People's informal response argued duress but did not mention his handwritten notation on the OR agreement. Not until defendant's traverse to the People's return to the order to show cause did defendant mention the handwritten notation and argue for the first time that the new OR conditions, even if reasonable, could not be applied to him because he consented under duress. This sequence of events gives an appearance of gamesmanship. But even if defendant's motives were pure and the withholding of facts inadvertent, the bottom line is that the OR agreement in the record does not satisfy section 1318.

Accordingly, we will order that the April 19, 2011 order be vacated and leave it to the trial court on remand to determine whether defendant should remain on his own recognizance.

For guidance on remand, we note that, on this record, we could not determine whether the firearms/weapons/ammunition condition was reasonable, because the trial court did not explain why it was reasonable under the circumstances of this case.

The search condition is constitutional and reasonable in this case. A court can condition OR release on a defendant's agreement to be subject to search and seizure in order to verify his or her compliance with other conditions, including the condition that he or she obey all laws. (York, supra, 9 Cal.4th at pp. 1148-1151; See also People v. Balestra (1999) 76 Cal.App.4th 57, 67 [as a condition of probation, "a warrantless search condition is intended to ensure that the subject thereof is obeying the fundamental condition of all grants of probation, that is, the usual requirement . . . that a probationer 'obey all laws'"].) The imposition of a search condition as part of an OR release does not violate the Fourth Amendment, because a person requesting such release does not have the same reasonable expectation of privacy as a person who is not charged with any crime. (York, supra, 9 Cal.4th at pp. 1149-1150.) Here, given the underlying alleged conduct, which exhibited a blatant disregard for very basic laws, the court would be within its discretion to order an unlimited search waiver to ensure that defendant obeys all laws and to ensure the public's safety.

As the court may again impose the same two conditions, we further note for defendant's benefit what our high court said in York concerning coercion. "Although it may be true that a defendant who is faced with the choice of agreeing to the challenged conditions or remaining incarcerated has a considerable incentive to agree to the conditions, that circumstance, alone, does not render the consent coerced or involuntary. Just as a probationer may be required to consent to supervisory restrictions that could not be imposed upon the general public--'"as a condition precedent to receiving the court's leniency"' [citation]-- an individual who is unable to post bail and seeks OR release similarly may be required to consent to this type of restriction in exchange for receiving the leniency of an OR release." (York, supra, 9 Cal.4th at p. 1150.)


The April 19, 2011 OR order is vacated. In accordance with rule 8.387(b)(1) of the California Rules of Court, this opinion shall be final in this court 30 days after filing of this opinion. Our July 21, 2011 order staying enforcement of the contested OR conditions, having served its purpose, is vacated upon the finality of this decision. As soon as practicably possible after the finality of this decision, the trial court shall hold a hearing to determine whether defendant should remain on OR release, and if so, what reasonable conditions should be imposed.

I concur: HULL , J. RAYE, P.J.

I concur in the result.

The majority vacates the "own recognizance" (OR) release because defendant scribbled the words "without prejudice under duress" next to his signature on the OR agreement. The opinion concludes the scribbles rendered his agreement to the release uncertain and subject to a claim for rescission. Without an effective agreement, defendant is not entitled to OR release. (Pen. Code, § 1318.)

Certainly, an agreement entered into under duress is subject to rescission. But duress is a word of art; a finding of duress represents a legal conclusion. Merely scribbling the word on a contract does not, standing alone, create a basis for rescission and a court, on being apprised of the scribbles, could choose to ignore them as the fulminations of an irate defendant, a not uncommon occurrence. We should not expend judicial resources to address a fit of pique, given that defendant's petition makes no mention of duress. The opinion properly castigates him for his gamesmanship.

However, defendant raises proper concerns regarding the firearms condition; the trial court did not explain the basis for the condition and we cannot infer such from the circumstances of the offense. For this reason a remand is appropriate.


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