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In Re Gregory Gallup

January 26, 2012

IN RE GREGORY GALLUP, ON HABEAS CORPUS.


(Super. Ct. No. MF032696A)

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

In re Gallup

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

BACKGROUND

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. [ΒΆ] ...


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