People v. Gallardo

Full title: THE PEOPLE, Plaintiff and Respondent, v. ROBERT LEE GALLARDO, Defendant…

Court: California Court of Appeals, Fourth District, Third Division

Date published: Jul 22, 2008

No. G039319 (Cal. Ct. App. Jul. 22, 2008)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. ROBERT LEE GALLARDO, Defendant and Appellant. G039319 California Court of Appeal, Fourth District, Third Division July 22, 2008

NOT TO BE PUBLISHED

Super. Ct. No. 06CF2672

ORDER DENYING PETITION FOR REHEARING, MODIFYING OPINION

SILLS, P. J.

1. The petition for rehearing is DENIED. The opinion, filed June 30, 2008, is hereby modified as follows:

2. a. On page 8 of the slip opinion, the words in the first full paragraph that now read “The circumstances that would show disruption of the judicial process from a continuance . . . .” are to be changed to: “The circumstances that show disruption to the orderly processes of justice from a continuance . . . .”

2. b. On page 8 of the slip opinion, after the words “Alas, full reversal is required” insert the following new footnote 2:

“In a petition for rehearing, the Attorney General’s office suggests that a trial court may in fact retain records of its past calendar, and if so, could determine whether a request on a certain date would have disrupted the orderly processes of justice. The office also argues that a court on remand should be able to take into consideration any prejudice to the prosecution or whether the request is dilatory.

“But that’s the problem with this sort of error (which, we hasten to add, cannot properly be described as “Marsden error”). This court is no more enamored with the prospect of a full reversal than the Attorney General’s office. But any remand for a limited hearing under such circumstances would require a speculative excursion into the mists of time under circumstances that would be unfair to the defense, and would pose the hazard of making the trial judges themselves witnesses in their own case on remand. That is, the task would amount to reconstructing the circumstances surrounding a hypothetical continuance motion where there is no record bearing on the factors relating to that continuance motion and the judges themselves would be the main witnesses.

“No, as much as the remedy of a limited hearing on remand is appropriate in other contexts (e.g., People v. Hustead (1999) 74 Cal.App.4th 410, 420 [erroneous trial court denial of Pitchess motion]), the error of treating a motion to discharge retained counsel as a “Marsden motion” is, unfortunately, simply too close to the trial court’s own internal processes to be susceptible to the remedy of limited remand.”

3. These modifications do not affect the judgment.

WE CONCUR: RYLAARSDAM, J., IKOLA, J.